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Welcome to the summer edition (2012) of the ADA Case Law Digest. The digest will now be released on a quarterly basis and feature recent additions to the ADA Case Law Database. The database is a comprehensive search tool that allows the user to find significant court cases, settlement agreements, and consent decrees that help interpret the Americans with Disabilities Act. The database and the digests are produced through the collaboration of the Great Lakes ADA Center and the Southwest ADA Center.

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  VOLUME 2, ISSUE 2 SUMMER 2012 

Title I

Ever since the Supreme Court decision in Cleveland v. Policy Management Systems Corp., courts have occasionally had to tackle situations where a plaintiff must prove that he was a qualified employee with a disability under the ADA, even though he had applied for or receives social security disability benefits. Under Social Security laws, that person has to claim that he no longer able to work. This seeming contradiction does not automatically disqualify the person's ADA case; however, two district courts dismissed ADA claims in Zern v. Pennoni Associates, Inc. and Cavaliere v. Advertising Specialty Institute when the plaintiff failed to reconcile the contradiction.

Sometimes, reassignment to another position is a reasonable accommodation under the ADA for an employee who is no longer able to perform in his/her current position. Of course, there should actually be a vacant position and the employee should be qualified for that new position. However, in Equal Employment Opportunity Commission v. United Airlines, reassignment is not guaranteed when those two conditions are met. The employee may have to compete with other applicants. If there is a more qualified applicant than the employee, the employer does not have to make the reassignment.

The ADA Amendments Act was passed in 2008 to make courts and plaintiffs focus on whether the person has been discriminated against rather than on whether that person has a disability. However, at least one court in Hardwick v. John and Mary E. Kirby Hospital (C.D. Ill. Feb 22, 2012), still requires a plaintiff to provide some evidence that she is disabled. A nursing assistant at a hospital had a stroke and suffered from dizziness, confusion and lack of vision, yet the court ruled that she failed to show any evidence beyond "vague generalities" that she was substantially limited by her impairments.

An accommodation request that is reasonable on a temporary basis may not be reasonable on a permanent basis as a manager found out in Hanlon v. Missouri Department of Health and Human Services (W.D. Mo. Feb. 17, 2012). She had requested to work at home whenever she had a back flare-up. Even though her employer had previously granted this accommodation on a temporary basis, the duties of her job made a permanent request unreasonable.

Finally, when you sue your employer, you better make sure they don't have "dirt" on you. A staff doctor sued the medical center that employed him claiming they fired him due to his age and disability in Ball v. Einstein Community Health Associates. However, the court sided with the employer when their reasons to fire him were given: improper billing, questionable narcotics prescription writing, and failure to comply with the pain management policy.


Title II

One of the first major disability rights cases heard by the U.S. Supreme Court dealt with zoning laws with respect to residential group homes in City of Cleburne v. Cleburne Living Center, Inc. Over 25 years later and after the ADA, people apparently still don't want to live near group homes because of cases like United States v. Mayor and City Council of Baltimore (D. Md. Feb. 29, 2012) and Montana Fair Housing, Inc. v. City of Bozeman. Both cases featured zoning laws that discouraged or prohibited group homes for people with disabilities from living in specific areas that other people can. These laws were thrown out by the courts as being discriminatory under the ADA.

Then you have your bizarre but true cases that involve schools and children: One parent sued a school in A.M. v. NYC Department of Education for refusing to heat up her son's controlled diet lunch using a microwave in the teacher's lounge. The son had diabetes and was not eating his unheated lunches. The judge pointed out that the requested accommodation was not necessary due to his disability. Kids just like to eat hot lunches. What was bizarre was that the school chose to litigate this rather than simply provide a microwave for the general student population to use. Another parent sued a school for refusing to accommodate her daughter whenever she had anxiety attacks that made her fear she would drown. The daughter was a member of the swim team and wanted to leave the pool area whenever she would have these attacks, even during practices or competitions. This case is S.S. v. Whitesboro Central School District.

Cab riders successfully sued New York City over the inaccessibility of their taxis in Noel v. New York City Taxi and Limousine Commission. Even though the New York commission only licensed taxis, the court found that the state of accessible taxi service in New York was a direct result of their policies, practices, and regulations. Only 233 of the 13,237 licensed taxicabs were wheelchair accessible. As a result, availability is scarce, and wait times for wheelchair accessible taxicabs are much higher than wait times for non-accessible taxicabs.

With the upcoming elections, accessible voting is an important concern for the U.S. Department of Justice. They entered into a settlement agreement with the City of Flint, Michigan to make all of the city's polling places more accessible for individuals with mobility impairments after receiving a complaint against the city.


Title III

Almost 15 years after the Supreme Court listened to its first ADA case in Bragdon v. Abbott, where a dentist refused to treat a patient with HIV based on ignorant fear, we still have health care providers that continue this type of discrimination. The Department of Justice settled with a clinic in Sacramento whose podiatrist had refused to perform surgery on a patient and a chiropractic clinic in Nashville where a doctor had outright refused to treat people "like him".

The Department of Justice has reached settlements with hospitals in Michigan and Iowa over their effective communication obligations. The hospitals had refused or failed to provide sign language interpreters to their deaf patients who had requested them. One hospital in Iowa had also inappropriately relied on a patient's seven-year old daughter to provide interpretation.

A fitness club also drew the ire of the Department Justice when it refused to allow an attendant to accompany a person with developmental disabilities while she excercised. After they complained, the club retaliated by revoking memberships for not only her but also the owners of the residential facility that she lived at.

Meanwhile in Shaywitz v. American Board of Psychiatry and Neurology (S.D.N.Y. Jan. 27, 2012), a physician sued the licensing board over his psychiatry certification exam. He has dyslexia and the exam was divided into two parts. In applying for the exam he checked off a box to request accommodations for the first part of the exam but not the box for the second part. Guess which section he failed? The court ruled for the board because he did not give them notice that he needed accommodations for the second part. Nowhere mentioned is whether his dyslexia impacted his box checking skills.




Other Disability Law Websites
These cases represent an excerpt of the additions to the database. If you would like to learn more about these cases and others, please visit the ADA Case Law Database at http://www.adacaselaw.org