POLL FINDS PEOPLE WITH DISABILITIES MORE CONCERNED ABOUT DOMESTIC ISSUES IN ELECTION YEAR
WASHINGTON, D.C., July 29-Reflecting disadvantages that impact many of their lives, people with disabilities are more likely to cite certain domestic issues as being concerns of theirs than are their non-disabled counterparts. A Harris Poll survey conducted in June, which asked respondents to identify the two most critical issues they want the government to address, found 13 percent (versus 8 percent of the non-disabled) concerned about education, 11 percent (versus 9) concerned about jobs, and 12 percent (versus 9) concerned about healthcare. (Disability News & Views Radio Show - Autism Awareness & Child Autism)
Related to healthcare, people with disabilities are more than twice as worried about Medicare, 5 vs 2 percent. They are also more focused on poverty and programs for the poor, 4 vs. 1 percent, and welfare, 5 vs. 1 percent. (Disability News & Views Radio Show - Autism Awareness & Child Autism)
“We know from our recently released 2004 N.O.D./Harris Survey of Americans with Disabilities that people with disabilities are twice as likely to live below the poverty line, twice as likely to drop out of high school, and half as likely to be employed as other Americans,” noted N.O.D. President Alan A. Reich. “Given that, it is no surprise that their concerns about these key domestic agenda items are higher. In this national election year, Presidential candidates and candidates for all offices need to be aware of this. There are 40 million Americans with disabilities who are of voting age, and no legislators can afford to overlook this fifth of the population.” (Disability News & Views Radio Show - Autism Awareness & Child Autism)
In the 2000 election, polling by Harris found that 56 percent of people with disabilities voted for Al Gore, and 38 percent for Bush. Since 41 percent of people with disabilities, or roughly 16 million people, voted, that split played a role in the closeness of the contested election, which should inspire outreach by both parties and individual candidates to the disability community in the 2004 election. (Disability News & Views Radio Show - Autism Awareness & Child Autism)
“Legislators and political candidates will never make a mistake by reaching out to voters who care about disability issues,” said Mr. Reich. “After all, most voters at least have a friend or relative who has a disability, so a commitment to progress on America’s disability agenda benefits all.” (Disability News & Views Radio Show - Autism Awareness & Child Autism)
The National Organization on Disability, which celebrated its 20th anniversary in 2002, promotes the full and equal participation and contribution of America’s 54 million men, women and children with disabilities in all aspects of life. For more information, visit http://www.nod.org/. (Disability News & Views Radio Show - Autism Awareness & Child Autism)
FOR IMMEDIATE RELEASE
THURSDAY, AUGUST 12, 2004
(202) 514-2008
TDD (202) 514-1888
JUSTICE DEPARTMENT ANNOUNCES NATIONWIDE SETTLEMENT AGREEMENT WITH MOTEL 6
WASHINGTON, D.C. - The Justice Department today announced an agreement with Motel 6 Operating L.P., settling allegations that the company violated the Americans with Disabilities Act (ADA). (Disability News & Views Radio Show - Autism Awareness & Child Autism)
"For too long Americans with disabilities have faced unreasonable challenges in enjoying many things most of us take for granted, such as traveling and staying in motels," said R. Alexander Acosta, Assistant Attorney General for the Civil Rights Division. Today's settlement is a major step in ensuring that persons with disabilities enjoy fully the freedom to travel. We commend Motel 6 for its cooperation and are confident that this agreement will serve as a model for other hotel chains. (Disability News & Views Radio Show - Autism Awareness & Child Autism)
Under the agreement, Motel 6 will bring its over 600 corporate owned or operated motels into compliance with the ADA by December 31, 2006. In addition, the company will hire a full time ADA compliance officer, provide ADA training to all motel managers, and hire an independent consultant to assess compliance with the agreement. In the event that Motel 6 fails to achieve substantial compliance with the ADA and the agreement, it will pay $110,000 in civil penalties to the United States. (Disability News & Views Radio Show - Autism Awareness & Child Autism)
The settlement is part of the Justice Department's efforts under President Bush's New Freedom Initiative. Announced in early 2001, the initiative seeks to provide Americans with disabilities the full access required by federal law. The initiative focuses primarily on securing voluntary compliance. (Disability News & Views Radio Show - Autism Awareness & Child Autism)
Information regarding compliance with federal disabilities laws and the rights of individuals with disabilities are available at http://www.ada.gov and also through the Civil Rights Division's ADA information line at (800) 514-0301 or (800) 514-0383 (TDD). (Disability News & Views Radio Show - Autism Awareness & Child Autism)
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News in brief from Northern California (Monterey County Herald, CA)August 12, 2004
REDDING, Calif. (AP) - Shasta County's top prosecutor and city police are investigating whether a rash of disability lawsuits involve fraud. District Attorney Gerald Benito said his office received complaints from business owners who feared the lawsuits seeking to enforce the Americans with Disabilities Act were extortion attempts. (Disability News & Views Radio Show - Autism Awareness & Child Autism)
"We're asking businesses to come forward if they feel they're being shaken down," Benito said. "When you have the same individuals filing case after case, it looks suspicious." (Disability News & Views Radio Show - Autism Awareness & Child Autism)
Benito cited a flurry of claims against mom and pop stores that he said have difficulty resolving the cases. (Disability News & Views Radio Show - Autism Awareness & Child Autism)
The act can be used to enforce that the handicapped have access to public buildings and businesses. (Disability News & Views Radio Show - Autism Awareness & Child Autism)
The Record Searchlight reported last month that Sherie White, a paraplegic from Corning, sued or threatened to sue scores of businesses in Northern California for alleged ADA violations. White's lawyer, Lynn Hubbard III of Chico, recently was criticized by a federal judge for filing "a staggering 291 separate ADA actions." (Disability News & Views Radio Show - Autism Awareness & Child Autism)
Capt. Dave Mundy of the Redding Police Department said investigators are only looking for criminal cases. (Disability News & Views Radio Show - Autism Awareness & Child Autism)
"Obviously, if there's a legitimate complaint, the owners should fix it," Mundy said. "After all, the law has been out for 14 years." (Disability News & Views Radio Show - Autism Awareness & Child Autism)
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Usability &Accessibility Working Group announces launch of new web site W3Reports (press release)
The Usability &Accessibility Working Group (UA-WG) today announced the launch of its new web site, http://www.ua-wg.org. The web site aims to conform to the highest accessibility standards, as set down by the Web Content Accessibility Guidelines from the W3C, the leading Internet body. (Disability News & Views Radio Show - Autism Awareness & Child Autism)
Visitors to the new web site will soon be able to access a comprehensive glossary, as well as news stories and articles covering the usability and accessibility of web sites. The web site will also contain information about the accessibility accreditation scheme that the UA-WG will be launching in the near future. (Disability News & Views Radio Show - Autism Awareness & Child Autism)
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Detroit Free Press (Detroit, MI)
August 10, 2004
Woman wins claim she needs dog to fight depression
ROYAL OAK, Mich. (AP) -- The Michigan Civil Rights Commission and a judge have blocked the eviction of a woman who says her late mother's dog helps her fight depression over the mother's death. (Disability News & Views Radio Show - Autism Awareness & Child Autism)
The commission and a judge say Christine Emmick has a disability and is entitled to keep her Shih Tzu, Max, despite Royalwood Cooperative Apartments' no-pets rule. (Disability News & Views Radio Show - Autism Awareness & Child Autism)
Such rulings generally are reserved for so-called service animals like seeing-eye dogs. (Disability News & Views Radio Show - Autism Awareness & Child Autism)
The apartment complex "refused to reasonably accommodate her mental disability by allowing her to keep a dog," the civil rights commission ruled earlier this year. (Disability News & Views Radio Show - Autism Awareness & Child Autism)
That violates the state's Persons with Disabilities Civil Rights Act, the commission said. It awarded Emmick $107,749 in emotional damages and attorney fees. (Disability News & Views Radio Show - Autism Awareness & Child Autism)
Oakland County Circuit Judge Fred Mester upheld the decision after a hearing Wednesday. (Disability News & Views Radio Show - Autism Awareness & Child Autism)
"I was skeptical of the case at first," Mester told the Detroit Free Press on Monday. "But when you look at the facts of the case, the cooperative was violating the law. (Disability News & Views Radio Show - Autism Awareness & Child Autism)
"This is not a case where somebody says, "I have a headache, and a dog would make it better.' This woman had a well-documented disability and was able to prove that the dog helps her in coping with that disability." (Disability News & Views Radio Show - Autism Awareness & Child Autism)
A lawyer for the co-op criticized the ruling. (Disability News & Views Radio Show - Autism Awareness & Child Autism)
"The Royalwood Cooperative believes the decision is wrong on the law and the facts," said Patrick Rode. "The dog, as far as the cooperative is concerned, is nothing more than a pet." (Disability News & Views Radio Show - Autism Awareness & Child Autism)
In 1998, Emmick's mother, a South Carolina resident, was diagnosed with terminal lung cancer. Emmick moved her mother to Michigan a few months later to care for her, along with Max. (Disability News & Views Radio Show - Autism Awareness & Child Autism)
The co-op board warned Emmick that the dog had to go. Emmick responded with a letter from her mother's doctors at Cancer Care Associates of Royal Oak. (Disability News & Views Radio Show - Autism Awareness & Child Autism)
"Due to the therapeutic and humanistic benefits of owning, loving and caring for a pet, it is felt to be in this patient's best interest to be able to keep her dog with her," the doctors wrote. (Disability News & Views Radio Show - Autism Awareness & Child Autism)
The cooperative told her again in October 1999 that the dog had to go. (Disability News & Views Radio Show - Autism Awareness & Child Autism)
Emmick and her mother found a senior subsidized apartment in Rochester Hills that allowed pets. Emmick's mother lived there with Max until she was hospitalized in June 2000, and she died two months later. (Disability News & Views Radio Show - Autism Awareness & Child Autism)
Following her mother's death, Emmick took Max back to her Royalwood apartment. In April 2001, the cooperative's board of directors voted to evict her. (Disability News & Views Radio Show - Autism Awareness & Child Autism)
Psychiatrist Dr. Michael Abramsky told the civil rights commission that Emmick's relationship with Max "kept her afloat and stabilized her functionally and emotionally ... without the dog, she would probably spend most of her life in bed." (Disability News & Views Radio Show - Autism Awareness & Child Autism)
"The dog seems to be an essential part of her improvement," he said. (Disability News & Views Radio Show - Autism Awareness & Child Autism)
Source: http://www.freep.com/news/statewire/sw102489_20040810.htm
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Disability Class Action Filed Against UPS, Inc.
(PRWEB) August 13, 2004 -- "Stop playing doctor!" That's the message behind a nationwide class-action lawsuit filed against United Parcel Service last Friday in a Pittsburgh federal court. The lawsuit charges UPS with systemic violations of the Americans with Disabilities Act, the federal law that protects persons with disabilities from employment discrimination. UPS is alleged to have illegally terminated hundreds of employees because it disapproved of their prescription medications. If proven, the claims could expose UPS to tens of millions of dollars in damages. (Disability News & Views Radio Show - Autism Awareness & Child Autism)
"Our first concern is that the company stop practicing medicine," said Charles Lamberton, lead attorney for the plaintiffs. "These employees are using legal prescriptions under their doctors' supervision. They still do their jobs perfectly well. UPS is telling them they either have to quit their medicine or be fired." (Disability News & Views Radio Show - Autism Awareness & Child Autism)
According to court papers, UPS singles out employees with a history of addiction to alcohol or drugs, and forces them to disclose their prescriptions. The company then prohibits these employees from using any medications it believes are "inappropriate" for someone in recovery. UPS tests the employee's urine to make sure she has stopped using her prescription. If the employee has not quit her medicine, she is fired. "It's outrageous," Lamberton said. (Disability News & Views Radio Show - Autism Awareness & Child Autism)
Andrew Imparato, President and CEO of the American Association of People with Disabilities, agrees. With more than 90,000 members, the Washington, DC based non-profit is the largest cross-disability organization in the United States. "When an employer interferes with an employee's medical care, it crosses a line," Imparato said. "Addiction is a disease. Many of these employees also suffer from psychological illnesses that are best treated with prescription medications. There's just no legitimate reason for UPS to be second-guessing licensed physicians. That's why we joined as a co-plaintiff." (Disability News & Views Radio Show - Autism Awareness & Child Autism)
What about driver safety? "A red herring," Lamberton said. "There's no public safety issue here. We're talking about the 260,000 office workers, package sorters and other employees whose jobs aren't safety sensitive. Drivers and pilots are not part of the case." (Disability News & Views Radio Show - Autism Awareness & Child Autism)
If the legal team Lamberton assembled reflects his determination to win, UPS has reason to be concerned. "Kent Spriggs of Tallahassee is probably the top employment class action lawyer in the United States. And Claudia Center of San Francisco is an expert's expert on disability discrimination law. She's argued ADA cases before the Supreme Court and knows all the nuances. It's a highly qualified team and we have a great chemistry." (Disability News & Views Radio Show - Autism Awareness & Child Autism)
Asked what lies ahead, Lamberton replied, "We're going to trial and we're going to win." The lawsuit is Darlene E. Veltri and the American Association of People with Disabilities vs. United Parcel Service, Inc., Civil Action No. 04-1177 (W.D. Pa.). (Disability News & Views Radio Show - Autism Awareness & Child Autism)
Contact Information:
Charles Lamberton
412-258-2250
cal@lambertonlaw.com
LAMBERTON LAW FIRM, LLC
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Repost from Public Education Network Weekly NewsBlast "Public Involvement. Public Education. Public Benefit."
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CHOOSING CHAMPIONS: A VOTER'S GUIDE TO PUBLIC EDUCATION CANDIDATES Public Education Network has created a voter's guide that presents a list of questions highlighting the most pressing concerns and issues in public education today. Public education is a leading issue in American politics. The information in this guide informs voters about important education issues, and helps voters determine a candidate's stance on public education. There are many possible answers to the questions raised in this guide. No single answer is "correct". The questions help identify the education decisions candidates will have to make if elected, and encourage voters to make ballot selections based on which candidates they believe have the strongest public education agenda. (Disability News & Views Radio Show - Autism Awareness & Child Autism)http://www.publiceducation.org/voter_guide/home.asp
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The Carmel Pine Cone (Carmel, CA)
August 13, 2004
Disabled decry suit against C.V. restaurant- San Fernando Valley man seeks millions in damages from local businesses
By PAUL MILLER
A GROUP of wheelchair-bound residents of the Rippling River low-income housing complex in Carmel Valley reacted with shock and bitterness to news this week that a restaurant they've comfortably used for years has been sued for alleged ADA violations by a paraplegic from Woodland Hills. (Disability News & Views Radio Show - Autism Awareness & Child Autism)
Jarek Molski, 34, who is paralyzed from the waist down because of a 1988 motorcycle accident, sued 10 Monterey County businesses in U.S. District Court in San Jose during the last two months, seeking more than $1.6 million from each. They are among 205 such suits he has filed in California claiming violations of the Americans With Disabilities Act. (Disability News & Views Radio Show - Autism Awareness & Child Autism)
His local targets include Tarpy's Roadhouse, five wineries (Georis, Bernardus, Heller, Cloninger, and Rapazzini) and White Oak Plaza shopping center on Carmel Valley Road.(Disability News & Views Radio Show - Autism Awareness & Child Autism)
One business hit with a lawsuit June 4, The Running Iron, is just down the road from Rippling River, where disabled people have organized to fight an eviction move by county officials, and who are almost as riled up about the ADA suit against their local hangout.(Disability News & Views Radio Show - Autism Awareness & Child Autism)
"I go to The Running Iron for lunch practically every Sunday after church, and I've never had any problem," said Jane Wheeler, who has been confined to a wheelchair for more than 20 years because of cerebral palsy. "I have severe food allergies, and the people at The Running Iron were so nice to me when I explained it to them."(Disability News & Views Radio Show - Autism Awareness & Child Autism)
"There are always difficulties when you're in a wheelchair," said Garie LeBow, another wheelchair user from Rippling River. "But I've been going to The Running Iron since 1990, and it has very accessible bathrooms and it's easy to get around because there are ramps and there are no stairs."(Disability News & Views Radio Show - Autism Awareness & Child Autism)
"It's absolutely not true that The Running Iron discriminates against disabled people," said Merri Bilek, president of the Rippling River residents association and an amputee who has patronized the restaurant for almost two decades. "The owner, Jenn Foreman, usually greets me with a hug” not only her, but her staff has always been very accommodating."(Disability News & Views Radio Show - Autism Awareness & Child Autism)
Another outspoken woman, Carolyn Metcalf, who's been in a wheelchair for 30 years, called the lawsuit "ridiculous" and said The Running Iron is"very accessible and very friendly."(Disability News & Views Radio Show - Autism Awareness & Child Autism)
And Chris Sauer, perhaps the most severely disabled woman interviewed for this story, issued a statement through her caregiver: "I have lived in Carmel Valley for 29 years. Since the beginning I have enjoyed going to The Running Iron restaurant. I have had no problems getting into the place and I also had no problems with the restroom."
The owner of The Running Iron for the last 19 years, Nelson Foreman, said he was very surprised to be accused of discriminating against the handicapped.
"I thought I'd be the last person in the world to be sued under the ADA," Foreman said. "Not a day goes by that we don't have one or two people in here in wheelchairs, and we always do our best to take care of them."
But that's not the way Molski sees it. In his lawsuits, Molski describes not only being "embarrassed and humiliated" by improper wheelchair access at local businesses during a visit to the Monterey Peninsula last summer. At many of those businesses, he also claims he was injured.
"On June 8, 2003, plaintiff Jarek Molski entered the parking lot of the Running Iron restaurant, only to discover that the handicapped accessible spaces were all done incorrectly," one of his suits alleges. The restaurant had three spaces marked for handicapped access, "but none had access aisles, and one had no signage."
And when Molski entered the restaurant, "he felt that the entry ramp from the bar was too steep . . . and he encountered a step from the patio entrance," according to the suit.
The story continues: After having a meal, Molski needed to use a restroom. On his way to the men's room, he encountered swinging doors. "Said doors were problematic," the suit says. Also the toilet stall was too narrow and had grab bars 40 inches above the floor, instead of the legally required 33 inches. "Plaintiff injured himself when using the existing grab bars," the suit said.
The day before, at the Heller Estates tasting room Molski suffered "trauma to his upper extremities" when he tried to use the restroom, a separate lawsuit maintains. Also on June 7, Molski claims he was injured while attempting to use the restrooms at Georis Winery and at Tarpy's Roadhouse.
These incidents amounted to violations of federal and state accessibility laws, the suit contends, entitling Molski to "at least $4,000 per day" from the date of his visit until the alleged violations are corrected, plus medical costs, attorney's fees and punitive damages, adding up to millions of dollars.
"These lawsuits are just a way to make money," said a caregiver for disabled people at Rippling River. "And they end up giving all disabled people a bad name."
Molski could not be reached for comment, but his San Francisco Attorney, Thomas Frankovich, said he would need to talk to the wheelchair users from Rippling River before assessing their statements.
"Maybe they are using the facilities differently from the way my client did," Frankovich said. And even if their assessments are based on hundreds of individual visits over 20 years, that doesn't invalidate Molski's problems at the Running Iron and his opinion after just one trip that it deserves to be sued.
And while Molski has filed about 250 ADA suits, Frankovich has handled more than 800 for various clients. None of them has gone to trial, he said, with most settling for "between $20,000 and $30,000” far more than it cost businesses in downtown Carmel to settle suits filed against them last year.
"The attitude of a lot of businesses is pretty bad toward people with disabilities," Frankovich claimed. "Most businesses couldn't care less about access and only come into compliance if they think they're going to be sued."
Residents of Rippling River are starting a petition to support him, Foreman said. Meanwhile, he has hired Dan De Vries, a local attorney who specializes in defending ADA suits.
If all else fails, Foreman is hoping for changes in the law to give small business owners notice before they can be sued for allegedly discriminating against the handicapped.
That's the same cause former Carmel Mayor Clint Eastwood took to Capitol Hill in 2000, telling a congressional committee that ADA lawsuits are a "money-making scam."
But legislation amending the ADA never made it out of committee, and is no longer under active consideration in Washington.
Source: http://www.carmelpinecone.com/040813-2.html
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7th Circuit Rejects 'Rare' ADA Association Claim
Law Bulletin
August 03, 2004 Volume: 150 Issue: 151
By Jay Judge
Fired worker failed to allege valid claim under section of Americans with Disabilities Act that bars discrimination based on plaintiff's 'relationship or association' with disabled individual.
Today's column looks at a case of first impression for the 7th U.S. Circuit Court of Appeals involving the Americans with Disabilities Act section covering individuals' personal associations. Larimer v. International Business Machines Corp., 370 F.3d 698 (7th Cir. 2004).
The ADA, 42 U.S.C. §12112(b)(4), forbids discrimination against ''a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association.''
This section covers three categories: expense, disability by association and distraction.
The 7th Circuit clarified what's needed to sustain a claim under the association section as well as the limitations on the Den Hartog test, which is equivalent to the McDonnell Douglas test. Den Hartog v. Wasatch Academy, 129 F.3d 1076 (10th Cir. 1997).
Plaintiff Thomas Larimer was hired as a salesman for defendant IBM in August 2000 and fired a year later. Larimer's suit contended that he was fired because his twin daughters, born prematurely in May 2001, suffered a variety of maladies and were disabled or might be in the future. Some $200,000 in medical bills were paid under IBM's employee health plan to treat the twins, who nonetheless seemed healthy and normal.
IBM countered that Larimer was fired for not meeting company expectations on the sale of Lotus software and services.
U.S. District Judge Joan Humphrey Lefkow granted summary judgment for IBM, finding no ADA claim under the association section. (The judge also rejected a claim pursuant to the Employee Retirement Income Security Act, which is not covered in this column.)
In an opinion by Judge Richard A. Posner, the 7th Circuit affirmed, offering its first treatment of the association section, the three types of association claims and the Den Hartog test.
The 7th Circuit began with the statute:
''Larimer must lose even if his daughters are disabled or regarded as disabled. He is suing not on their behalf but on his own, under a provision of the ADA that forbids discrimination against 'a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association.' 42 U.S.C. §12112(b)(4). Notice first the oddity of requiring the plaintiff to show that he is a 'qualified individual,' since the only definition in the ADA of a 'qualified individual' is the definition of 'qualified individual with a disability' as 'an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.' 42 U.S.C. §12111(8).
''If this is the 'qualified individual' to which the association provision (section 12112(b)(4)) refers, then Larimer cannot obtain any relief under that provision because he has no disability! The term 'qualified individual' in that provision must simply mean qualified to do one's job, as assumed though nowhere discussed in the legislative history and the cases.''
Posner then defined the three categories of association claims:
''Three types of situation are, we believe, within the intended scope of the rarely litigated (this is our first case) association section. We'll call them 'expense,' 'disability by association' and 'distraction.' They can be illustrated as follows: an employee is fired (or suffers some other adverse personnel action) because (1) ('expenses') his spouse has a disability that is costly to the employer because the spouse is covered by the company's health plan; (2a) ('disability by association') the employee's homosexual companion is infected with HIV and the employer fears that the employee may also have become infected, through sexual contact with the companion; (2b) (another example of disability by association) one of the employee's blood relatives has a disabling ailment that has a genetic component and the employee is likely to develop the disability as well (maybe the relative is an identical twin); (3) ('distraction') the employee is somewhat inattentive at work because his spouse or child has a disability that requires his attention, yet not so inattentive that to perform to his employer's satisfaction he would need an accommodation, perhaps by being allowed to work shorter hours.
''The qualification concerning the need for an accommodation (that is, special consideration) is critical because the right to an accommodation, being limited to disabled employees, does not extend to a non-disabled associate of a disabled person.''
The court quickly ruled out types No. 2 and 3:
''This case fits none of the categories. (2) can be ruled out peremptorily; the girls' premature birth and resulting medical afflictions are neither communicable to Larimer nor predictive of his becoming ill or disabled. Likewise (3): there is no evidence that Larimer was absent or distracted at work because of his wife's pregnancy or the birth and hospitalization of his daughters.''
For the the expense category, however, the court found no evidence that IBM considered the $200,000 in insurance benefits in Larimer's evaluation as a salesman and his firing.
Even so, Larimer sought to prove an actionable claim under the Den Hartog test, as set out by Posner:
''Having no evidence, Larimer falls back on the ubiquitous McDonnell Douglas test for a prima facie case of employment discrimination. Den Hartog, the case with the most extensive discussion of the ADA's association provision, purports to use a version of the test that requires the plaintiff to show that '(1) the plaintiff was ''qualified'' for the job at the time of the adverse employment action; (2) the plaintiff was subjected to adverse employment action; (3) the plaintiff was known by his employer at the time to have a relative or associate with a disability; (4) the adverse employment action occurred under circumstances raising a reasonable inference that the disability of the relative or associate was a determining factor in the employer's decision.' Den Hartog, 129 F.3d at 1085; see also McGuinness v. University of New Mexico School of Medicine, 170 F.3d 974, 979-80 (10th Cir. 1998).''
Posner did note that there is some frailty in calling the Den Hartog test the McDonnell Douglas test for ADA association claims, but in the end, the 7th Circuit adopted Den Hartog and found that Larimer had no proof under the test:
''The test is sound, but it's not really a version of the McDonnell Douglas test because it requires the plaintiff to prove all the elements of what would be the prima facie case of discrimination against a relative or other associate of a disabled person even if there had never been a McDonnell Douglas case. This is apparent from the fourth element of the Den Hartog test, which requires the plaintiff to produce evidence that he was discriminated against because of the disability of a person with whom he has a relationship or other association.
''Compare this to the corresponding part of the McDonnell Douglas test, which in the case of employment discrimination based on race or some other invidious ground requires the plaintiff to prove only that he was replaced by someone of a different race” not that he was discriminated against because of his race. A plaintiff who can produce evidence of actual discrimination on the basis of disability has made out a prima facie case without regard to McDonnell Douglas.
''A true parallel to McDonnell Douglas in the association setting would allow a prima facie case to be made out if the plaintiff, having shown that he was qualified in the sense of meeting his employer's expectations (not a 'qualified individual with a disability,' as we explained earlier), went on to show that his employer knew he had a relationship or association with a disabled individual, that the employer fired him, and that he was replaced by someone who lacked such a relationship or association. This would not however be a very sensible test” which shows that there may be limits even to the cloning of McDonnell Douglas. ''
The court found that a true McDonnell Douglas test would not lend itself to an association claim:
''When deciding whether to adapt McDonnell Douglas to a new legal setting, a court should ask not, 'How can we create a formula closest to that one?' but, 'What conditions imply a comparably high likelihood that the employer is violating the statute?' In the present setting a true McDonnell Douglas test, as distinct from the Den Hartog test, would generate the prima facie case of disability discrimination when only the most tenuous basis for an inference of discrimination was present” for example when the employer knew merely that the plaintiff had a second cousin who was sterile, or that he had shaken hands with a person who was HIV positive.
''Better to require, as Den Hartog does though not in precisely these words, that the plaintiff present evidence that his case falls in one of the three categories in which an employer has a motive to discriminate against a non-disabled employee who is merely associated with a disabled person.''
Thus, adopting the Den Hartog test, the 7th Circuit affirmed judgment for IBM, finding no ADA association claim.
Copyright 2004 Law Bulletin
About the Author: Judge, a name partner of Judge, James &Kujawa LLC in Park Ridge, is a defense attorney who specializes in trials, appeals and insurance coverage. Judge graduated with honors from The John Marshall Law School and served as editor-in-chief of the school's law review.
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New format hastens textbook accessibility
Friday, August 13, 2004
eSchoolNews
Students with disabilities can anticipate faster access to curriculum materials
now that the U.S. Department of Education (ED) has formally endorsed a voluntary
national publishing paradigm known as the National Instructional Materials
Accessibility Standard (NIMAS). The standard will make it easier to convert
traditional textbooks into formats such as Braille or text-to-speech.
AAPD GENERAL COUNSEL OLLIE CANTOS NAMED TO HIGH-LEVEL GOVERNMENT POST
WASHINGTON, D.C. (August 6) -- At an event hosted yesterday by the U.S. Department of Justice commemorating the Americans with Disabilities Act, Deputy Assistant Attorney General Loretta King announced the selection of Ollie Cantos, General Counsel and Director of Programs for the 90,000-member American Association of People with Disabilities (AAPD) as Special Assistant to Assistant Attorney General for Civil Rights R. Alexander Acosta. Cantos is to begin service in his new post on Monday, August 9.
Among other duties, Cantos will play a key role in strengthening national outreach efforts to disability organizations, expanding the list of jurisdictions under Project Civic Access, and increasing the number of state building codes to become ADA Certified. (See http://www.ada.gov/.)
Since June 2001, Cantos served as International Coordinator of Disability Mentoring Day (DMD) whose purpose is to enhance meaningful internship and employment opportunities through job shadowing and hands-on career exploration. (See http://www.dmd-aapd.org .) Under his leadership, the program quadrupled in size and scope. Having just 1,600 mentees in the District of Columbia and 32 states in 2001, DMD grew to encompass participation by more than 6,000 mentees from all 50 states, 3 territories, and 17 foreign countries on 5 continents. Collaboration with employers from the private, governmental, and nonprofit sectors skyrocketed from 250 in 2001 to almost 1,000 in 2003. His efforts led to an expansion of local coordinators from jus(`~`)J Mike Savory J SeLf * * A wak(e)A _dvocacy [Org] (c) 2004 [Org] (c) 2004
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National Organization on Disability
910 16th St., NW, Washington, DC 20006
202/293-5960 Thackeray@nod.org
2004 ACCESSIBLE AMERICA COMPETITION ANNOUNCED:
MOST DISABILITY FRIENDLY COMMUNITY WILL WIN $25,000, NATIONAL RECOGNITION
WASHINGTON, D.C., July 21-The National Organization on Disability (N.O.D.) urges America’s mayors and chief elected officials to enter their communities in the fourth annual $25,000 “Accessible America” award competition, open to all U.S. cities and towns. It is sponsored by UPS, as were the past three years’ contests. Entrants will showcase how their citizens with disabilities are participating in and contributing to local community life. Entries must be postmarked by the deadline of October 31, 2004. Phoenix, Arizona was the 2003 winner, surpassing dozens of outstanding entries from diverse communities nationwide. Venice, Florida won the inaugural contest, and Irvine, California was the 2002 winner.
The winner of N.O.D.’s Accessible America 2004 competition will be a city or town where citizens with disabilities have opportunities for full and equal participation in the life of their community, including access to education, jobs, voting, transportation, housing, religious worship, and a full range of social, recreational, cultural, and sports activities. Another area that N.O.D. is giving special focus in the post-September 11 era is emergency preparedness for people with disabilities. The competition highlights thorough community-wide progress and inspires replication.
“People who have disabilities are part of every community, and deserve to feel welcomed in the towns and cities where they live,” said N.O.D. Vice Chairman Christopher Reeve. “Communities that make strong efforts to be accessible and welcoming to those of us with disabilities serve their citizens and visitors, and these communities gain culturally, socially, and economically.”
To enter the competition, communities will submit an official Accessible America application signed by their mayor describing how their city or town (or county that represents unincorporated communities within its borders) provides opportunities for citizens with disabilities to participate fully in community life.
910 16th St. NW * Washington, DC 20006 * 202/293-5960 * TDD 202/293-5968 * fax 202/293-7999
Accessible America Contest - 2
The contest launches a month after N.O.D. released its 2004 N.O.D./Harris Survey of Americans with Disabilities. The survey highlights ten key gap areas where Americans with disabilities have been documented, since the survey began in 1986, to be at a significant disadvantage in comparison to other Americans. The survey found that 31 percent of people with disabilities consider transportation to be a problem, compared to just 14 percent of other Americans. People with disabilities also report that they eat out, socialize with friends, and go to a place of worship less often than do other Americans, and they are less than half as likely to be employed. Welcoming and accessible communities help to close these gaps.
“Our nation’s commitment to people with disabilities is felt by individuals where they live. Americans with disabilities, who are one-fifth of the population, are eager to participate and contribute just like everyone else,” says Nancy Starnes, N.O.D. Vice President and Director of the Community Partnership Program, and hersel the former mayor of Sparta, N.J.
To learn more about the Accessible America 2004 competition - as well as the numerous benefits N.O.D.’s Community Partnership Program offers to member communities - visit N.O.D.’s web site, <http://www.nod.org>, or call Ms. Starnes at 202/293-5960. Member communities, represented by their mayors, receive guidance, complimentary copies of N.O.D. research reports and publications, legislative updates, alerts and bulletins on disability issues, and tips on working with constituents with disabilities. The program shares information about and promotes replication of model local disability programs through its growing network of towns, cities and counties committed to mainstreaming people with disabilities. Membership in the Community Partnership Program is not a prerequisite for entering the Accessible America competition.
The National Organization on Disability, which celebrated its 20th anniversary in 2002, promotes the full and equal participation and contribution of America’s 54 million men, women and children with disabilities in all aspects of life. For more information about N.O.D.’s programs, visit http://www.nod.org/.
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