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Welcome to the Fall 2014 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.

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  VOLUME 4, ISSUE 3 SPRING 2014 

Title I

Employees who pursue their rights under the ADA are protected from retaliation by their employers. In Equal Employment Opportunity Commission v. Ford Motor Co., a worker had filed a complaint with the EEOC charging that her employer did not accommodate her disability. Afterwards, her supervisor began conducting intimidating one-on-one meetings with her and held a meeting with all of her coworkers to discuss her attendance problems. She also began receiving negative performance reviews for the first time. The court ruled that there was enough evidence for this issue to be decided at trial.

When suing an employer for discriminatory treatment, a plaintiff must prove that the employer knew about the employee's disability. In Yarberry v. Gregg Appliances, a worker with bipolar disorder was fired after entering the store after-hours and violating company policy. He had also refused to cooperate in an investigation into his after-hours activities. The employee had attributed his behavior to lack of sleep, a recent move, and stress related to his engagement. The court noted that mere knowledge of an employee's symptoms does not equate to knowledge of his disability.

Title II

Title II of the ADA requires that new construction and alterations by state and local governments are readily accessible to individuals with disabilities. Any alteration made, even if temporary, should not decrease access to a part of a facility. In Cohen v. Culver City, the Ninth Circuit ruled that a city could be held liable for a blocked curb ramp. The plaintiff, who used a cane, was injured when he tripped and fell as he attempted to walk around a car show vendor's display blocking a curb ramp to a sidewalk. The lower district court erred in reasoning that the plaintiff was not denied access because he could have taken a "marginally longer route" to a different curb ramp. This reasoning applies when a public entity is modifying existing facilities to achieve ADA compliance under 28 C.F.R. § 35.150. Here, by contrast, the City was in compliance with the ADA but allowed elimination of the disabled access it had built. The court concluded that the City's conduct was more analogous to altering its sidewalks for reasons unrelated to ADA compliance, as contemplated by 28 C.F.R. § 35.151.

Title II prohibits a public entity from administering a licensing or certification program that discriminates against people on the basis of disability, and public entities must make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability. In Dunn v. Louisiana Department of Public Safety & Corrections, a federal court found that allowing the plaintiff to write his answers to a portion of the commercial driver's license examination, instead of communicating verbally, would have been a reasonable accommodation, which the defendants failed to provide. The first part of the test is the pre-trip inspection, during which the prospective commercial driver points out various parts of the truck that need to be examined prior to driving, and explains what he is checking and why. The license office did not modify any of the testing procedures for Dunn, and he was forced to gesture to parts of the truck and attempt to vocalize his answers. The Court reasoned that the requirement that an applicant must be able to "read and speak the English language sufficiently" refers to the ability to communication in English, as opposed to the physical ability to speak. The Court held that a failure to provide reasonable accommodations for the plaintiff violated the anti-discrimination provisions of Title II and Section 504.

Under Title II of the ADA, a public university may not base a decision for admissions on a person's disability. In Sjostrand v. Ohio State University, the plaintiff, Sjostrand, had outstanding qualifications. She "graduated magna cum laude from the Ohio State University [.] in only two and a half years, her grade-point average (3.87) was tied for highest in the applicant pool and her GRE scores exceeded the school's requirements." After applying to Ohio State's Ph.D program in School Psychology, she was interviewed by two professors; and the focus of the interviews was her disability, Crohn's disease, more than anything else. "Eventually, of the seven applicants interviewed by the school, the only applicant rejected was Sjöstrand." The reason given was that "she did not fit the program." The appellate court disagreed with the magistrate judge, holding that there existed sufficient evidence to support a claim of discrimination. More specifically, the Court found relevant the subject matter of the interview, the vague and prolonged explanation of the application's denial, and the fact that the program admitted another applicant with significantly lesser qualifications than the plaintiff.

Also of importance is a recent settlement agreement which ensures the right of qualified bar applicants with psychiatric disabilities to have equal access to the legal profession as required by the ADA. In United States v. Louisiana Supreme Court, the Department of Justice settled with Louisiana over its bar admissions process. Louisiana had based recommendations about bar admission on mental health diagnosis and treatment rather than conduct that would warrant denial of admission to the bar. The settlement agreement prohibits the court from asking unnecessary and intrusive questions about bar applicants' mental health diagnosis or treatment. It also requires the court to refrain from imposing unnecessary and burdensome conditions on bar applicants with mental health disabilities, such as requests for medical records, compulsory medical examinations or onerous monitoring and reporting requirements.

The ADA mandates that a public entity provide appropriate auxiliary aids and services where necessary to afford qualified individuals with disabilities an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity of a public entity. In United States v. Orange County Clerk of Courts, the Department of Justice reached a settlement with a county court in Florida to resolve allegations that the court clerk failed to provide a blind attorney with electronic court documents in an accessible format readable by his screen reader technology, despite repeated requests.

Under the settlement agreement, the Orange County Clerk of Courts will provide individuals with disabilities with any document in the official court record in an accessible format upon request, and ensure that the Clerk of Courts' website is accessible to individuals with disabilities, including blind individuals, in accordance with the Web Content Accessibility Guidelines (WCAG) 2.0 Level AA, available at http://www.w3.org/TR/WCAG20/. The Clerk of Courts will also pay $10,000 in damages to the complaining attorney and undergo training on the ADA and WCAG 2.0 AA accessibility requirements.

Title III

The ADA requires a public accommodation to provide auxiliary aids and services when necessary to ensure effective communication with individuals with disabilities. In Martin v. Halifax Healthcare Systems Inc., the Court held the defendant hospital may not have been obligated to provide an American Sign Language interpreter to three patients who are deaf. "On those occasions when no interpreter was present, hospital personnel communicated with the Plaintiffs by other means, including written notes, gestures, and in some instances 'Lifelinks,' a video relay interpreting service." The plaintiffs claimed that "anything aside from an ASL interpreter was inappropriate for treatment or a hospitalization involving complicated medical procedures and terminology." The Court disagreed, noting that "there is no evidence that the alternative methods of communication employed by Halifax Hospital were insufficient to allow any plaintiff to understand their circumstances and treatment as well as they would have understood them if a live ASL interpreter had been utilized. Similarly, there is no testimony or other evidence that any plaintiff would have reached a different decision about treatment options or reached a more beneficial result if the medical providers had only communicated via a live ASL interpreter."

To be successful on a claim for retaliation, the plaintiff must show that the defendant's conduct violated the ADA. In Lee v. Del Mar Thoroughbred Club, the court dismissed the plaintiff's claim for retaliation because he failed to show that defendants' acts violated the ADA. The plaintiff, Lee, was a constant patron of the defendants' racetrack. After settling a previous lawsuit with Del Mar Thoroughbred Club, he "discovered that the [accessible] spaces adjacent to the race track entrance had been modified and re-configured." The accessible parking signs were moved two feet forward, and the plaintiff's vehicle, which is 22 feet long, was no longer able to fit. "Disabled parking need not accommodate a 22-foot long vehicle as only a minimum of 18 feet long is required." The defendants' expert testimony established that the parking spaces met accessibility standards, and the plaintiff's witnesses lacked first-hand knowledge and technical experience in accessible design.

Also of note is the consent decree between DFEH and LSAC Inc., in which the California Department of Fair Employment and Housing alleged that the Law School Admission Council (LSAC) engaged in widespread and systemic discrimination in violation of the ADA. Under the proposed consent decree, LSAC will pay $7.73 million in penalties and damages to compensate over 6,000 individuals nationwide who applied for testing accommodations on the Law School Admission Test (LSAT) over the past five years. The decree also requires comprehensive reforms to LSAC's policies and ends its practice of "flagging," or annotating, LSAT score reports for test takers who receive extended time as an accommodation for their disability.





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