Ezekiel Emanuel on Physician-Assisted Suicide

See this opinion piece by Dr. Emanuel on the New York Times's website.  The conclusion:

Instead of attempting to legalize physician-assisted suicide, we should focus our energies on what really matters: improving care for the dying — ensuring that all patients can openly talk with their physicians and families about their wishes and have access to high-quality palliative or hospice care before they suffer needless medical procedures. The appeal of physician-assisted suicide is based on a fantasy. The real goal should be a good death for all dying patients.

FoxRobBlog on New Oliver Case

Awesome disability rights lawyers (and FOBs) Tim Fox and Amy Robertson have a new blog over at their law firm's website; check it out.  They have a post on an important new case involving the Ninth Circuit's pleading standards for ADA public accommodations claims.  The case is Oliver v. In-N-Out Burgers, — F.R.D. —, 2012 WL 5266978 (S.D. Cal., Oct. 19, 2012).  Here's Amy's write-up:

This case does two important things: 

First, it permits the plaintiff to amend his complaint to add barriers he learned about during the litigation. This is clearly a best practice in light of the Ninth Circuit’s holding in Oliver v. Ralphs Grocery Company, 654 F.3d 903 (9th Cir. 2011), limiting the plaintiff — the same Mr. Oliver! — to the barriers alleged in his complaint. The Ninth Circuit had held, earlier that year, that “[a]n ADA plaintiff who has Article III standing as a result of at least one barrier at a place of public accommodation may, in one suit, permissibly challenge all barriers in that public accommodation that are related to his or her specific disability.” Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 950-51 (9th Cir. 2011). These holdings are harmonized if a plaintiff is permitted to amend his complaint, during the litigation, to allege additional violations. 

Second, it addresses new state law pleading standards set to take effect on January 1, 2013, requiring complaints to allege the dates on which they encountered the alleged barriers. The defendant argued that the amendment would be futile because it did not contain these required dates. The court rejects this argument, holding that state pleading standards do not apply in federal court.

Why We Need Accessible Public Transit for All People with Disabilities

See this article, which begins:

Regional Transportation Authority Chairman John Gates Jr. apologized Wednesday for referring to paratransit for the disabled as "federally mandated limousine service." 

Gates said he made the remark "without thinking" while trying to describe the difficulty of providing funding for paratransit service as required by the Americans with Disabilities Act. 

"My comments were inappropriate and unfortunately could be misconstrued to suggest bias against the disabled community," Gates said at a meeting of the RTA board. "Nothing can be farther from the truth."

Separate paratransit systems for people with disabilities may be a necessary accommodation to sunk investments in inaccessible public transit systems, but, as Gates's comments show, they are stigmatizing.  Universally accessible public transit is far preferable.

Philadelphia CityPaper on Pennsylvania Olmstead Litigation

See this interesting article.  An excerpt:

Carl Solano’s sister is 58 years old, but, with her Down syndrome, her mental age has been pegged at less than 1. Since the 1960s, she’s lived at the White Haven Center, a state-run Intermediate Care Facility (ICF) about 100 miles north of Philly. “The only thing she knows is the staff, the other residents, the place that has been her home for 40 years,” says Solano, a Philadelphia lawyer. “She doesn’t know danger there. She’s in a place that’s protected.” Now, Solano is terrified that she could be pushed out of that sheltered environment.

That’s because, as part of a legal settlement signed last year, the Department of Public Welfare (DPW) agreed to begin moving certain people with intellectual disabilities out of ICFs and into community-based settings, typically small-group homes. Solano and seven other guardians of people living in ICFs are suing in federal court to intervene in the settlement. “People trusted the Department of Public Welfare. They feel betrayed,” says Solano, who believes the state facility is the best place for his sister and some others like her.

The thing is, the conventional wisdom says otherwise — and so do disability-rights advocates, the state and even the federal government, which operates under the Americans with Disabilities Act as well as a Supreme Court decision known as Olmstead, both of which bar states from segregating people with disabilities into institutions if they can live elsewhere. “Almost 100 percent of professionals in this field believe that people are better served in their communities than in institutions, period,” says Maureen Cronin, executive director of the Arc of Pennsylvania, which advocates for the disabled. 

* * *. 

The thing is, DRN managing attorney Robert Meek says Solano’s concerns are beside the point: The goal of his class-action lawsuit was never to force anyone out of ICF care. “This case was not about people who don’t want to move [or whose guardians don’t want them to move]. The case was about the state’s failure to offer community-based services to people. If you’re opposed to moving into the community, you’re not a member of the class.”

Final Version of My Deinstitutionalization Article

You can access the final, published version of my piece, The Past and Future of Deinstitutionalization Litigation, 34 Cardozo L. Rev. 1 (2012), here.

Brief Blog Hiatus

This is an unduly packed week or so for me, so don't expect any updates (unless it's something really super-important) until sometime next week.

Washington Governor Gregoire Decides Not to Seek Cert. in M.R.

Big news, and a big win for ADAPT, ASAN, and other advocates who worked hard to encourage Governor Gregoire to let the Ninth Circuit's ruling stand.  See this AP story, which begins:

Washington Gov. Chris Gregoire has decided to not appeal a recent appellate court decision that struck down budget cuts reducing the amount of in-home care hours available to Medicaid clients in the state.

Here's the press release from Governor Gregoire's website:

Gov. Chris Gregoire today issued the following statement regarding the state’s decision to not appeal a 9th Circuit Court of Appeals ruling granting a preliminary injunction in the M.R. vs. Dreyfus case to the U.S. Supreme Court: 

“I have, and will continue to support the landmark U.S. Supreme Court Olmstead ruling. We heard the concerns of many advocates who feared that Supreme Court review of the 9th Circuit decision could have had broader negative implications. While any appeal to the U.S. Supreme Court would have made it clear that the state did not seek to undermine the Olmstead ruling, my team and I have worked tirelessly to avoid taking this case to that level at this time. 

“I worked closely with Health and Human Services Secretary Kathleen Sebelius to obtain the guidance we needed, and on the basis of that guidance Washington state believes we can balance our budget while maintaining the intent of the Americans with Disabilities Act and the Olmstead ruling.

“The letter today from HHS and the U.S. Department of Justice affirms that, with appropriate process, Washington state can reduce its service level and still be consistent with federal law. Attorney General Rob McKenna and I agree that it is in the best interest of all citizens to return to the federal district court to obtain a final decision, rather than seek the review of the 9th Circuit’s decision by the U.S. Supreme Court at this time. 

“I thank both Secretary Sebelius and U.S. Attorney General Eric Holder for their effort and assistance. In the meantime, I remain proud of our state’s leadership in providing personal care services. Even with moderate reductions, Washington state remains one of the most generous states in the nation to provide services that keep our elderly and people with disabilities in the community. And I’m proud of our Department of Social and Health Services, which used its head and its heart to ensure those with the greatest need were least affected.”

As I said when the Ninth Circuit denied rehearing, it was far from clear that the Supreme Court would have granted cert. in this case had the state filed a cert. petition.  Still, Governor Gregoire's decision not to file a cert. petition removes a potential threat to Olmstead litigation, and it has to be understood as resulting significantly from the pressure that organized people with disabilities put on the state.

N.D. Cal. Grants DOJ Intervention in Challenge to LSAC Denials of Testing Accommodations

See this press release from yesterday.  It begins:

A federal judge issued an order today allowing the Justice Department to intervene in a disability discrimination lawsuit against the Law School Admission Council (LSAC). The department’s intervention expands the case from a statewide class action limited to California residents to a nationwide pattern or practice lawsuit.

The lawsuit, The Department of Fair Employment and Housing v. LSAC Inc. et al., charges LSAC with widespread and systemic deficiencies in the way it processes requests by people with disabilities for testing accommodations for the Law School Admission Test (LSAT). As a result, the lawsuit alleges, LSAC fails to provide testing accommodations where needed to best ensure that those test takers can demonstrate their aptitude and achievement level rather than their disability.

The department’s complaint identifies additional victims of LSAC’s discriminatory policies and details LSAC’s routine denial of testing accommodation requests, even in cases where applicants have submitted thorough supporting documentation from qualified professionals and demonstrated a history of testing accommodations since elementary school.

The department further alleges that LSAC discriminates against prospective law students with disabilities by unnecessarily “flagging” test scores obtained with certain testing accommodations in a way that identifies the test taker as a person with a disability, disclosing otherwise confidential disability-related information to law schools during the admissions process. LSAC’s practice of singling out persons with disabilities by flagging their scores –– is discrimination prohibited by the Americans with Disabilities Act (ADA). The department’s proposed complaint seeks declaratory and injunctive relief, compensatory damages and a civil penalty against LSAC.

Talk of the Nation on Institutionalization of Kids with Disabilities

You can find the transcript, with a link to the audio, here.

Arlington, TX, Sidewalk Access Lawsuit Settled

See this article, which begins:

After years of litigation, including an appeal to the U.S. Supreme Court, Arlington has reached a settlement with a group of residents who allege the city failed to ensure its sidewalks were accessible to people with disabilities. 

Richard Frame, a quadriplegic resident, sued Arlington in 2005 over the lack of accessible sidewalks and curb cuts that he said were required under the federal Americans with Disabilities Act. 

Over the years other plaintiffs from Arlington joined the case, citing problems such as broken, unconnected or obstructed sidewalks, missing or badly sloped curb ramps and inadequate handicap parking that made getting around town difficult for them. 

Under the settlement approved by the Arlington City Council late Tuesday, Frame does not receive any money. However, the city will pay about $310,322 in attorney fees and expenses for the plaintiffs.

For my earlier coverage of this case, see this post.

California City Pays Serial Litigant $15K Not to Sue the City or Any Business Within It

As all three of my blog's readers know (I have it on good authority I picked up a third reader!  Yay!), I have taken an "anti-anti-" position on serial ADA public accommodations litigation.  I understand the frustration that many business owners express about individuals with disabilities and their lawyers who go into a town and sue dozens of inaccessible businesses at a pop before moving on to the next town and doing it again.  But to focus one's criticism on the serial litigators, I have argued, misses two key points: (1) serial litigation wouldn't work if so many businesses didn't still fail to comply with the ADA, a law that is now more than 20 years old; and (2) the remedial structure of the ADA's public accommodations title encourages serial litigation.  In a very large swath of cases (perhaps the overwhelming majority of those cases), serial ADA public accommodations litigators are suing businesses that are actually in violation of the statute.  And whatever one might think of the attractiveness of the tactic of suing lots of businesses at once, the prospect of being sued by a serial litigator does place an incentive on businesses to get educated about the ADA and get into compliance. That is why I've generally opposed efforts to limit serial ADA litigation.

But I have no tolerance for serial litigation that does not advance compliance with the ADA -- litigation that does not contribute to making businesses more accessible.  Which brings me to the following story, which begins:

George Louie is a West Sacramento man who has sued hundreds of Northern California cities and businesses for failing to comply with the federal Americans with Disability Act. 

This week, Yuba City announced it has agreed to pay Louie $15,000 to leave the city and its businesses alone for good. 

"He's agreed not to file ADA lawsuits in our city, period," said Darin Gale, Yuba City's economic development manager. "There's no timetable, it's forever." 

The agreement, which Yuba City officials say is the first of its kind, has many business owners in the Sutter County town drawing a sigh of relief.

Read more here: http://www.sacbee.com/2012/10/13/4907961/yuba-city-pays-man-not-to-file.html#storylink=cpy

I understand why the city would pay $15,000 if it would get this plaintiff to go away, but a $15,000 bounty, paid for by the city, does absolutely nothing to incentivize business owners to improve accessibility or comply with the law.  Indeed, the promise never to file an ADA lawsuit against the city or businesses within the city, at any point in the future -- even for violations that haven't yet occurred -- undermines incentives for compliance.  Indeed, to the extent that the agreement covers claims that haven't yet arisen (because there is no violation yet or Mr. Louie hasn't yet encountered or learned of the violation), it is likely unenforceable.  See 14 Penn Plaza LLC v. Pyett, 556 U.S. 247, 265 (2009) (reaffirming "that [substantive] federal antidiscrimination rights may not be prospectively waived").  But even to the extent that the agreement is enforceable, it seems to me quite discreditable.

By the way, California's recent anti-serial-litigation legislation will do virtually nothing to stop conduct like this.  It will, to be sure, prohibit plaintiffs' lawyers from placing a request for money in a demand letter (likely a First Amendment violation), but it won't stop defendants from offering, and plaintiffs from accepting, settlements like this.  And it won't stop defendants from asking plaintiffs what it will take to get them to go away, and plaintiffs from responding by saying, "Give me the Louie v. Yuba City deal."  Nor, as Julia Campins recently pointed out, should the other provisions of the new legislation stop cases like this.  The legislation will have real effects on legitimate litigation, but it won't address the real problem that this case illustrates.

SDNY Zagat's Initiative Brings First Lawsuit: Rosa Mexicano

See this story in the New York Observer, which begins:

Rosa Mexicana is a favorite of New Yorkers hungry for upscale guacamole and well-mixed margaritas, but the restaurant has not been sitting well with the U.S. Attorney’s office, which has filed suit against the popular eatery for non-compliance with the Americans with Disabilities Act. 

The restaurant is the first “most popular” Zagat pick to be sued for ADA non-compliance after the U.S. Attorney’s office launched an initiative targeting the guide’s 50 most beloved eateries last year. In its 2012 guide, Zagat called the restaurant, which has three Manhattan locations, a “jumping” joint that “gets it right” with “flavorful” food and “personable service.” But the feds claim that the restaurants’ entrances, waiting areas, dining rooms, bars and bathrooms get it wrong, blocking disabled diners from enjoying the hot spot’s South of the Border cuisine. 

“When it comes to restaurants, New York City is arguably the world’s crown jewel, and the purpose of this initiative is to ensure that individuals with disabilities have equal access to its offerings. With today’s lawsuit alleging multiple violations of the ADA at three Rosa Mexicano locations in the City, that is exactly what we are doing,” said Manhattan U.S. Attorney Preet Bharara in a release about the lawsuit. “As alleged, neither the ADA, nor the warnings from this Office were enough to convince these restaurants to comply with the law, and the goal of this lawsuit is to see that they finally do.”

WSJ: More HIV-Positive People Receive Organ Transplants

See this article from the Wall Street Journal, which begins:

Hospitals are increasingly willing to transplant vital and scarce organs into people who have HIV, a once-unthinkable step now made possible with drug regimens that are helping such patients live longer. 

Most procedures have involved kidneys and livers, but a small number of centers are transplanting hearts. 

The number of centers that reported doing a transplant on an HIV-positive patient rose in 2011 to at least 48 centers out of the 242 that perform transplants, up from 25 centers in 2005, according to the United Network for Organ Sharing, the nonprofit that manages the U.S. transplant system. The number may be higher because not all states permit hospitals to report information regarding HIV status.

CNN Reports on Inaccessible Polling Places

See this story, which begins:

On Nov. 6, there's a very real possibility that many Americans with disabilities will not be able to vote because their local polling places will be inaccessible. 

Advocates for the disabled are worried that local governments aren't doing enough to prepare -- as are some of the small businesses that outfit polling sites with ramps.

EEOC Obtains $41.5K Settlement With Wendy's Franchise

See this story, which begins:

A franchisee of The Wendy's Co. fast-food restaurant chain has agreed to settle a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission, paying $41,500 to resolve the case and implement employee training. 

In the suit filed in April against Waco, Texas-based CTW L.L.C., which does business as Wendy's, the EEOC alleged that the company violated the Americans with Disabilities Act of 1990 by denying job applicant Michael Harrison employment at its Wendy's franchise in Killeen, Texas, after learning of his hearing impairment, the EEOC said Wednesday in a statement. 

After successfully interviewing with the Wendy's shift manager for a cooker position, Mr. Harrison was interviewed by the general manager through a telephonic system for the hearing-impaired. During the course of the interview, the EEOC alleged that the general manager told Mr. Harrison that “there is really no place for someone we cannot communicate with,” the EEOC said in the statement.

National Federation of the Blind, Various Universities, Win Big Victory in Digitization Case

Read this post from Rebecca Rosen at the Atlantic.  It begins:

One of the biggest questions in copyright law today is what kinds of repurposing fall under the "fair use" exception. If a university scans a book and allows students to download it, is that a violation of copyright law? What if students can't download it, but can search through it? What if only certain students can download it? 

These questions are at the center of a lawsuit brought by a group of authors, The Authors Guild, and several other associations against HathiTrust, a massive repository of digital books, founded and supported by many of the country's leading universities. For a few years, Google has been scanning the books held in these universities' libraries, retaining a digital copy for itself (the contents of which fuel Google Books' "snippet view" we all know and love/hate), and providing another for the universities, which all students can search but whose entire texts are only available to students with visual disabilities who do not have access to printed works. If you're a student who can see just fine, a search of copyrighted works (which make up about three-quarters of the 10 million scanned books) will only provide you with a page number, and from there it's off to the hard copy for you. The universities, Google, and HathiTrust all keep full, digitized copies. 

Is this fair use? Yesterday, in a decisive, make-no-bones-about-it opinion, a federal court in New York said yes, this was quite fair indeed. Two lines of argument run through the court's reasoning: 1.) remaking a text for search constitutes a "transformative use" and therefore falls under fair use, and 2.) the Americans With Disabilities Act does not merely make this activity legal, it may even require it. (The full text of the opinion is available here.)

(I should note that one of the universities sued was the University of Michigan, my employer.)

For additional coverage, see this press release from NFB and this post from Wired.

Consent Decree Filed in Netflix Captioning Case

Wow.  This is a big deal.  My friends at DREDF just announced a consent decree in their case against Netflix.  The decree will provide for closed captioning in 100% of Netflix's streaming content within two years.  This is a major step toward fully opening up the internet's incredibly important space of entertainment and commerce to people with hearing impairments.  The press release:

Netflix Inc. and the National Association of the Deaf (NAD), a non- profit organization, have submitted a joint Consent Decree to a federal court in Springfield, Mass., ensuring closed captions in 100% of Netflix streaming content within two years.

NAD, along with the Western Massachusetts Association of the Deaf and Hearing- Impaired (WMAD/HI) and Lee Nettles, a deaf Massachusetts resident, brought suit against Netflix seeking that commitment in 2010.

The agreement indicates the parties’ mutual intent to increase access for people who are deaf and hard of hearing to movies and television streamed on the Internet. Netflix began its closed-captioning program in 2010. Netflix has increased captioning for 90% of the hours viewed but is now committed to focusing on covering all titles by captioning 100% of all content by 2014. Captions can be displayed on a majority of the more than 1,000 devices on which the service is available.

Howard A. Rosenblum, CEO of NAD, the lead plaintiff in this case, said, “The National Association of the Deaf congratulates Netflix for committing to 100% captioning, and is thrilled to announce that 48 million deaf and hard of hearing people will be able to fully access Netflix’s Watch Instantly services.”

“We have worked consistently to make the broadest possible selection of titles available to Netflix members who are deaf or hard of hearing and are far and away the industry leader in doing so,” said Neil Hunt, Netflix Chief Product Officer. “We are pleased to


have reached this agreement and hope it serves as a benchmark for other providers of streaming video entertainment.”

Netflix will also improve its interface so that subscribers will be better able to identify content that has been captioned in the period until 100% captioning is achieved. The parties have asked the court to maintain jurisdiction of the case for four years to assure compliance with the terms of the Decree, and plaintiffs will monitor Netflix’s progress.

“We’re so pleased that Netflix worked jointly with plaintiffs to devise a reasonable and workable way to achieve 100% captioning. The Decree is a model for the streaming entertainment industry,” said Arlene Mayerson, Disability Rights Education & Defense Fund's Directing Attorney. “DREDF hopes that this is the beginning of opening the Internet for deaf and hard of hearing individuals in streamed entertainment, education, government benefits, and more.”

Campins on the New California Anti-Serial-Litigation Law

Ace disability rights and employment lawyer Julia Campins has this post on her law firm's blog about SB1186, the new California law that is supposed to respond to serial litigation.  A taste:

Others have commented on the First Amendment concerns in the new demand letter requirements, and I will not address those. What I am concerned with here is how this legislation will work to the detriment of those who need to use courts to protect their civil rights, and will barely cause a ripple in the practices of the targets of this legislation.

Let’s return to the story of the problem litigants. How hard of a requirement is it for them to list the date or dates of their visits? Indeed, they planned the visit for the purpose of the litigation. How hard of a requirement is it for them to list the specific barriers? They went with an eye toward barriers and, like a paid expert, were looking for specific violations. 

Now, compare this problem litigant to a real person visiting a public accommodation because she likes the food or he needs to purchase some clothing. She may not make a calendar entry every time she goes to Burger King. Do you? He may not go clothing shopping on a regular basis. Both may use cash and not get receipts. She may remember that there was a problem getting into the restaurant, but not remember until she returns or is reminded that not only was the door impossible for her to open, but there wasn’t enough room for her to open it. Or, more importantly, if she was unable to get into the restaurant at all, how is she to know that there was no seating for people who use wheelchairs? The legislation makes her lawsuit difficult or impossible (assuming that it is interpreted to require specific dates of visits), but has done nothing to stop the intended targets.

S.D. Miss. Fails to Give Effect to ADAAA

Just over a week ago, Judge Henry T. Wingate of the United States District Court for the Southern District of Mississippi issued an opinion and order granting the defendants' motion for summary judgment in Flynt v. Biogen Idec, Inc., 2012 WL 4588570 (S.D. Miss., Sept. 30, 2012).  Flynt is an employment case.  Flynt (essentially a pharmaceutical sales representative) was diagnosed with depression and anxiety, allegedly as a result of his supervisor's abusive and hostile conduct; his symptoms included projectile vomiting, diarrhea, and panic attacks (which continued for years).  After his diagnosis, Flynt took a six-month disability leave, and the employer held his job for him.  At the end of the leave, Flynt offered to return if he could be assigned to a different supervisor.  But the employer said that was impossible because only one supervisor was assigned to the region.  When Flynt didn't return to work, the employer fired him.  All of this conduct took place after the effective date of the ADA Amendments Act.

Flynt sued under the ADA, and the employer moved for summary judgment.  The district court granted the motion on the ground that Flynt did not have a disability.  The court relied exclusively on pre-ADAAA regulations and cases -- including the Supreme Court's Sutton and Toyota cases, which the ADAAA's statutory findings expressed Congress's intent to overturn:

An individual is “substantially limited” in working when he is

significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities. The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working.
Id., § 1630.2(j)(3)(I).

In this case, plaintiff has not shown that his impairment prevented him from doing a broad class of jobs; he has only alleged that he could not work with Richards. Yet, even his own physician did not restrict him from working with Richards. Plaintiff does not contend that he could not work at his same job if he were assigned another supervisor.
The court agrees that its prior decision in Ghoston v. Nissan North America, Inc., No. 3:05cv766–HTW, 2008 WL 879737 (S.D. Miss. Mar 30, 2008), cited by defendant, is controlling in the instant case. In Ghoston, a Nissan employee was diagnosed with depression and anxiety and placed on a temporary medical leave. After a period of leave, his psychiatrist recommended that he could return to work if he were placed with a different supervisor. As did Biogen, Nissan rejected this “accommodation,” and the employee did not return to work. The employee then sued under the ADA.
This court granted summary judgment in favor of Nissan, stating the following:
This residual restriction, however, establishes no ADA “disability” because even permanent inability to work under a specific supervisor does not imply any substantial limitation on major life activities. It is well-settled that the inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working and therefore does not constitute a “disability” under the ADA.
Id. at *4.FN5

FN5. In support, this court cited Bridges v. City of Bossier, 92 F.3d 329, 332 (5th Cir.1996), cert. denied, 519 U.S. 1093 (1997); Toyota Mfg., Kentucky, Inc. v. Williams, 532 U.S. 184 (2002) (employee must have impairment that prevents or severely restricts activities of central importance to most people's daily lives; inability to do repetitive work with hands or arms at or above shoulder level provides insufficient evidence or substantial limitation in major life activity); Moreno v. Brownlee, 2004 WL 34860, *4 (5th Cir.2004); Price v. Marathon Cheese Corp., 119 F .3d 330, 336 (5th Cir.1997).

As the defendant notes in its memoranda, this court cited numerous cases that support the proposition that inability to work with a specific person does not establish disability, nor does an employer have a duty under the ADA to accommodate such a restriction. The court finds very little distinction in the case now before it, and these legal precedents are controlling herein.

The court acknowledged Flynt's argument that the ADAAA had overturned those prior precedents, but it rejected the argument:

The court finds that the amended Act does not change the definition of disability or make all physical or mental impairments disabilities. Even under the amendments, a disability is defined as “a physical or mental impairment that substantially limits one or more major life activities.” 29 U.S.C. § 12102(1). The plaintiff has not presented any evidence which would confirm that his depression and anxiety limits him in any major life activity. Not being able to work with Richards, as a matter of law, does not substantially limit any major life activity of working. See Hatfield v. Quantum Chemical Corp., 920 F.Supp. 108, 110 (S.D.Tex.1996) (not being able to work with supervisor did not substantially limit major life activity); Schneiker v. Fortis Ins. Co., 200 F.3d 1055, 1062 (7th Cir.2000) (personality conflict with supervisor does not establish disability). The conflicts plaintiff had with Richards, even if they caused depression and stress, simply cannot establish disability under the law. 

As regards the major life activity of working, the Fifth Circuit has held: “When the major life activity under consideration is that of working, the statutory phrase ‘substantially limits' requires, at a minimum, that plaintiffs allege they are unable to work in a broad class of jobs.” Sutton v. United Air Lines, 527 U.S. 471, 483 (1999). See also Bridges v. City of Bossier, 92 F.3d at 334 (holding that a broad class or range “implies more than two job types.”). In this case, plaintiff only contends that he cannot work with his supervisor—certainly not a “broad class of jobs” as he is required to show.

Now I don't know how the plaintiff's lawyer presented his case, and the defendant had a decent (though hardly airtight) argument that it provided a sufficient reasonable accommodation here, but that analysis of the definition-of-disability issue is just wrong.  Based on the evidence Judge Wingate recounts, the court shouldn't have even gotten to the question of substantial limitation in the major life activity of working.  Flynt's impairment seems clearly to have caused a substantial limitation in the digestive and bowel functions (which the ADAAA expressly defines as major life activities).  One of the key purposes of the ADAAA was to expand the other aspects of the disability definition so that courts would not have to reach the substantial-limitation-in-working question.

Good Piece on Workplace Obesity Discrimination

In the Huffington Post, here.

Seven Credit Unions Sued for Inaccessible ATMs

See this article, which begins:

A Pittsburgh attorney, on behalf of three blind clients, has sued seven credit unions and several more banks, claiming their ATMs don’t comply with the Americans with Disabilities Act’s standards for accessible design. 

And, according to court documents filed by attorney R. Bruce Carlson, the lack of compliance is widespread despite a March 15 deadline to comply with the 2010 rules. Carlson cited in court documents a March 7 Wall Street Journal article that said at least 50% of all ATMs in the U.S. are inaccessible to blind individuals. 

Credit unions sued by Carlson are the $131 million Century Heritage FCU of Pittsburgh, the $203 million USX FCU of Cranberry Township, Pa.; the $1.2 billion American Heritage FCU of Philadelphia; the $415 million Primeway FCU of Houston, the $1.6 billion JSC Federal Credit Union of Houston; the $412 million Members Choice CU of Houston; and the $1.5 billion Premier America CU of Chatsworth, Calif. All suits were filed after March 15.

Department of Education Receives Record Number of Disability Discrimination Complaints

See this post from EdWeek's invaluable On Special Education blog.  An excerpt:

A new report from the U.S. Department of Education's office for civil rights says that, from 2009 to 2011, the agency received more complaints about disability issues than ever before in a three-year period. 

* * * 

The report out this month also drills down to what specific areas within disability rights were inquired about most often. 

Topping the list was the issue of a free, appropriate public education, or FAPE as those with some special education knowledge will know. Nearly 4,700 complaints of the 11,700 received regarding disabilities had something to do with FAPE. The office for civil rights also launched 15 investigations around the country related to FAPE.

Cinemark Agrees to Provide Audio Description at All First-Run Theaters

Linda Dardarian passes along this press release, announcing a very big deal.  It begins:

Cinemark Holdings, Inc. (NYSE: CNK), one of the world’s largest motion picture exhibitors, today announced that it is providing an audio description option for people who are blind or have visual impairments in all of its first-run theatres. Cinemark is installing audio description systems on a rolling basis across its circuit in conjunction with the chain’s conversion to an all-digital format. Installation is already well under way, and all of Cinemark’s theaters in California already have audio description capability. Cinemark will be able to offer audio description at all of its first-run theaters by mid 2013. 

In audio description (also known as descriptive narration) a narrator provides vocal description of key visual aspects of a movie, such as descriptions of scenery, facial expressions, costumes, action settings, and scene changes, described audibly during natural pauses in dialogue or critical sound elements. Narration of these elements is then woven into the soundtrack of the program or film, so that the finished version is a mix of program audio and descriptive narration. The description, which is provided by movie studios, is available only to members of the audience who choose to receive it via personal headsets and a receiver provided at the theater. 

The California Council of the Blind (CCB), a consumer advocacy organization of people who are blind and visually impaired, and individual blind Cinemark movie patrons applauded Cinemark’s commitment. Cinemark has worked closely with CCB and individual patrons with visual impairments on its audio description initiative.

The full settlement agreement is here.

EEOC Sues Chicago Bank for Inflexible Medical Leave Policy

See this article from Crain's Chicago Business.  It begins:

The U.S. Equal Employment Opportunity Commission has filed a class-action lawsuit against BMO Harris Bank, alleging it violated the Americans with Disabilities Act when it fired four employees who'd exhausted their medical leave but could have returned to work weeks later with a little more flexibility.

In its complaint, the EEOC said it filed suit against BMO Harris after concluding a one-year negotiating period that began in August 2011 and ended without resolution. The lawsuit was filed Sept. 28 in U.S. District Court in Chicago.

The complaint alleges that BMO Harris “has maintained an inflexible medical leave policy which does not provide for reasonable accommodation of qualified individuals with disabilities and which instead provides for termination of their employment.”

Nice Deep-Dive Piece on Segregated Employment and People with Developmental Disabilities

From the Cap Times, which seems to be a paper that covers Wisconsin politics from the progressive side of the political spectrum.  The article is here, and it's a commendable piece of journalism with grist for both sides of the debate (without the ridiculous on-the-one-handism one often sees).

Disturbing Story of Potentially False and Coerced Murder Confession by Man With Developmental Disabilities May Have a Happier Ending

Alice Wong passes along this NPR story, which begins:

Richard Lapointe confessed in 1989 that he stabbed, raped and killed his wife's 88-year-old grandmother two years earlier. But in the 23 years since, experts in criminal justice have come to better understand how sometimes people make false confessions — especially someone with brain damage, like Lapointe. On Monday, Connecticut's state Appellate Court ordered a new trial, saying prosecutors wrongly withheld potentially important evidence. 

"It's one of the iconic cases in the annals of false confessions," said Steve Drizin, legal director of the Center on Wrongful Convictions and a law professor at Northwestern University Law School.

Kirkland on Credibility Battles in Autism Litigation

New on SSRN: Anna Kirkland, Credibility Battles in the Autism Litigation, 42 Soc. Studs. of Science 237 (2012).  The abstract:

That vaccines do not cause autism is now a widely accepted proposition, though a few dissenters remain. An eight-year court process in the U.S. federal vaccine injury compensation court just ended in 2010 with rulings that autism was not an adverse reaction to vaccination. There were two sets of trials, one against the measles-mumps-rubella (MMR) vaccine and one against the mercury-based preservative thimerosal. The MMR story is more widely known because of publicity surrounding the main proponent of an MMR-autism link, British doctor Andrew Wakefield, but the story of thimerosal in court is largely untold. This study examines the credibility battles and boundary work in the two cases, illuminating the sustaining world of alternative science that supported the parents, lawyers, researchers, and expert witnesses against vaccines. After the loss in court, the families and their advocates transformed their scientific arguments into an indictment of procedural injustice in the vaccine court. I argue that the very efforts designed to produce legitimacy in this type of lopsided dispute will be counter-mobilized as evidence of injustice, helping us understand why settling a scientific controversy in court does not necessarily mean changing anyone’s mind.

Ryan on Poverty and the IDEA

New on SSRN: James E. Ryan, Poverty as Disability and the Future of Special Education Law, 101 Geo. L.J. ___ (forthcoming 2013).  The abstract:

Special education law relies on certain assumptions regarding brain development, function, and dysfunction. Recent neuroscience research suggests that some of those assumptions are open to serious question. This Article, which is part of a broader project that uses neuroscience research to critique special education law, focuses on one of those assumptions: that learning disabilities are innate. The definition of learning disabilities in special education law thus excludes from eligibility students whose learning problems are due to “economic disadvantage,” reflecting the belief that poverty is purely an external factor that diminishes the motivation or opportunity of poor students to learn. 

Neuroscience research, however, suggests that the conditions associated with poverty can have internal, physical effects on the brain. Growing up in poverty, in short, can alter how a child’s brain develops and functions. The sharp distinction in the law between internal disorders and external circumstances thus appears increasingly untenable. The Article goes on to explore the implications of this and other findings from neuroscience for the future of special education law.

Interesting paper and thesis.  My initial take (consistent with my general views on such questions) is that the neuroscience isn't really doing the work here.  What the neuroscience is doing is highlighting a fundamental normative question that has existed for the learning disability category from the beginning.  As Jim's paper notes, the IDEA, though an incredibly important disability rights statute, has always raised concerns by applying a much more medical approach to disability than do the ADA and the Rehabilitation Act.  Jim's focus on neuroscience might, alas, continue to trap us in a medicalized discourse here, when (as he recognizes) the real questions here are normative: What resources should we devote to education?  By what criteria should we distribute those resources among children and groups of children?  And why?  Anyway, this is likely to be an important paper (and project) for people thinking about the IDEA.