Thursday, July 31, 2008
Cal. Ct. App. on Barrier Removal in Public Accommodations
The court concluded that the displays constituted architectural barriers that Mervyn's was required to remove if "readily achievable," and that the plaintiffs had made out a prima facie case that barrier removal in Mervyn's stores was, in fact, readily achievable. But, based on evidence that "Mervyn's would suffer annual lost sales of $70 million, and up to $30 million in lost profits" if it placed its displays sufficiently far apart to permit access, the court of appeal concluded that the company had adequately rebutted that prima facie case. Nonetheless, the court found an ADA violation, because Mervyn's had not adopted alternative methods to provide full and equal access to its goods and services. Mervyn's contended, rather ridiculously in the opinion of your humble correspondent, that it provided adequate alternative methods because its new and newly renovated stores were all accessible (as required by the ADA's new-construction provisions). But the court of appeal, sensibly, rejected that argument: "Mervyn's does not satisfy its obligation to make its merchandise accessible to a disabled shopper at its Cupertino store by constructing a new store 150 miles away in Folsom."
Monday, July 28, 2008
Cert. Papers in Ruiz-Rivera v. Pfizer Pharmaceuticals
Obama, McCain Statements on Disability Issues
Saturday, July 26, 2008
Happy 18th Birthday ADA!
Friday, July 25, 2008
DC Handgun Rules -- "No Gimps Need Apply"
People with Disabilities Get the Screw at the Pump
Despite what Michael Savage blathers on about, persons with disabilities most simply need a little help in order to live an independent life. However, life is full of disappointment and discrimination especially when it comes to people with disabilities. In short, they get the shaft. Oh yes, they may qualify for the best parking spaces but having worked in the disability field for 8 years I can tell you that life is hard and painful for persons with disabilities.
Just pumping your own gas is a feat as this NBC undercover news report discovered. People with disabilities, such as Clayton Porter (who has no arms with which to pump his own gas) rarely get assistance at the pump despite that pesky law requiring it. Watch the videos to see how pump attendants assisted him. Hint: Sometimes they don’t; customers help out instead.
Labels: Public Accommodations
More Disabled Canadians Find Work
A growing percentage of people living with disabilities are finding work, representing the largest increase in the employment rate among Canadians, according to a new report from Statistics Canada.
The latest data released Thursday from the Participation and Activity Limitation Survey (PALS) found that between 2001 and 2006, the employment rate for people with disabilities rose from 49.3 per cent to 53.5 per cent.
In comparison, the employment rate for people without disabilities increased from 73.8 per cent to 75.1 per cent over the same five-year period.
In absolute numbers, that translates to 339,590 more people with disabilities working by 2006, compared with 874,960 more people without disabilities, according to Statistics Canada.
Gosh, maybe we should do whatever it is they're doing.
Thanks to Ravi Malhotra for the pointer.
Wednesday, July 23, 2008
Journal of Law and Education Symposium on Rowley
John A. Lanear & Elise M. Frattura, Rowley Reconsidered: Revisiting Special Education's Landmark Case After 25 Years, 37 J.L. & Educ. 307 (2008);
Amy June Rowley, Rowley Revisited: A Personal Narrative, 37 J.L. & Educ. 311 (2008);
Julie F. Mead & Mark A. Paige, Board of Education of Hendrick Hudson v. Rowley: An Examination of Its Precedential Impact, 37 J.L. & Educ. 329 (2008);
Philip T.K. Daniel, "Some Benefit" or "Maximum Benefit": Does the No Child Left Behind Act Render Greater Educational Entitlement to Students with Disabilities?, 37 J.L. & Educ. 347 (2008);
Dixie Snow Huefner, Updating the FAPE Standard Under IDEA, 37 J.L. & Educ. 367 (2008); and
Jean B. Crockett & Mitchell L. Yell, Without Data All We Have Are Assumptions: Revisiting the Meaning of a Free Appropriate Public Education, 37 J.L. & Educ. 381 (2008).
Tuesday, July 22, 2008
Disability Bill Divides Higher Ed Groups
Drivers Truckin' Despite Disabilities
If your daily commutes on I-95 were not scary enough, consider this: the federal government has found "hundreds of thousands" of bus and big-rig drivers have serious medical conditions.
Connecticut officials, including the state troopers who patrol the state's roads, say the issue is not a prominent one here.
The study, compiled recently by the U.S. Government Accountability Office found "hundreds of thousands of tractor-trailer and bus drivers in the U.S. carry commercial driver's licenses despite also qualifying for full federal disability payments for medical conditions" involving such things as heart disorders, sleep apnea and diabetes. U.S. Rep. Christopher Shays, R-4, said Congress' Transportation and Infrastructure Committee will hold a hearing on this issue Thursday.
"We need to take steps to ensure those drivers who shouldn't be driving, aren't," said Shays, whose district includes most of Fairfield County. "I am looking forward to working on a bipartisan basis to improve our transportation safety."
The GAO report is here. I think it's worth taking note of the Federal Motor Carrier Safety Administration's comments on the report, as summarized by the GAO:
FMCSA stated the following:
• Disability, even full disability associated with a diagnosis, does not necessarily mean that an individual is medically unfit to operate a commercial vehicle.
• Disability is not related necessarily to when a medical condition occurred or recurs. The onset of a disease or disabling medical condition is more relevant to medical fitness than when the disability benefits and payments began. As an example, a fully disabled individual may have accommodated to the disability and may improve with treatment while receiving lifelong disability payments.
• In general, a medical diagnosis alone is not adequate to determine medical fitness to operate a commercial vehicle safely. As an example, multiple sclerosis, while disabling, has several progressive phases, and is not necessarily disqualifying.
In addition, FMCSA did not believe that we accurately characterized the 15 cases where careful medical evaluations did not occur. FMCSA stated that this implies these drivers were evaluated by someone for medical fitness for duty, but in 9 cases, the driver was not certified or not evaluated by a medical examiner.
We all want safe roads, but the comments of the FMCSA -- an agency whose entire mission is to keep the roads safe (and which therefore will often undervalue the interests of people with disabilities, as I've argued here) -- suggest we should all take a deep breath before going out and doing anything extreme based on this GAO report. Lots of drivers with lots of disabilities are going to be perfectly safe, and while others will pose risks, lots of drivers without disabilities pose risks, too. There is no such thing as zero risk, so the question has to be one of balancing risks and benefits. That balance is extremely unlikely to favor excluding all individuals with disabilities from driving trucks -- though the tone of some of the coverage of the GAO report suggests support for such a broad exclusion.
Support Grows for Disabled Job Seekers
There are 22 million working-age Americans with disabilities who have come of age under the Americans With Disabilities Act -- passed 16 years ago this month -- which helps to prevent job discrimination against qualified disabled individuals. But only 38% of the nation's working-age disabled have a job, compared with 78% of able-bodied people.
Over the past few years, companies have begun taking bigger steps to bring more of the disabled into the professional work force. The latest effort is partly due to the efforts of Rich Donovan, a former Merrill Lynch trader who has cerebral palsy, a disability that limits his speech and movement.
Mr. Donovan recalls the resistance he met from many recruiters who weren't sure he was nimble enough to perform the physical aspects of a busy trader's job. Even his mentors at Columbia University's business school tried to talk him out of it, saying he'd make a "fine risk manager." He was hired at Merrill and quickly hatched a plan to get more disabled people hired at the firm.
Mr. Donovan's idea was based on the premise that corporate America should recruit and give qualified people with disabilities the same sort of opportunities that his firm -- and most big companies -- already had in place for minorities and women. Merrill agreed to give it a try, and in 2006 Mr. Donovan founded LimeConnect, with the company as its first partner. Today, the organization matches disabled college-level and professional candidates through private recruiting efforts led by its four major partners: Merrill, Goldman Sachs, PepsiCo and Google. Last fall, Lime helped its partners source more than 300 disabled internship candidates from two dozen universities, including Harvard, M.I.T., Princeton and Georgetown. In May, Lime invited 60 candidates for job interviews in New York; at least a dozen have been invited back for further interviews.
Monday, July 21, 2008
That's Commissioner Galanter to You!
D.C. Circuit: Sexual Relations is a Major Life Activity, and Employer Need Not Know of Limitation to be Liable
A Recent History of the Disability Rights Movement in El Salvador
NLJ on ADAAA
Human Resource Executive Online on ADAAA Hearing
3000 People with Disabilities Living in Outdated Institutions
UP TO 3,000 people with disabilities are living in outdated institutions and need be transferred to more suitable community settings, it has emerged.
Records obtained by The Irish Times show that health authorities believe that the numbers living in "congregated settings" are significantly greater than previously estimated and they should be in receipt of care in the community.
Officials say the process of de-institutionalising people in older facilities will take years and will require substantial resources.
In some instances the sale of large institutions may be used to fund some or all of the
capital costs involved.
However, records show that authorities are concerned that staffing costs in a greater number of community residences are likely to be much greater.
Part of the reason health authorities are moving to take action on the issue of those living in institutional care is the State's decision to sign up to a UN Convention on the Rights of Persons with Disabilities. The Government has not yet ratified the convention, however.
New Work Incentives in Australia
The Federal Government has announced changes to assist more disability pensioners to find employment by removing disincentives for people who want to look for work.
Currently recipients who sign up with an employment agency have their benefits reviewed automatically and can lose some entitlements even before they get a job.
Federal Minister for Employment Participation, Brendan O'Connor, says from September the process will be changed so people will not lose any payments when they begin looking for work.
"My job is to see more people in work and I think this is certainly a worthwhile opportunity to consider whether the increase will occur as a result," he said.
VA Secretary Peake Urged to Stop Blocking Voter Registration
Today, leading voting rights groups called on James B. Peake, Secretary of the U.S. Department of Veterans Affairs (VA), to reverse a recent decision that prohibits VA offices and facilities from offering voter registration and potentially registering tens of thousands of veterans.
American Association of People with Disabilities (AAPD), Common Cause, Demos and the League of Women Voters urged Secretary Peake to approve future state requests to allow voter registration at VA agencies and offices. This would be a reversal of his ruling on a May 1, 2008, request by California Secretary of State Debra Bowen that he agree to the designation of VA sites in her state as voter registration agencies, as permitted under the National Voter Registration Act (NVRA). Connecticut Secretary of State Susan Bysiewicz made a similar request on July 2, 2008.
"As a former secretary of state, I know how important it is for our veterans to be able to participate in our democracy," said Miles Rapoport, president of Demos and former Secretary ofState of Connecticut. "I urge James Peake to stop blocking voter registration by our vets."
The national voting rights groups - in conjunction with their grassroots state-based chapters around the country - also sent letters today to chief election officials in each state, calling on them to request that the VA agree to the designation of its offices
and facilities in their states as voter registration agencies.
"Designation of VA facilities as voter registration agencies is the single most important action that can be taken to help veterans participate in our nation's elections," said Bob Edgar, president of Common Cause. "We will be working with state election officials to make this a reality."
ADA Watch/NCDR: Talk Radio Should Fire Michael Savage
The leader of a national coalition of disability, civil rights and social justice organizations called on Talk Radio Network to fire talk radio host, Michael Savage for his hateful attacks on children and adults with physical and mental disabilities. Jim Ward, founder and president of ADA Watch and the National Coalition for Disability Rights (NCDR), stated:
"ADA Watch/NCDR calls on Talk Radio Network to fire Michael Savage. As America prepares to celebrate the 18th anniversary of the Americans with Disabilities Act (ADA) on July 26th, people with disabilities, parents, family members, friends and advocates across the nation are outraged over Savage's latest attack on people with disabilities. His despicable assault on children with autism -- calling them "frauds" and "brats" -- is rightly being condemned as hateful and bigoted. But it is just the latest of Savage's numerous and painful attempts to demean and disenfranchise people with disabilities."
Savage has also used his bully-pulpit to declare that:
-- High levels of asthma impacting minority children was because "the children got extra welfare if they were disabled." (July 2008)
-- The "handicapped" workers at the Phoenix Cafe would "drool" and put dung in diners food. He made up names for the food on the menu, such as "nutburger." (July 2002)
-- Members of the disability rights community are the "Wheelchair Mafia."
-- The Americans with Disabilities Act (ADA), the world's first civil rights law for people with disabilities, should be called the "Lawyers' Improvement Act."
-- His political opponents are "degenerate slime bags" with "mental disorders" and have a "virus like leukemia."
-- When he was younger, he "touched the hand of a midget [Dwarf]," it really "freaked him out" and, since that episode, he doesn't like public places. (June 2004)
-- The "autism lobby of devastated parents is just a scam to get more money."
Wednesday, July 16, 2008
NYT on Restraint of Students with Disabilities in Mainstream Settings
For more than a decade, parents of children with developmental and psychiatric problems have pushed to gain more access to mainstream schools and classrooms for their sons and daughters. One unfortunate result, some experts say, is schools’ increasing use of precisely the sort of practices families hoped to avoid by steering clear of institutionalized settings: takedowns, isolation rooms, restraining chairs with straps, and worse.
No one keeps careful track of how often school staff members use such maneuvers. But last year the public system served 600,000 more special education students than it did a decade ago, many at least part time in regular classrooms. Many staff
members are not adequately trained to handle severe behavior problems, researchers say.
In April, a 9-year-old Montreal boy with autism died of suffocation when a special education teacher wrapped him in a weighted blanket to calm him, according to the coroner’s report. Two Michigan public school students with autism have died while being held on the ground in so-called prone restraint.
Michigan, Pennsylvania and Tennessee have recently tightened regulations governing the use of restraints and seclusion in schools. California, Iowa and New York are among states considering stronger prohibitions, and reports have appeared on blogs and in newspapers across the country, from The Orange County Register to The Wall Street Journal.
“Behavior problems in school are way up, and there’s good reason to believe that the use of these procedures is up, too,” said Reece L. Peterson, a professor of special education at the University of Nebraska. “It’s an awful combination, because many parents expect restraints to be used — as long as it’s not their kid.”
Ireland & Bales on Employment Discrimination Under Title II of the ADA
Title I of the Americans with Disabilities Act prohibits employment discrimination on the basis of discrimination. Title II prohibits discrimination by providers of public services. Title I contains several exclusions (federal employees, employees of small state agencies) and procedural requirements (filing a charge of discrimination before filing suit) that are not in Title II. If an employer is covered by Title II but not by Title I, may that employer be sued for disability discrimination in employment?
The circuits are split on the issue. The Ninth Circuit has held that because Title I explicitly covers employment, and because Title II covers public services but does not specifically mention employment, Congress must have intended for Title II not to cover employment. This article, however, agrees with the circuits that have held that Title II covers employment discrimination claims, for three reasons. First, the plain textual language of Title II broadly prohibits all discrimination by public entities. Second, the ADA's legislative history indicates that Congress intended Title II to apply to employment discrimination. Third, the Department of Justice's regulations interpreting Title II are on point and entitled to deference.
This is an updated and significantly condensed version of an article that will be published imminently at 28 N. Ill. U. L. Rev. (2008).
Senate HELP Committee Holds Hearing on ADA Amendments Act
Wednesday, July 09, 2008
Northern District of California Decides Interesting ADA/Taxi Medallion Case
The city granted waivers of the full-time driver requirement for individuals with health conditions that temporarily prevented them from driving. But it argued that granting such a waiver to individuals with long-term disabilities would fundamentally alter the city's taxi medallion program by transforming it from a license to work to a program of disability insurance. The district court agreed and granted summary judgment to the city.
Tuesday, July 08, 2008
California Court of Appeal Upholds Award of Attorneys' Fees Against Molski
This decision seems pretty clearly to conflict with last week's decision by the Ninth Circuit in Hubbard v. SoBreck, LLC, about which I blogged last week. In Hubbard, the Ninth Circuit held that Section 55 is preempted to the extent that it authorizes an award of fees to prevailing defendants in nonfrivolous state-law accessibility claims that parallel ADA accessibility claims. Expect a petition for rehearing in the Ninth Circuit in Hubbard, an appeal to the California Supreme Court in Molski, or both. This seems like a conflict that can't be allowed to stand.
Court Battle to Drive Golf Cart on Sidewalk
Morris Steinheimer and Mandy Fugate live in Treasure Beach.
They both suffered brain injuries years ago which inhibit their ability to walk.
So they often have traveled by golf cart to church, the YMCA, and the grocery
Steinheimer told First Coast News, "It gives us the means to get around town and be independent."
However, state law says operation of motorized vehicles is not allowed on sidewalks.
That's where Steinheimer has driven his golf cart.
St. Augustine Police Chef Richard Hedges said Steinheimer has received about a half dozen citations and warnings for driving on sidewalks.
Steinheimer, Fugate and their caregiver, Sandy Middlemiss, argue the state law violates the Americans with Disabilities Act.
"Just look at the federal ADA laws," Middlemiss said. "It's clear that a person with mobility impairment uses a golf cart as a mobility device where pedestrians go. How much clearer can that get? It's federal law. Federal law supersedes local."
Op-ed on Down Syndrome and Abortion
Last weekend at my favorite ice cream shop, I met an adorable 4-year-old boy named Sully. He had bright blue, inquisitive eyes, a happy smile and, judging from his telltale facial features, Down syndrome.
Only weeks before I had read a staggering statistic: 92 percent of unborn children diagnosed with Down syndrome are now aborted. I don't normally get overly exercised about the issue of abortion, but this number struck me as I looked at Sully. With only 8 percent of prospective Down parents choosing to have their child, Sully may grow up with no peers to interact with in his life. Somehow, we are saying the lives of children with Down mean less than those of so-called normal children.
Admittedly, the economic costs of raising children with Down can be onerous. The emotional strain can cause rifts between parents. There can be serious medical complications. As a matter of fact, in a survey conducted by Brian Skotko at Harvard Medical School, 3,000 mothers receiving the news that their child would have Down syndrome reported that physicians expressed negative views about them continuing their pregnancies.
Labels: Medical Ethics
The Folks at the Heritage Foundation Don't Like the ADAAA
Last week, with the backing of big business groups, organized labor, and disability rights groups, the House of Representatives passed an amended version of the ADA [Americans with Disabilities Act] Restoration Act (ADARA, H.R. 3195). Though touted by supporters as a moderate compromise, the legislation greatly expands the class of Americans who are "disabled," and thus legally entitled to special treatment. This new classification would impose a heavy burden on employers, especially small businesses, while actually disadvantaging those who have serious disabilities. At a time when economic growth has slowed and unemployment has begun to tick upward, Congress should avoid policies that reduce businesses' flexibility, raise the cost of labor, promote inflation, and dampen America's economic competitiveness in the global market.
NYT on Accessible Playgrounds
Washington Post on ADA Amendments Act
Thursday, July 03, 2008
Note on the ADA and Second Injury Funds
Existing in forty-nine states and Washington D.C. as late as 1991, SIFs have been steadily eliminated over the last fifteen years. Called superfluous by academics, business interests, and lawmakers, the essential criticism is that the purpose of SIFs was rendered obsolete by enactment of the Americans with Disabilities Act of 1990 (ADA) and complementary state law anti-discrimination provisions.
Connecticut's decision to close its SIF to new claims is emblematic of this trend. The wealthiest state, Connecticut has not only the highest per-capita income in the country, but the highest manufacturing sector pay as well. A solidly “blue” state, Connecticut is generous in terms of workers' compensation benefits, ranking fourth highest among the states for maximum weekly benefit cap. For these reasons, the elimination of Connecticut's SIF was a curious public policy decision. A state with tremendous fiscal resources and a generous compensation system, Connecticut would seem an unlikely candidate to repeal a disabled workers' benefit program.
With a particular focus on Connecticut, this article attempts to show that elimination of SIFs premised on the mere existence of the ADA is an insufficient policy justification. While the ADA represents both a more comprehensive approach to the problem of disabled employment, and includes strong punitive measures, the ADA, in and of itself, cannot eradicate hiring discrimination against the disabled. State elimination or closure of SIFs is a premature abandonment of a governmental mechanism that is well suited to supplement the ADA and similar state law.
Tuesday, July 01, 2008
Gov. Purdue Announces Olmstead Agreement Signed
Gov. Sonny Perdue announced Tuesday that state officials signed a voluntary compliance agreement with the U.S. Department of Health and Human Services Office of Civil Rights that formalizes an effort to transition mentally ill and developmentally disabled Georgians out of state hospitals.
"Every Georgian who faces mental illness or developmental disabilities has the right to be treated in a way that not only ensures the best outcome, but allows for the highest quality of life," said Gov. Perdue. "We've worked hard to make this agreement work, and the state of Georgia is committed to completing this effort."
Under the Olmstead Strategic Plan, Georgia has worked for years to make quality community services more available to those with mental and developmental disabilities. The Olmstead Plan was created after a 1999 U.S. Supreme Court
ruling (L.C. & E.W. vs. Olmstead) that interpreted the Americans with Disabilities Act to mean that states must provide appropriate services for the disabled in the most integrated setting (i.e., where individuals can interact with non-disabled people to the fullest extent possible).