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Welcome to the Winter 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. Prepared by George Powers and Vinh Nguyen, Southwest ADA Center.

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  VOLUME 4, ISSUE 4 WINTER 2014 

Title I

Under the ADA and Section 501 of the Rehabilitation Act, employers are required to engage in an interactive process to determine the necessary and appropriate accommodations after an employee gives notice that she needed reasonable accommodation. This process may take more than a month, like in Ward v. McDonald, as long as there is a continuing good faith dialog to find an accommodation. The employer had required more information from the employee's doctor on whether the accommodation would be effective, but the employee resigned instead claiming that she was denied the accommodation.

Terminating an employee after he requests leave under FMLA and the ADA will be viewed suspiciously by the courts like in Johnson v. Chrysler Group, LLC. Johnson had requested leave due to symptoms from Meniere's disease, and his employer started an investigation into his absences around the same time because someone had complained he was leaving work early. He was terminated after the investigation found that he was absent or tardy without excuse, left his workstation without permission, and failed to return to his workstation without permission on multiple occasions. The court ruled that the jury could view the investigation as pretext for firing him after he exercised his FMLA and ADA rights.

Under the ADA, employers are prohibited from making inquiries about an employee's disability unless the inquiry was job-related and consistent with business necessity. In Bates v. Dura Automotive System, Inc., an employer was testing employees for the illegal use of drugs. Following a positive test, the tester asked the employees to list all prescription drugs they were taking. Those who were taking drugs that affected their ability to operate machinery were told to stop taking them. The ones who retested positive were fired. A jury had found that the drug test was neither job-related nor a matter of business necessity. The court ruled that the jury should decide whether this drug testing was a permissible test for the illegal use of drugs or a prohibited medical inquiry.

Title II

Local governments, under Title II of the ADA, have a responsibility to ensure that designated polling sites are accessible to people with disabilities. In Disabled in Action, et al. v. New York City Board of Elections, the appellate court upheld the lower court's finding that the defendant had violated Title II of the ADA and Section 504 of the Rehabilitation Act by failing to provide meaningful access to polling sites. The defendant is responsible for identifying and designating poll sites that are accessible to voters with disabilities in New York City. According to the survey data, 80% or more of the polling sites surveyed contained at least one physical barrier to access; including those related to ramps, entryways, pathways, interior spaces at poll sites, and missing or misplaced signage. The lower court granted summary judgment in the plaintiffs' favor and the defendants appealed on the ground that the plaintiffs did not show that any voter was denied the right to participate in the election process. The appellate court dismissed the defendant's contention, reasoning that the plaintiffs do not need to prove that they have been completely prevented from enjoying a service, program, or activity; rather the standard relates to meaningful access to a service offered. The court ruled in the plaintiffs' favor finding that the defendant denied the plaintiffs meaningful access to its voting program by designating inaccessible poll sites and failing to assure their accessibility through temporary equipment, procedures, and policies on election days.

Legitimate health and safety concerns may override the protections afforded to service animals under Title II. In Anderson v. City of Blue Ash, the plaintiffs challenged a local zoning law which prohibits farm animals, including miniature horses, on residential properties. However, the ordinance makes an exception for animals otherwise specifically permitted by federal law. The plaintiff's physician recommended and prescribed hippotherapy or therapy aided by a horse. The city received several complaints of offensive smells and other "health issues," and eventually discovered that the plaintiff was housing pigs, chickens, dogs, cats, and miniature horses; and thereafter the city passed an ordinance disallowing farm animals. The plaintiff is arguing that the city violated the Fair Housing Act and the ADA by denying the plaintiff's request for a reasonable accommodation and enforcing the ordinance. The court granted the defendant's motion for summary judgment, ruling that the miniature horse was not protected by either statute. The horse was not fully trained as a service animal, was not a therapy animal, and did not provide therapy. Having the miniature horse in the limited residential space was also found to be unreasonable since it compromised the legitimate health and public safety concerns of the defendant and its citizens. Finally, the court reasoned that the accommodation was not necessary since the plaintiff could obtain hippotherapy by traveling to a local farm or stable, and, in fact, she did so for some period of time.

A local government may not be required to provide proper medical staff and care to incarcerated persons with disabilities under Title II. In Estate of McCall v. Houston County, the court ruled that the defendants did not violate the ADA or the Rehabilitation Act by failing to fund staff and medical care adequately at a county jail. McCall, who had a number of psychiatric disabilities, was arrested and transported to Houston County Jail after making threats to hurt himself or others. The evidence clearly established that McCall was never examined by a psychiatrist because one was not staffed at the facility; and he did not receive the proper medication for at least a week. McCall's physical and mental state progressively deteriorated, and was not medically examined until his death. He died from cecal volvulus, an extremely painful condition, for which death is very uncommon due to its nature. The plaintiff argued that the county excluded, denied benefits to, and discriminated against McCall by failing to fund staff and medical care adequately and in particular by failing to hire a psychiatrist for six months. The court disagreed and granted the defendants' motion for summary judgment because there was no evidence that the failure to hire and fund staff was "because of" McCall's disability.

Title III

Title III cases often involve architectural barriers of access to places of public accommodation. In Snyder v. Lady Slings the Booze, LLC, the court reasoned that the defendant's suggested accommodations as an alternative to an architectural barrier did not comply with Title III of the ADA. The plaintiff, Snyder, has muscular dystrophy and uses a motorized wheelchair. He attempted to gain access to a bar owned by the defendant, but was unable to because of a four inch step in front of the entrance. Upon inquiry of the manager, the plaintiff was informed that there was no ramp he could use to enter the premises. Although the plaintiff had a portable ramp in his vehicle which he could have used to enter the bar, the manager refused to allow him to enter. The manager claimed that the plaintiff was denied admittance because he was intoxicated and belligerent and refused to pay the entry fee. The defendant argued that removal of the step barrier did not violate the ADA because its removal was not readily achievable; since the defendant was denied a building permit for a permanent ramp. The defendant argued that the alternative accommodation of having employees ready, willing, and able to assist patrons who use wheelchairs negotiate the barrier constitutes a reasonable accommodation under the ADA. The plaintiff countered with the argument that the accommodation is inherently unsafe and does not account for patrons with heavy, motorized wheelchairs; and suggested that a portable ramp may be more appropriate. The court ultimately denied the defendant's motion for summary judgment, concluding that the defendant had failed to carry its burden of establishing that there are no alternative accommodations which are readily achievable.

Furthermore, in Lemmons v. Ace Hardware Corp. , the court held the defendants liable for violations of the ADA's alterations provisions committed by the store's prior owners. The plaintiff was a regular patron of the defendants' store, which was built in 1915 and had several barriers of access. The building underwent a $75,000 earthquake retrofit in 1997, which constituted an alteration under the ADA. The defendants argued they were not liable for the noncompliant alterations because they purchased the building well after said alterations. The court disagreed and ruled in the plaintiff's favor reasoning that, "because the ADA actions are limited to injunctive relief, such relief can be meaningful only against the person currently in control of the building." Otherwise, "the ADA would create liability in persons against whom there is no meaningful remedy provided by the statute."

Under Title III, medical personnel have a duty to communicate effectively to patients and their companions. In McCullum v. Orlando Regional Health Care System, the appellate court upheld a lower court's ruling that the defendant hospitals were not obligated to provide qualified ASL Interpreters for a patient with hearing loss. The hospital staff used written notes and visual aids, and relied on the patient's parents and sister, who interpreted for him using sign language; which the court found to be sufficient. The plaintiffs' appealed the lower court's determination that the patient's parents and sister lacked standing. The appellate court dismissed the plaintiff's contention, reasoning that non-disabled individuals may not seek relief under the Rehabilitation Act and ADA for injuries other than exclusion, denial of benefits, or discrimination that they themselves suffer. The court also noted that compensatory damages were not proper since there was no proof of discriminatory intent. Regulations stating that "a public accommodation shall not rely on an adult accompanying an individual with a disability to interpret or facilitate communication" were not enacted at the time of the patient's hospitalization.





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