NLJ on ADAAA

See this good article on the ADA Amendments Act in the National Law Journal.

Human Resource Executive Online on ADAAA Hearing

See this article, with some choice (anodyne?) quotes by yours truly.

Ireland & Bales on Employment Discrimination Under Title II of the ADA

New on SSRN: Employment Discrimination Under Title II of the Americans with Disabilities Act (forthcoming in Admin. & Reg. L. News, 2008). The abstract:

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

Sorry for the light posting lately; I was getting ready for this hearing, which the Senate Health, Education, Labor, and Pensions Committee held yesterday on the ADA Amendments Act. It seems like things are really moving on this bill.

Northern District of California Decides Interesting ADA/Taxi Medallion Case

On June 30 -- though I just came across it today -- Judge Jeffrey White of the U.S. District Court for the Northern District of California granted summary judgment to the defendant in Sloane v. Taxi Commission, City and County of San Francisco. The plaintiffs, cab drivers who acquired disabilities that prevented them from working regularly as cab drivers anymore, sued under Title II of the ADA to seek modification of San Francisco's requirement that the holders of taxi medallions also be full-time cab drivers. San Francisco had adopted this requirement as part of an overhaul of its taxi medallion system in 1978. Unlike in cities like New York, where a taxi medallion is a transferrable (and very valuable) piece of property. in post-1978 San Francisco, medallion holders are forbidden to sell or transfer their medallions. Instead, taxi medallions are essentially licenses granted by the city to full-time drivers, and when a driver can no longer use the license, the city will grant it to whomever is next on the waiting list. The idea is to enrich cab drivers, not investors.

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.

California Court of Appeal Upholds Award of Attorneys' Fees Against Molski

Yesterday, in Molski v. Arciero Wine Group, the California Court of Appeal, Second District, upheld an award of attorneys' fees against Jarek Molski, the (in)famous serial litigant. The case involved claims, under the ADA and state law, of inaccessiblility in defendant's public accommodations. The court awarded the defendant attorneys' fees under Section 55 of the California Civil Code, and it specifically rejected Molski's argument that attorneys' fees should be awarded to prevailing defendants under Section 55 only in cases in which the plaintiff's claims were "frivolous, unreasonable, or groundless."

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

See this article by that title. It begins:

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
store.

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."

My New (for Now) College Paper on the ADAAA

See this article.

The Folks at the Heritage Foundation Don't Like the ADAAA

See this piece, which begins:

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.

Washington Post on ADA Amendments Act

On Sunday, the Post ran this editorial supporting the bill.

Note on the ADA and Second Injury Funds

Just out: Zachary D. Schurin, Note, Monkey-Business: Connecticut's Six Billon Dollar Gorilla and the Insufficiency of the Emergence of the ADA as Justification for the Elimination of Second Injury Funds, 7 Conn. Pub. Int. L.J. 137 (2007). From the introduction:

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.

Gov. Purdue Announces Olmstead Agreement Signed

See this article by that title. It begins:

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).

Ninth Circuit Issues Important Attorneys' Fees Decision

In an opinion filed on Friday in the case of Hubbard v. SoBreck, LLC, the Ninth Circuit resolved a very significant attorneys' fees question. The plaintiffs had filed suit under the ADA and the California Disabled Persons Act to challenge various barriers to accesibility at the defendants' restaurant. The parties settled many of the plaintiffs' claims before trial, and the plaintiffs voluntarily abandoned others, so the trial focused on only a few of plaintiffs' claims of inaccesibility. The district court, after a bench trial, ruled for the defendant on those claims. The defendants then moved for attorneys' fees under the ADA and the CDPA. The district court ruled that the defendants could not recover under the ADA -- which authorizes an award of fees to prevailing defendants only in cases where the plaintiff's claim was frivolous -- but could recover under the CDPA -- which the district court interpreted as authorizing an award of fees to any prevailing defendant.

On appeal, the Ninth Circuit did not address whether the district court's interpretation of the state-law attorneys' fees provision was correct. The court of appeals instead held that, "to the extent that Section 55 does authorize the award of fees to a prevailing defendant on nonfrivolous CDPA state claims that parallel nonfrivolous ADA claims, the ADA preempts Section 55 of the CDPA." This is likely to be a very significant ruling, because it takes away a tool that businesses can use to deter nonfrivolous ADA acessibility suits.

Gatlin Loses in 11th Circuit; Won't Run in Trials

See this story, which I picked up from Bashman. When I get a copy of the Eleventh Circuit's order, I'll post it.

House Overwhelmingly Passes ADA Amendments Act

While I was driving my kids from St. Louis to Chicago today, the House of Representatives passed the ADA Amendments Act by a vote of 402-17. From Robert Pear's typically great article in the NY Times:

The bill, approved 402 to 17, would make it easier for workers to prove discrimination. It would explicitly relax some stringent standards set by the court and says that disability is to be “construed broadly,” to cover more physical and mental impairments.

Supporters of the proposal said it would restore the broad protections that Congress meant to establish when it passed the Americans With Disabilities Act that President George Bush signed in 1990.

Lawmakers said Wednesday that people with epilepsy, diabetes, cancer, cerebral palsy, multiple sclerosis and other ailments had been improperly denied protection because their conditions could be controlled by medication or were in remission. In a Texas case, for example, a federal judge said a worker with epilepsy could not be considered disabled because he was taking medications that reduced the frequency of seizures.

In deciding whether a person is disabled, the bill says, courts should generally not consider the effects of “mitigating measures” like prescription drugs, hearing aids and artificial limbs. Moreover, it adds, “an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.”

I know there's disappoinment in some quarters about this bill. But, while this bill doesn't do everything I would want it to do, it will go at least 80% of the way toward undoing the damage caused by restrictive Supreme Court and appellate court decisions. It will make a huge difference for a lot of people.

Depressing ADA Title II Case From Ninth Circuit

Last week, though I just saw it today, the Ninth Circuit issued this unpublished memorandum opinion in a case called Suarez v. Superior Court. The case involved a deaf arrestee who did not receive an interpreter, and thus could not be arraigned, until he had spent more than a week in jail. The panel unanimously held that the bureaucratic screwups that kept the plaintiff from receiving an interpreter did not constitute the kind of "deliberate indifference" that the Ninth Circuit has held to be necessary for a damages recovery under Title II of the ADA. But, in a highly unusual step, all three judges on the panel filed this separate concurrence, which I reprint in full:

Suarez v. Superior Court of the State of California, No. 07-55234
FISHER, Circuit Judge, concurring, joined by Judges TROTT and THOMAS:

I agree that Suarez has not shown the Superior Court was deliberately indifferent in failing to inquire about the same-day availability of an American Sign Language (“ASL”) translator. I am, however, unsettled by the absence of effective communication and coordination between the Superior Court and the Los Angeles County Sheriff’s Department regarding Suarez’s disability and his obvious need for a translator at his arraignment. Had Suarez been able to communicate through a translator the first time he appeared before the Superior Court, this innocent man would not have had to spend the following seven nights in jail.

Suarez was mistakenly arrested on August 8, 2005, on a warrant that had been issued for another person. The Sheriff’s Department first brought him from the Twin Towers Correctional Facility to the Metropolitan Courthouse a little before noon on Tuesday, August 9, and placed him in a holding cell in the basement. After about an hour and a half, a police officer who works for the Sheriff’s Department apparently realized that Suarez was deaf and taped a sign reading “DEAF” to the front of his shirt. No other action was taken to alert the court to Suarez’s disability. The taped sign proved to be wholly ineffective in alerting the Superior Court staff that Suarez would need accommodation at his arraignment. The court clerk testified that when Suarez was brought from the basement cell to the holding area of the courtroom, she did not see the sign on his shirt because she does not turn to look at the criminal defendants behind her. Thus no one on the court staff realized that Suarez was in need of accommodation until it was too late in the afternoon to obtain a translator for him before it ceased business for the day. Instead, a translator was ordered for 8:30 a.m. the following day. The predictable result was that Suarez was returned to spend another night at Twin Towers.

For the remainder of the week, Suarez was for some reason put on medical holds at Twin Towers, thus negating the court’s scheduled arrangements for a translator. He was then held through the weekend while he waited for the court to reopen on Monday, August 15. Late on Monday morning, Suarez was finally brought to the Superior Court, but the Sheriff’s Department did not inform the court in advance so that it could make the necessary arrangements for a translator. Instead, he simply arrived with the “DEAF” sign taped to his shirt. Once again, the court staff did not become aware of his presence in the holding tank until it was too late in the afternoon for the clerk feasibly to procure a same-day ASL translator. (Notably, the court clerk present that day testified that she also does not turn to look at the defendants in the holding tank – evidencing a common practice.) A translator was scheduled for the next day, relegating Suarez to spending yet another night in Twin Towers – his eighth since his arrest.

Suarez’s week-long saga came to an end when he was finally arraigned with an ASL translator present on Tuesday, August 16, at which point the court discovered that the police had arrested the wrong man and ordered Suarez released forthwith. At the time of Suarez’s arrest and arraignment, the Superior Court had 19 pre-booked and unbooked ASL translators who could be summoned to court without advance notice. I appreciate the difficulties of coordinating more than 400 translators for the court’s 52 locations around the County, but I encourage the Superior Court and the Sheriff’s Department to review their channels of communication and devise more effective ways of timely alerting the Court to a defendant’s obvious need for accommodation. Throughout this litigation, the Superior Court has insisted that it could not have obtained a translator for Suarez because it did not know he was coming to court and did not know that he was deaf. Although “bureaucratic slippage that constitutes negligence rather than deliberate action” is not actionable under the Americans with Disability Act or the Rehabilitation Act, see Duvall v. County of Kitsap, 260 F.3d 1124, 1139 (9th Cir. 2001), this does not mean that a systemic problem of the kind this record reflects can be ignored. Given the interest of the Superior Court and the Sheriff’s Department in the fair administration of justice, I hope they will take the opportunity to review their procedures and take appropriate corrective action.

Gosh, seems a lot more like deliberate indifference than bureaucratic slippage to me.

Judge: Gaitlin Should be Allowed to Run at Olympic Trials

See this article by that title. An excerpt:

A Florida federal judge says barred sprinter Justin Gatlin should be allowed to compete at the U.S. Olympic track and field trials.

U.S. District Judge Lacey A. Collier's temporary restraining order is only in effect for 10 days, and the trials don't begin until June 27 in Eugene, Ore.

* * *

Gatlin's complaint alleged that penalizing him for a 2001 doping violation, which involved medication he was taking for attention deficit disorder, violates the Americans with Disabilit[ies] Act.

Two weeks ago, the Court of Arbitration for Sport upheld a four-year doping ban against the reigning Olympic 100-meter gold medalist. Gatlin asked CAS to rescind the 2001 doping violation -- his first of two -- which he had hoped would reduce his
penalty to a two-year ban, allowing him to compete at trials.

SHRM Press Release on ADA Amendments Act

A press release on Ed. & Labor's passage of the ADA Amendments Act from the Society for Human Resource Management -- one of the large management-side organizations that lobbies on employment law issues -- is here. An excerpt:

"Although we agree that the law needs revision, recent legislative proposals for that purpose actually threaten to water down and weaken a bill that has transformed our nation.

"Under those prior proposals, ADA protection would have been expanded to employees with temporary impairments. That would have simply diluted the resources available to employees with disabilities who truly need and deserve accommodations.

"In contrast, the legislation that passed the House committees today is supported by both the employer and disability communities. It focuses protection on those who need it most. It corrects the damage done by court interpretations over the past decade that have weakened ADA coverage for people with diabetes, epilepsy, serious
heart conditions, mental disabilities, and even cancer.

"Both the employer and disability communities have been able to unite behind this bill for a reason -- it is an effective remedy that is perfect for no one, but fair for everyone. It will put more Americans to work, and protect the people most deserving of that accommodation."

House Ed. & Labor Committee Passes ADA Amendments Act

At a markup today, the House Education & Labor Committee passed (by a 43-1 vote!) the ADA Amendments Act, which is a revised version of the earlier ADA Restoration Act proposal. See this press release, which contains details about the bill and a list of its very impressive array of supporters from both the disability and business communities.

Ninth Circuit: Comparative Evidence Unnecessary to Show ADA Disability

Yesterday, the Ninth Circuit issued this opinion in Gribben v. United Parcel Service. The plaintiff was a UPS driver, who sued after the company denied him accommodation for his heart condition and then terminated him. The district court granted summary judgment to the company on Gribben's ADA claim, on the ground that Gribben had failed to present evidence of how his limitations compared to the average person. The Ninth Circuit reversed, in an opinion by Judge Thompson. The Ninth Circuit held that "Gribben’s testimony alone regarding the significance of his impairment is sufficient to create a genuine issue of material fact at the summary judgment stage." Accordingly, "Gribben was not required to submit the comparative evidence the district court required."