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[music playing] You’re listening to the Disability Law Lowdown Show #43 with your host, Jacquie Brennan.

Jacquie Brennan: We’re just going to take a look at some things that are going on in the area of disability law right now so that you can keep up to date with what’s happening around the country.

The Justice Department has filed a civil complaint alleging that a Colorado Springs attorney violated the ADA. The lawsuit was filed in federal court in Denver and it alleges that Patric LeHouillier wouldn’t allow veterinarian Joan Murnane, her husband or her attorney into the office because Murnane was with her service dog. Te complaint says that Murnane has a brain injury and uses an Australian Shepherd dog to help with balance, with vision and with other tasks. It says that Murnane was supposed to be deposed, that means she was going to answer questions in a deposition, in LeHouillier’s office in 2006 but LeHouillier allegedly would not let the dog in because he was afraid it would soil his new carpet.

Port Louisiana apartment complexes and also two in Lafayette and one in West Monroe have to pay to make themselves accessible to people with disabilities as part of a settlement of a federal anti-discrimination lawsuit. The Justice Department reached this agreement and it says that the businesses are among eleven multifamily housing complexes in the south that are named in the complaint which was originally filed in Memphis where four of the complexes are located. Another is in Gulf Shores, Alabama and another one is in Tyler, Texas. Under this settlement, which still has to be approved by federal court in Tennessee, eleven defendants will pay all the costs related to making the complexes accessible to people with disabilities.

E-books, what are really electronic books that are called e-books, created some problems for schools that used them. Federation for the Blind and the American Foundation for the Blind have joined in a lawsuit against Arizona State University because of its use of these e-books which are often the kind that are read on a device like a Kindle. The university launched a pilot program and have about a hundred students who get all their material using Amazon's Kindle hardware and these little Kindle devices, I have one, allow users to hold more than three thousand books on the device.

In terms of not having to carry so many also not having to purchase all the books in hard copy and also probably a greener way to do things, but the device has a flat screen that doesn’t have any tactile keys and it does not include speech recognition software, so visually impaired users can’t download e-books and navigate the technology violate Title Two of the ADA. So the advocacy groups filed complaints with the Department of Educations Office of Civil Rights against several universities.

It’s up to the institutions that provide the programs and activities to make sure everybody can access those. What advocacy groups suggest should happen is that they should put pressure on the manufacturer of the e-book and really basically say we’re not going to use your product or recommend your product to our students until it’s accessible to all students.

ASU isn’t the first college to experience challenges in how it presents it and really not the first institution. The Los Angeles Public Library system recently agreed with the Reading Rights coalition to abandon its use of e-books that use the Adobe Digital Editions format because the technology could not be accessed by blind or other individuals with reading difficulties.

Those, including Duke University, that have lectures that are offered through Apple’s iTunes also had to open the door to individuals with visual impairment so they were able to use the software. First made the complaint, the National Federation for the Blind made a complaint in March 2008 and universities actually put pressure on iTunes U which it was by September of that year.

The Commonwealth of Massachusetts entered into an agreement with Apple to make Apple iTunes software, iTunes store and iTunes U accessible to people who are blind. Apple also provides support for people with hearing impairments including captioning support for the iPhone, iPod, QuickTime, and Apple TV.

The EEOC filed a lawsuit against P.A.M. Transport filed in Michigan. P.A.M. transport refused to let a driver return to work once he notified the company that he was HIV positive. P.A.M. requires all drivers to notify the company when any treatment is received from a medical professional. Because of the policy, the employee informed P.A.M. that he had had this routine appointment to monitor his HIV positive status. When that information was disclosed to the company, the company required him to provide a full release of his medical records and refused to let him return to work.

The EEOC lawsuit was filed on behalf of that individual employee as well as a class of drivers who were also subjected to medical inquiries under the company’s broad policy. “Firing an employee after learning he is HIV positive without determining whether he can continue to perform his job violates the Americans with Disabilities Act,” said EEOC trial attorney Nedra Campbell. “Such a broad policy imposes disability related inquiries that are not job-related and consistent with business necessity and therefore violates the ADA.”

The suit seeks to recover monetary damages to the employee and the class of drivers including back pay, compensation for emotional distress and punitive damages. The EEOC filed suit only after attempting to reach a voluntary settlement.

Disney World Resorts has a policy that says people cannot use Segues inside the park. Segues are those machines, they sort of look like scooters, people stand on them, I mean the old-timey scooters, not the sit-down scooters. They have a tall t-bar in front and a platform with a wheel on each side and a person stands on it and it propels them. A lot people with mobility impairments are able to use Segues where they are not able to walk long distances. People who use Segues requested that they be able to use them in Disney World and the Disney World people said no, it was against their policy.

The visitors who wanted to use the Segues challenged that saying that it violated Title Three of the ADA because they were forced to use wheelchairs or the bigger sit-down scooters which lowered their line of vision, reduced their stature and didn’t meet their mobility needs as well as the Segues did. Disney said that they didn’t allow the Segues because they believed they could pose a safety hazard to both the people who were riding on them and other guests.

So the Segue users filed a class action lawsuit against Disney and the district court did certify the class and then the class, and this is the class of Segue users, and Disney actually reached a settlement. It is filed when a settlement is reached. The court will hold a fairness hearing just to determine that the settlement is fair and sort of sign off on that. The settlement that they agreed on allowed Disney to continue its prohibition of Segues, but they would have a specific number that they would always have of these Segues, its own sort of stand-up electronic vehicles, and their vehicles used four wheels instead of two and had hand controls, but it would make those available to guests who had mobility impairments.

They went for the fairness hearing and the court said no. It said that the ADA requires that Disney provide only reasonable accommodations that are necessary to provide visitors to Disney full access to the facilities and services of the park and that stand-up vehicles are not necessary so Disney did not have to provide those. Even though they had agreed to, now they don’t have to because the court said that that settlement agreement did not pass this fairness hearing.

A California teacher, a resource specialist, Susan Barker, plaints about the limited services that were provided for students with disabilities in her school district in Riverside, California. She made a complaint with the U.S. Department of Education’s Office for Civil Rights and it says right after that her superiors in the school district started intimidating her. She says her colleagues stopped communicating by phone or email, excluded her from staff meetings, limited her responsibilities and changed her work location. She has filed a lawsuit that says that the school district constructively terminated her because they subjected her to an intolerable work environment.

At first, a lower court said she didn’t have the standing to sue under the ADA because she didn’t have a disability and she was claiming retaliation for advocating on behalf of her students under Section 504 of the Rehabilitation Act and the ADA. But on appeal, the Ninth Circuit Court of Appeals said no, that educators do have the right to claim retaliation even if they don’t have a disability if they are acting on behalf of other students.

-----reached an agreement with Beth Israel Medical Center. It’s a landmark settlement agreement reached with this medical center which is a major Harvard-affiliated teaching hospital in Brookline, Massachusetts. There were a lot of accessibility violations that were discovered during a compliance audit. Beth Israel Medical Center is spread out among thirty buildings in this Longwood Medical Area of Boston as well as in three community health clinics that are located in three other cities, Dorchester, Lexington and Chelsea, Massachusetts. Five of the buildings were constructed after the ADA was implemented and at least twenty-four of the buildings have been renovated since 1990 so that twenty-nine of the thirty buildings, at least, are subject to ADA requirements.

The DOJ compliance review revealed violations including things like maneuvering spaces that weren’t big enough near doorways, bathroom features that weren’t accessible, door knobs that weren’t operable by a closed fist, steep ramps and curb ramps, patient rooms that couldn’t be accessed, drinking fountains that were inaccessible to people in wheelchairs, a lack of accessible exam tables and equipment and a lack of accessible routes to some clinical areas. The settlement deals with these violations and other things assuring that ten percent of the existing patient rooms dispersed throughout the facilities are going to now be accessible. Each clinical or each clinical area or practice will have at least one examination table that’s accessible and a barrier removal plan is going to be developed as well as hospital policies and training needs will be reviewed and an ADA officer will be appointed.

----- of these who have visual impairments complain really around the country about problems with the bar exam and how they often have unnecessary obstacles to taking the bar exam which is, of course, a prerequisite to practicing as a lawyer. You might not think that would be a problem with a bunch of lawyers, but it is. There is a new lawsuit that says that the National Conference of Bar Examiners refuses to provide graduates with low vision and blindness with reasonable accommodations that will enable them to pass the multistate bar exam and the multistate professional responsibility exam, both of which are required of attorneys by state bars all over the place nationwide. The disability rights advocates and the National Federation of the Blind have filed suit on behalf of Stephanie Enyart.

The complaint alleges that the National Conference of Bar Examiners violated the ADA, specifically Title Three of the ADA, by repeatedly refusing to provide reasonable accommodations including the ability to take the test on a laptop computer equipped with screen reading software like JAWS or screen magnification software like Zoom Text. Enyart has successfully used these accommodations throughout law school and even in her current legal work, but they won’t allow her to have them for the bar exam. The National Conference of Bar Examiners has stated that it will continue to refuse those kinds of requests and insists that instead, people who have visual impairments could use alternate accommodations but ineffective and unsuited to certain disabilities. We’ll wait to see how that lawsuit comes out.

What sorts of technology can help people with visual impairments when it comes to different situations? Of course, JAWS is probably the best known of the screen reading softwares. It’s compatible with IBM Tools, Microsoft Office Suite, MSM Messenger, Word Perfect, Corel, Adobe, Internet Explorer and Firefox. What it does is it reads the content of the screen aloud to the person who cannot see the screen.

Serotek Systems Access is another screen reader software provider and it offers a System Access Mobile that allows users to install the system on thumb drives that they can access that way. There’s kReader Mobile that allows cell phones to snap pictures of the documents and then the technology determines the words and read them aloud to the person. There’s Dolphin Computer Access’s EasyReader and it offers support for e-pubs, which is short for e-publication books. So that’s just a few of the technologies that are available.

A case called McBride v Bic Consumer Products, a utility operator for a major consumer products manufacturer had a respiratory ailment that made her very sensitive to chemical fumes. She also had anxiety and panic disorders. She took a medical leave of absence and then was cleared to return to work as long as she completely avoided chemical, solvent or ink fumes and didn’t have any threatening confrontations. Her supervisor said she could wear a respirator to protect her from the fumes, but she refused that and she stayed home from work. Under the collective bargaining agreement that was in place and to which both she and the employer were subject, there were twelve months of leave that she could take. She took those twelve months, but once those were up she was discharged by the manufacturer and she sued.

The Second Circuit affirmed summary judgment for the manufacturer, so the employer won this one. They said that the employee failed to provide evidence that a reasonable accommodation was even possible. She requested reassignment to a new position but she didn’t provide any evidence that the position for which she was qualified, that also met her medical restrictions, was actually available. A lot of the available positions required a promotion and employers are not obligated to promote an employee as an accommodation, especially when, like in this case, the employee didn’t really have the proper education, experience or other qualifications that were needed. Other vacancies that were available involved exposure to fumes which was part of what she was restricted from medically and she didn’t suggest any reasonable accommodations that would allow her to do the job.

A nurse assistant coordinator at a hospital had a lot of different medical conditions. She had among other things, a back injury, diabetes, sleep apnea, reflux disease, asthma, muscle spasms, ambulatory dysfunction, shortness of breath, hypoglycemic disease and fainting spells. She requested and she was given several different accommodations including a four-hour work day, an afternoon schedule and a parking place near the back entrance. The coordinator was frequently absent, especially when the weather was bad or even when stormy weather was forecast because she was afraid that she would slip on slick surfaces. The hospital suggested several accommodations to get her to work, including clearing her sidewalks or taking a taxi or a van from home to the hospital’s covered entrance, using public transportation or even making up the work she missed. But she refused all of those accommodation offers.

The hospital fired her for mishandling some of her work after being counseled about it and she sued them in court. The Third Circuit affirmed summary judgment for the hospital. The Court said she was not otherwise qualified because she didn’t show up for work and attendance is an essential function of almost all jobs, including her job. Even though the hospital tolerated her absences for five years, it cited these performance problems which were a legitimate business justification for firing her. The coordinator had not handled paperwork as she was instructed to do and this caused problems in some of her cases.

A patient was taken to Staten Island University Hospital for treatment. The patient and his wife were both deaf and they and their minor children who could hear repeatedly requested sign language interpreters to help the parents understand what was going on. Although the family made the formal request through the hospital’s facilitator and directly to the doctors, the hospital did not obtain interpreter services as they promised to do, but just relied on the children to do the interpreting. The patient had a stroke after his surgery and remained hospitalized for an extended period.

The hospital did not provide interpreter services until the family commenced the lawsuit and the district court issued an injunction requiring the provision of a certified interpreter.

The district court granted summary judgment to the hospital on the merits of the 504 Damage Claim, that’s Section 504 of the Rehabilitation Act. The Court said there was no evidence that the hospital was deliberately indifferent to the family’s rights. That was at the District Court level. When it was appealed to the Second Circuit Court of Appeals they vacated that decision and pointed to testimony that said the doctors and staff actually laughed off the son’s repeated request for an interpreter and that decision makers who had the power to give them interpreter services were aware of the requests and didn’t grant them. The Second Circuit held that there was enough evidence to raise the question of whether the hospital was deliberately indifferent.

This gives you a little snapshot of some of the things that are going on in the ADA around the country right now. Thanks for tuning in.

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The Disability Law Lowdown is brought to you by the Disability Business Technical Assistance Centers, which are a network of ADA centers that provide training, technical assistance and materials on the ADA and other disability related laws. Funding for the Centers is provided by a grant from NIDRR, the National Institute on Disability and Rehabilitation Research. You can subscribe to the Disability Law Lowdown at our website at disabilitylawlowdown.com or on iTunes.



The Southwest and Rocky Mountain ADA Centers are part of a program of Independent Living Research Utilization at TIRR - Memorial Hermann in Houston, Texas, and is funded by the National Institute on Disability and Rehabilitation Research. If you have questions about disability law or would like to request materials or training, please call 1-800-949-4232. This podcast is protected by the Creative Commons Attribution Non-Commercial No-Derivative-Works 2.5 License. For more information and transcripts, visit www.ada-podcast.com.