|VOLUME 3, ISSUE 1||SUMMER 2013|
Under the ADA, employees are expected to be able to perform the essential functions of their jobs with or without reasonable accommodation. A function of the job does not have to be done frequently to be considered essential. In Scott-Bolton v. State of Alabama Bd. of Pardons & Paroles, a probation officer with multiple sclerosis was unable to pass her weapon re-qualification test and requested a permanent transfer to a desk job. Her position rarely used the skills tested by the exam, but the weapons qualification was a statutory component within the job description. The employer was not required to create a desk-only job when one did not exist previously.
The ADA may not excuse insubordination by an employee. In Bradley v. Little Rock Waste Utility, an employee had diabetes and sustained an injury at home so he was put on light-duty for several months. He was terminated after he became belligerent with his employer at a meeting and refused to leave the work premises until the police were called. He sued under the ADA claiming that the termination was due to his diabetes-related absences. The court dismissed his claims noting that the firing was due to insubordination and there was no evidence otherwise.
However, in Kelley v. Correctional Medical Services, Inc., a nurse refused to work a shift at a prison medical clinic by herself due to her mobility impairments after an accident and her unfamiliarity with the position. She had requested a shift that would not compromise her impairments. She was terminated for insubordination for refusing to work the assigned shift. The court found that there was enough of a history of disability- related disagreements between the nurse and her supervisor for the case to go trial. A fact finder could determine that insubordination was just convenient pretext for eliminating an employee who had engaged in ADA-protected conduct one too many times.
Title IIAlthough the ADA does not require a public entity to provide to individuals with disabilities services of a personal nature including assistance in eating, toileting, or dressing, a state that provides these services must do so in the most integrated setting appropriate to the needs of qualified individuals with disabilities. A group of North Carolina residents in Pashby v. Delia sued their state health services agency after they lost access to in-home personal care services (PCS) due to a statutory change establishing stricter eligibility requirements. The eligibility requirements for individuals in institutions were less stringent. Under the new policy - over 2400 in home recipients of PCS would lose them and would face some likelihood of institutionalization without them. North Carolina made the changes due to concerns of fraud and abuse of the program and a severe state budget crisis. The U.S. Court of Appeals for the 4th Circuit joined the Third, Ninth, and Tenth Circuits in holding that, although budgetary concerns are relevant in considering whether relaxing the criteria would fundamentally alter the nature of the PCS program, financial constraints alone cannot sustain a fundamental alteration defense under the ADA.
One would think that something as essential as being able to access your home from the street or being able to use sidewalks would be situations easily remedied without litigation. However, in Vance v. City of Maumee, a woman who had trouble navigating the steps of her front home entrance requested alley access to her home. She had both written requests to the City of Maumee and made numerous phone calls only to be shoveled around the system for over three years. The City claimed not to recall receiving plaintiff's communication. When she tried to remedy the problem the City commissioner stopped construction of the pad that would be used for access and erected "road closed" temporary barricades at the east end of the alley. The Court found, as a matter of law, that the City was required to approve her accommodation request.
In a similar ruling in Hamill v. North Wildwood City, a federal court found in favor of two visitors who used wheelchairs against North Wildwood City ("North Wildwood") for violating the ADA. On their visits to the city, they could not use sidewalks and curbs for mobility due to the poor upkeep by the City. As if that did not stink enough, the men could not even access the public port-a-potty! The City's attempt to claim that the men lacked standing to sue for injunctive relief was futile. They patronized North Wildwood, lived in close proximity, and planned to return in the future.
Speaking of standing, you might want to make sure that you have a leg to "stand on" going into your lawsuit. A student of Orange County Community College found this out in Widomski v. State Univ. of N.Y. (Suny) at Orange, when he alleged discrimination which prevented his participation in a phlebotomy clinical program based on a perceived disability of his hands shaking. That myth was dispelled when he was unable to show that the university ever perceived him as being unable to perform a "class" of jobs. Rather they perceived him as unable to complete the phlebotomy portion of his clinical rotation due to his shaking hand. His claim of discrimination on the basis of a perceived disability failed and he was later expelled for his unrelated participation in unethical academic activities.
Title IIIThere are increasingly more cases springing up regarding people with mental illnesses claiming that clinicians are making stereotypic assumptions about their dangerousness to themselves and others. In the third circuit court case of Obado v. UMDNJ, a patient who has a history of mental illness was unable to present any evidence that his involuntary commitment was the result of discriminatory animus. The healthcare providers based their decision on psychological examinations and tests.
Likewise in Schweitzer v. Crofton, a person had a history of non-compliance with psychiatric treatment and medication and had previously been hospitalized for reasons related to her bipolar disorder. She became pregnant by her boyfriend, who suffered from schizophrenia and under doctor's orders she discontinued or reduced the dosage of her lithium medication because of the belief that the medication would harm the baby. After giving birth, she exhibited signs of neglect and the inability to appropriately care for her child. As a result, Child Protective Services became involved and awarded custody to her parents. She unsuccessfully argued that assessments and conclusions of her fitness to care for her child were based on stereotypical views of individuals with mental illness. The court determined that there was no evidence that the decision to remove the child was solely based on her disability. The decision to remove the child was based on her conduct, behavior, and history of noncompliance with psychiatric treatment.
Federal courts have ruled that a plaintiff lacks standing to sue for injunctive relief under the ADA if the plaintiff is unlikely to use a facility or business again in the future. A former participant in a substance abuse program sued the facility for negligence and failure to accommodate him under the ADA for a medical disability that rendered him sleepy and needing a nap despite the programs rule against day time sleeping. The court in Coleman V. River Valley Behavioral Health, Inc. found that Coleman had no standing because he needed to establish a likelihood of returning to the facility that indicates a threat of future injury. Coleman had no need for on-going or future substance abuse rehabilitation because he had been sober for years and was not ordered to complete rehabilitation by the court as part of his sentence or probation. The court also denied Coleman monetary damages because these damages are not a remedy under a private Title III lawsuit.
Welcome to the Summer 2013 edition of the ADA Case Law Digest. The digest features 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.
If you would like
to learn more about
these cases and others,
please visit the
Great Lakes ADA Center
University of Illinois Chicago
1640 West Roosevelt Road, Room 405
Chicago, IL 60608
Southwest ADA Center
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2323 South Shepherd Boulevard
Houston, Texas 77019
Phone: (713) 520-0232 (V/TTY)
Fax: (713) 520-5785
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