NOVEMBER 2009
Volume 6 Issue 3
Trainings & Events
ADA Audio Conference Series
Legal Update: Review and Analysis of Key Concepts under the ADA
November 17th, 2009 1-2:30 CST.
The courts and federal agencies are shaping the ADA through their decisions and settlements. This session will review key issues that are currently before the courts and analyze the trends. Discussion will include some of the trends in case law at the lower courts which may have an impact on decisions at all levels, including issues that may find their way to the Supreme Court. In addition, presenter will review how the courts are interpreting the ADA Amendments Act of 2008.
For more information visit ADA Audio Conference site at http://ada-audio.org/Schedule/ or call (877) 232-1990.
Accessible IT Webinar Series
Tips and Tricks for Efficient, Accessible Web Design
November 18th, 2009 1-2:00 CST.
This webinar is an in-depth look at some little-known tricks to include in your website to enhance both usability and accessibility. These tips include, making dynamic menus more accessible, best practices for displaying and printing hypertext links, printing using footnotes, visual cues on links. The session will show case AccessibleTech.org, a website geared specifically for businesses to improve their accessible technology.
For more information visit Accessible IT Webinar Series site at http://ada-audio.org/Webinar/AccessibleTechnology/Schedule/ or call (877) 232-1990.
ADA Legal Webinar Series
Employer Defenses Under the ADA
December 2, 2009 1-2:30 CST.
The ADA provides employers with a number of defenses when an employee files suit, including undue hardship, direct threat and that the employee is unable to meet the essential functions of the job. This session will review the various defenses employers can raise and analyze recent case decisions interpreting these defenses, along with relevant EEOC guidance and regulations.
For more information visit ADA Legal Webinar Series site at http://ada-audio.org/Webinar/ADALegal/Schedule/ or call (877) 232-1990.
Tenth Annual Multiple Perspectives on Access, Inclusion & Disability: Future History
CALL FOR PRESENTATIONS
April 27 and 28, 2010
The Tenth Annual Multiple Perspectives conference continues a decade of community exploration of disability as an individual experience and social reality that cuts across typical divisions of education & employment; scholarship & service; business & government; race, gender & ethnicity. Proposals are due November 7, 2009. For information on proposal submission visit the conference web site.
Ohio State University
Columbus, OH
http://ada.osu.edu/conferences.htm
2010 National ADA Symposium
Save the Date!
June 20-23
The Network of DBTAC-ADA Centers will host the 2010 National ADA Symposium, A 20th Anniversary Celebration, in Denver, CO. As session details, activities and registration options develop, they will be posted on the National ADA Symposium website.
Hyatt Regency - Denver, CO
http://www.adasymposium.org
News from the Federal Agencies
U.S. Access Board
Board releases for public comment draft final guidelines for outdoor developed areas
The U.S. Access Board has released for public review a draft of final guidelines covering access to outdoor sites managed by the Federal government, including national parks and recreation areas. These guidelines address how to achieve accessibility in outdoor developed areas and take into account challenges and constraints posed by terrain, the degree of development, and other factors. They specify where compliance is required and provide detailed technical criteria for new or altered trails, beach routes, and picnic and camping facilities. The guidelines will apply to sites developed or altered by Federal land management agencies, including the U.S. Forest Service, the National Park Service, the Fish and Wildlife Service, the Bureau of Land Management, and the Army Corps of Engineers. The draft final guidelines, which include instructions for submitting comments, are available for review and comment until December 18, 2009.
Read more about the Draft Guidelines at http://www.access-board.gov/outdoor/draft-final.htm.
U.S. Equal Employment Opportunity Commission
EEOC Sues Oracle Transcription for Disability Discrimination
The Equal Employment Opportunity Commission has filed a lawsuit against a Rockville Md., medical transcription company alleging it refused to hire a medical transcriptionist to a full-time job because of stereotypes about people with multiple sclerosis. In the EEOC suit it charged that since at least May 2006 and continuing to the present, Oracle Transcription, Inc. denied Mary Bobik a position as a full-time medical transcription editor.
Read more about EEOC sues Oracle Transcription at http://www.eeoc.gov/press/10-9-09e.html.
Hollywood Casino Tunica Settles EEOC Disability Discrimination Lawsuit
Hollywood Casino Tunica will pay $75,000 and provide other relief to settle a disability discrimination lawsuit the Equal Employment Opportunity Commission had filed. The lawsuit had charged that Hollywood Casino Tunica denied one of its dealer's reasonable accommodations for her physical limitations.
Read more about the Settlement at http://www.eeoc.gov/press/10-9-09b.html.
EEOC SUES DATA TRANSFORMATION CORP. FOR DISABILITY DISCRIMINATION
The lawsuit alleges that in 2008 Data Transformation Corporation discriminated against Duane Wesley while he was on medical leave for cancer and AIDS. According to the lawsuit after Wesley informed the company that he had a life-threatening illness, the company demanded that he call in sick every morning of every work day that he was on medical leave. One week before Wesley was scheduled to return to work he was fired.
Read more about EEOC sues Data Transformation corp. at http://www.eeoc.gov/press/10-9-09a.html.
TriCore Reference Laboratories Sued for Disability Discrimination
The EEOC lawsuit charges that TriCore Reference Laboratories failed to accommodate Rhonda Wagoner-Alison because of her disability. She has osteoarthritis (degenerative joint disease), which is caused by her diabetes. After failing to accommodate her the suit charges she was then discharged because of her disability.
Read more about TriCore Reference Laboratories Sued at http://www.eeoc.gov/press/10-6-09c.html.
Disability Lawsuit filed against Riverstone Residential / Realty Management
According to the lawsuit Realty Management / Riverstone Residential hired Shaun Oldridge, and in March 2008 Oldridge informed Realty Management that he had been involuntarily hospitalized. The suit charges that the company discharged him.
Read more about the Lawsuit filed against Riverstone Residential / Realty Management at http://www.eeoc.gov/press/10-5-09c.html.
D.R. Horton Sued By EEOC for Disability Discrimination
The lawsuit charges that D.R. Horton refused to accommodate a female project manager when it denied her additional unpaid leave time. The employee's doctor placed her on bed rest for over seven months as a result of pregnancy-related complications. The company initially provided some leave time the company stated it was against company policy to provide the employee any more leave time and then fired her.
Read more about D.R. Horton sued by EEOC at http://www.eeoc.gov/press/10-1-09a.html.
Disability Services Company Sued for Discriminating against Disabled Applicants
The lawsuit against Creative Networks charges that the company discriminated against a hearing-impaired applicant, Rochelle Duran, and a class of hearing-impaired applicants. The suit alleged the company had failed to reasonably accommodate their disabilities during pre-employment training and orientation. The lawsuit also alleges that the company forced hearing-impaired applicants to pay any costs for interpreting services that exceeded $200 or provide their own interpreter during an extensive training required for employment.
Read more about Disability Services Company Sued at http://www.eeoc.gov/press/10-1-09k.html.
U.S. Department of Justice
Department Posts New Project Civic Access Agreement to Web Site
The U.S. Department of Justice has posted a new Project Civic Access settlement agreement with LaPort County, IN to its web site. The DOJ Project Civic Access Initiative strives to ensure that counties, cities, towns, and villages comply with the requirements of Title II of the ADA. By eliminating physical and communication barriers Project Civic Access strives to insure that persons with disabilities are able to fully participate in the activities and services offered by their communities.
Read more about Civic Access Agreement to Web Site at http://www.ada.gov/laporte_pca/laportesa.htm.
DOJ Announces Settlement Agreement with Pine Hills Kiddie Garden
The Department of Justice announced the resolution of a complaint that had been filed under Title III of the Americans with Disabilities Act (ADA). The complaint had alleged that Pine Hills Kiddie Garden required the parents of child with diabetes to accompany the child on field trips. In the settlement Pine Hills agrees not to discriminate against any child on the basis of diabetes. Staff will also under go training as a result of the agreement.
Read more about DOJ Settlement at http://www.ada.gov/pinehillsccare.htm.
Settlement Agreement with Beth Israel Deaconess Medical Center under Title III
The U.S. Department of Justice announced it had reached a settlement agreement with Beth Israel Deaconess Medical Center that resulted from a compliance review. The focus of the compliance review was on requirements under Title III of the Americans with Disabilities Act to remove architectural and communication barriers in existing facilities. The agreement requires that the medical center Modify policies, practices, and procedures when necessary in order to afford access to services and facilities to individuals with disabilities, remove architectural barriers in existing facilities where such removal is readily achievable, and ensure that all new construction is in compliance with the ADA standards for accessible design.
Read more about the Settle Agreement at http://www.ada.gov/bidmsa.htm.
Justice Department Announces Settlement Agreement with St. Mary's Duluth Clinic
The U.S. Department announced it had reached a settlement agreement with the State of Minnesota and St. Mary's Duluth Clinic. The agreement resolves a complaint that had been filed under Title III of the Americans with Disabilities Act (ADA) and a separate complaint filed with the Minnesota Department of Human Rights. The complaint had alleged that the clinic failed to provide effective communication with a patient and his wife, who were both deaf. The clinic will adopt policies in order to insure that it does not discriminate against individuals that are deaf or hard of hearing in the provision of the clinic's services and will adopt policies to insure that appropriate auxiliary aids and services are provided to insure effective communication with patients, family members and visitors.
Read more about the Settlement at http://www.ada.gov/duluth.htm.
U.S. Department of Labor
Department of Labor steps up efforts to serve workers with disabilities
The U.S. Department of Labor, Office of Disability Employment Policy (ODEP) announced that in early 2010, ODEP will collaborate with other agencies to sponsor and organize a day-long federal government-wide job fair for people with disabilities. At this event, ODEP, the Office of Personnel Management, the Equal Employment Opportunity Commission and the Department of Defense's Computer and Electronic Accommodations Program will provide workshops on the Schedule A hiring authority, the right to the provision of reasonable accommodations, and information on assistive and communications technology.
Read more about the efforts at http://www.dol.gov/opa/media/press/odep/ODEP20091228.htm.
Great Lakes In Focus
ADA Amendments Act of 2008 - Town Hall Meetings
The U.S. Equal Employment Opportunity Commission (EEOC) and the U.S. Department of Justice (DOJ) Civil Rights Division are holding four full-day Town Hall Listening Sessions in October and November to obtain direct input from the business/employer community and the disability and disability advocacy community on EEOC's proposed regulations under the ADA Amendments Act of 2008 (ADAAA).
The Listening Sessions will be held:
October 26th Oakland, CA.
October 30th Philadelphia, PA.
November 17th Chicago, IL
November 20th New Orleans, LA.
The meetings will be presided over by EEOC's Acting Chair, Stuart J. Ishimaru, Acting Vice Chair, Christine Griffin, and Commissioner Constance S. Barker, as well as DOJ's Deputy Assistant Attorney General for Civil Rights, Samuel Bagenstos, Counsel to the Assistant Attorney General for Civil Rights, Mazen Baswari, and Chief of the Disability Rights Section of the Civil Rights Division, John Wodatch. The Town Hall Listening Session is an opportunity for these officials to hear directly from stakeholders of all perspectives on the proposed regulations.
Five-minute time slots to address the panel will be available from 9:00 a.m. to 4:00 p.m. Some of the slots will be available on an advance registration basis and some on first-come, first-served sign up basis at the event. Members of the public are also invited to attend and view the proceedings, with space available on a first-come, first-served basis.
As a reasonable accommodation, there will be limited availability to provide public input by telephone. To request this accommodation individuals must register in advance.
The EEOC on September 23 published a Notice of Proposed Rule Making (NPRM)>in the Federal Register. This rule is the result of the ADA Amendments Act of 2008 in which congress directed the EEOC to draft regulations changing the definition of disability under the Americans with Disabilities Act (ADA).
Suggested Resources:
- ADA Amendements Act of 2008 Town Hall Meetings at http://www.eeoc.gov/ada/adaaa-registration.html.
- Notice of Proposed Rule Making at http://edocket.access.gpo.gov/2009/E9-22840.htm.
- Questions and Answers on the Notice of Proposed Rulemaking for the ADA Amendments Act of 2008 at http://www.eeoc.gov/policy/docs/qanda_adaaa_nprm.html.
The Docket
BRUNKER, FRANK v. SCHWAN'S HOME Service
at http://www.ca7.uscourts.gov/fdocs/docs.fwx?submit=rss_sho&shofile=07-3183_029.pdf
A former food service manager diagnosed with multiple sclerosis (MS) may proceed with his Americans with Disabilities Act (ADA) claim following a ruling by the 7th Circuit Court. The lawsuit alleged that he was fired by his employer because the employer regarded him as being disabled. This ruling partially reversed a district court's granting of summary judgment in favor of the employer.
After experiencing symptoms of slurred speech, dizziness, lightheadedness and headaches that made it difficult for him to write, walk, speak and drive, Frank Brunker's doctor requested that he avoid driving until the cause of dizziness was diagnosed. After he was placed on disability leave he was diagnosed with MS, but was given only minor restrictions when he returned to work.
During his subsequent trip to the Mayo Clinic for tests, a supervisor drove Brunker's route and claimed that he had not been servicing hundreds of his customers. The supervisor further stated that Brunker had falsified his daily records. When Brunker returned to work two weeks later he was terminated for "unsatisfactory performance and for being "unable to perform essential job functions."
The Circuit Court stated that while the company regarded the manager as being disabled in the major life activities of walking, caring for him and speaking, the circuit court agreed with the district court's conclusion that the evidence showed only "intermittent" difficulties rather than a substantial limitation in a major life activity. Since there were sufficient facts presented to create a question as to whether his company regarded Brunker as disabled when it fired him. The court ordered the disability bias claim to be remanded for further proceedings.
From the ADA Expert
Question: I use a wheelchair and recently visited a restaurant located with in a large amusement park. The park and the restaurant were built prior to the passage of the ADA. When I went to the restaurant I discovered that the bathroom was not accessible. When I questioned restaurant staff on this I was told that the building was grandfathered and did have to make the bathrooms accessible. Is there such a thing as a "grandfather clause" under the ADA?
Answer:
No, there is no such thing as a "grandfather clause" under the ADA. Title III of the ADA requires that businesses make their goods and services available to individuals with disabilities in the most integrated setting possible. In addition, the ADA requires businesses to do what is readily achievable in removing existing architectural and communication barriers. The U.S. Department of Justice Title III regulation defines readily achievable as "easily accomplishable and able to be carried out without much difficulty or expense."
Examples of barrier removal include but are not limited to:- Creating designated accessible parking spaces
- Installing ramps
- Making curb cuts in sidewalks and entrances
- Widening doors
- Installing offset hinges to widen doorways
- Eliminating a turnstile or providing an alternative accessible path
- Installing accessible door hardware
- Repositioning shelves
- Rearranging tables, chairs, vending machines, display racks, and other furniture
- Installing grab bars in toilet stalls
- Rearranging toilet partitions to increase maneuvering space
- Insulating lavatory pipes under sinks to prevent burns
- Installing a raised toilet seat
- Installing a full-length bathroom mirror
- Repositioning the paper towel dispenser in a bathroom
- Installing an accessible paper cup dispenser at an existing inaccessible water fountain
- Repositioning telephones
- Adding raised markings on elevator control buttons
- Removing high pile, low density carpeting or
- Installing flashing alarm lights
- A public accommodation should take measures to provide access to a place of public accommodation from public sidewalks, parking, or public transportation. These measures include, for example, installing an entrance ramp, widening entrances, and providing accessible parking spaces.
- A public accommodation should take measures to provide access to those areas of a place of public accommodation where goods and services are made available to the public. These measures include, for example, adjusting the layout of display racks, rearranging tables, widening doors, and installing ramps.
- A public accommodation should take measures to provide access to restroom facilities. These measures include, for example, removal of obstructing furniture or vending machines, widening of doors, installation of ramps, providing accessible signage, widening of toilet stalls, and installation of grab bars.
- A public accommodation should take any other measures necessary to provide access to the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation. These measures would include: Providing Brailed and raised character signage and providing visual alarms.
The requirement to do what is readily achievable in removing existing barriers is an on-going obligation for places of public accommodation. If something is not readily achievable at the moment then the restaurant should examine how it will address removing that barrier in the future.
If barrier removal is not readily achievable because it would result in a fundamental alteration in the goods or services offered by a public accommodation or in an undue burden, the restaurant should make goods, services, facilities, privileges, advantages, or accommodations available through alternative methods, if those methods are readily achievable. When determining if something is an undue financial burden a business should consider any tax deductions that are available under IRS Tax Code 190. Businesses can take a $15,000 deduction for the removal of barriers. A tax credit is available for small businesses, less then $1,000,000 in gross revenue or 30 or fewer employees, of up to $10,000 for expenses in removing barriers.
Resources- Readily Achievable Barrier Removal and Van Accessible Parking Spaces at http://www.ada.gov/adata1.htm
- Expanding Your Market: Tax Incentives for Business at http://www.ada.gov/taxincent.htm
- Department of Justice ADA Title III Regulation 28 CFR Part 36 at http://www.ada.gov/reg3a.html
- ADA Checklist for Readily Achievable Barrier Removal at ahttp://www.ada.gov/checkweb.htm
