Prepared by Barry T. Taylor, Legal Advocacy Director, Equip for Equality, and Alan Goldstein, Senior Attorney, Equip for Equality

Access to Public Accommodations

In Disabled Patriots of America v. University Hospitals Health Systems, 2008 WL 618645 (N.D. Ohio March 3, 2008), a disability rights group sued a hospital for violations of Title III. The complaint was based on accessibility barriers that a wheelchair user encountered while doing accessibility testing for the disability rights group. The hospital tried to have the case dismissed arguing that the complaint did not specify when the tester encountered the barriers, the exact locations of the barriers, or the disabilities of the tester or the disability rights group. The court denied the hospital's motion to dismiss finding that the complaint contained sufficient facts. The court did recommend that the plaintiff be prepared to provide more detailed factual information as the case proceeds into the discovery process.

Association Discrimination

In DeWitt v. Proctor Hospital, 2008 WL 509194 (7th Cir. Feb. 27, 2008), the plaintiff alleged that her employer fired her to avoid having to continue to pay for the substantial medical costs that were being incurred by her husband's cancer treatments under the employer's self-insured health insurance plan. The district court granted summary judgment in favor of the employer. However, the 7th Circuit Court of Appeals reversed finding that because the plaintiff has established that direct evidence of "association discrimination" may have motivated the employer in its decision to fire her, a jury should be allowed to consider her claim. Specifically, the court relied on the fact that the employer indicated it was reviewing the unusually high costs of her husband's medical expenses at the same time it was identifying ways to cut health care costs and also asked plaintiff if her husband had considered hospice care instead of the more expensive radiation and chemotherapy treatments her husband was receiving.

Bladder Control as Major Life Activity

In Wirtz v. Ford Motors Co., 2008 WL 565260 (E.D. Mich. Feb. 28, 2008), an assembly worker had impaired bladder control that necessitated frequent bathroom breaks. She was taken off the assembly line because the employer felt her frequent breaks disrupted the flow of the work. She then sued for disability discrimination under the ADA. The defendant contested whether she had an ADA disability and specifically challenged whether bladder control is a major life activity under the ADA. The court found that bladder control is a major life activity and analogized it to other cases finding that controlling one's bowels is a major life activity.

Fundamental Alteration

In Grooms v. Maram, 2008 WL 2271492 (N.D. Ill. May 30, 2008), the plaintiff has a rare progressive neuromuscular disease and received nursing care in his home from the State of Illinois. However, when he turned 21, he aged out of the Medicaid "waiver" program that the State had invoked to provide him with home services. A State physician had certified that all of the plaintiff's services were medically necessary and cost neutral to the State, yet, on his 21st birthday, the State reduced the plaintiff's benefits by more than half, which placed him at risk of institutionalization. He then sued under Title II of the ADA. Eventually, the court entered a permanent injunction ordering the State to restore the approved level of in-home nursing services. The court found that to provide the plaintiff with the services he had been receiving prior to turning 21 would not constitute a "fundamental alteration" under the ADA.

Pretext for Discrimination

In Johnston v. Mid-Michigan Medical Center-Midland, 2008 WL 82227 (E.D. Mich. Jan. 8, 2008), an employee with diabetes was terminated for performance issues. In denying a motion for summary judgment, the court found that there was a question of fact as to whether the employer's reasons for terminating him were a pretext for disability discrimination. Specifically, the court relied on the fact that the vice president of human resources saw fit to strike a reference to his diabetes from his termination papers after the fact. Further, his manager included plaintiff's response during a diabetic episode as one of the bases for ending his employment, so the suggestion that plaintiff's employment was terminated only for performance reasons was directly contradicted by the manager's description of his reasons.

Record of Impairment

In Doe v. The Salvation Army in the U.S., 2008 WL 2572930, (6th Cir. July 1, 2008), a case under the Rehabilitation Act, an employee was not hired by the Salvation Army due to a history of having paranoid schizophrenia and taking psychotropic medications. The court held that Doe may have a claim for discrimination based on his "record of" a disability and that the Salvation Army may have inappropriately asked Doe about the medications that he was taking. While the court admittedly did not fully understand the reasons behind the ADA's protection for people with a "record of" a disability, i.e, to protect people against employment decisions based on myths, stereotypes, and misconceptions regarding disabilities, the court nevertheless held that the Salvation Army's actions in not hiring Doe may have violated the ADA based on his "record of" a disability.

Regarded as Having an Impairment

In Johnston v. Mid-Michigan Medical Center-Midland, 2008 WL 82227 (E.D. Mich. Jan. 8, 2008), an employee with diabetes was terminated for performance issues. Plaintiff argued that his employer regarded him as having an ADA disability and the court agreed that plaintiff had provided sufficient evidence for the case to proceed. The court relied on an e-mail from the plaintiff's manager that suggested a linkage between plaintiff's diabetes and his performance problems.

In Broberg v. Illinois State Policy, 537 F.Supp.2d 960 (N.D. Ill. 2008), a police officer was removed from duty and forced to undergo psychological testing after allegations were made about her behavior. Two clinical psychologists provided contradictory evaluations and she was kept off duty. She sued under the ADA for disability discrimination. The court found that the case could proceed on a theory that she was regarded as having a disability. Specifically, the court held that because she was kept her off work, there was a question of fact whether the Illinois State Police regarded her as being substantially limited in the major life activities of perceiving reality and behaving rationally.

Title II Class Certification

In Phipps v. Sheriff of Cook County, 249 F.R.D. 298 (N.D. Ill. Mar. 26, 2008), a group of pre-trial detainees who use wheelchairs sued over accessibility problems at Cook County Jail. The court ruled that the case could proceed as a class action. Although the accessibility barriers varied at different housing units, the judge ruled that the claims arose from the same practices and gave rise to the same legal claims. The court ruled that a class action would be an efficient use of resources and would be superior to individual adjudication of the discrimination claims in the case.