|VOLUME 5, ISSUE 4||Winter 2015|
Employees do not have to explicitly ask for a reasonable accommodation to be protected by the ADA. In Adams v. Persona, an employee sued for retaliation after being terminated after taking time off for treatment for his alcoholism. The employer had originally suggested treatment after the employee admitted his alcoholism and argued that the plaintiff had never requested this accommodation. The court here held that the plaintiff's admission was sufficient to trigger the request for accommodation process, thus providing him with protection from retaliation under the ADA.
Under the ADA, reassignment to a different position is a reasonable accommodation of last resort when other accommodations are not possible. However, there must be open positions available that the employee is qualified for. In Arthur v. American Showa, Inc., the company had a number of open positions but the employee was unable to take them due to restrictions from his spina bifida. He suggested moving another employee to one of the open position while he took that employee's position. The court ruled that displacing another employee for his position was an unreasonable request under the ADA.
Those that are responsible for operating and managing correctional facilities may have an affirmative duty to accommodate inmates with obvious disabilities. In Pierce v. District of Columbia, the plaintiff alleged that the prison official in the District of Columbia discriminated against him because of his disability. The plaintiff, who has hearing loss, communicates in American Sign Language. The plaintiff claimed the defendant failed to provide "adequate access to a qualified ASL interpreter, telecommunications devices, visual alarms, and visitation." The defendant countered by arguing that the plaintiff received effective communication with written notes and lip reading, and that the plaintiff never specifically requested accommodations. The court granted the plaintiff's motion for summary judgment on the issue of disability discrimination because "no staff person ever assessed Pierce's need for accommodation or otherwise undertook to determine the type of assistance that he would need to communicate effectively with others during his incarceration." The court found the defendant's argument immaterial, instead holding that the defendant violated Title II as a matter of law when the defendant failed to evaluate the plaintiff's need for accommodation at the time he was taken into custody.
In McKinnie v. Dart, the court analyzed the plaintiff's claim for inadequate accommodations when he was housed at Cook County Jail. The plaintiff uses a prosthetic leg, and he alleged that he was denied housing in an accessible unit, was unable to shower, and had to use the stairs and needed assistance with toileting because the restrooms did not have grab bars. The defendants argued that they did not violate Title II because the plaintiff did not formally request the accommodations. The court disagreed with the defendants noting that a formal request is not required, and that the plaintiff made his disability clearly known. What's more, even if the plaintiff did not request an accommodation, then the defendants still owed a duty since his disability was obvious.
Similarly in Mooring v. California Department of Corrections and Rehabilitation, the plaintiff also uses a prosthetic leg. He was placed in units where the showers did not have grab bars; and either had to hold onto the showerhead for support or sit in a plastic folding chair that would be provided to him upon his request. The plaintiff eventually fell and began using a sink to bathe. In his suit, the plaintiff argued that the failure to provide accessible shower facilities was discriminatory. The defendants countered by arguing that the plaintiff needed to submit specific forms to request grab bars. The court sided with the plaintiff, reasoning that the plaintiff's disability was obvious and nothing in the ADA requires the plaintiff to fill out forms to request an accommodation.
A suit alleging retaliation under the ADA can only be brought by natural persons. In Michigan Flyer v. Wayne County Airport Authority, the plaintiffs, two private transportation companies, brought suit that alleged retaliation by the defendant after the plaintiffs supported a suit brought by individuals with disabilities against the Airport Authority. The court dismissed the plaintiffs' suit, holding that the ADA's retaliation provision applies to "individuals" a term that refers to natural persons.
Medical providers ought to ensure that their policies and trainings address how staff can effectively communicate with persons who have hearing loss. In Perez v. Doctors Hospital at Renaissance, the plaintiffs claimed that the defendants did not provide effective communication. The plaintiffs have hearing loss and communicate in American Sign Language. They have a child who receives medical treatment at the defendant's hospital. They allege that the defendants, on several occasions, failed to provide an ASL interpreter; and Video Remote Interpreting services malfunctioned when used. The district court dismissed the plaintiffs' claim because the plaintiffs sought injunctive relief and the court did not find that they would "face a palpable present or future harm." The Court of Appeals reversed the dismissal. The Court found that the defendant's failure to revise its ADA compliance policy and its lack of staff training "creates a possible inference that the plaintiffs' problems with the provision of auxiliary services will continue in the future."
To be subject to Title III of the ADA, an organization, association or entity does not necessarily have to own any physical premises. In Nathanson v. Spring Lake Park Panther Youth Football Association, the plaintiffs sought relief under Title III because their request for an American Sign Language interpreter was denied. The Football Association argued that the plaintiffs' ADA claim must be dismissed because it is not a place of public accommodation but an association that does not operate a physical place. The court disagreed with the defendants, noting that the Football Association uses the football fields as the primary location for its activities. Even though the defendants do not own the football fields, they have a significant degree of control and involvement over them.
Conversely, in Seese v. Prudential Insurance Company of America, the defendant issued a long term disability policy through the plaintiff's employer as an employee benefit. The plaintiff sought the long term disability benefits after he left his employer. Prudential denied his claim. In his suit, the plaintiff argued that denial of his long term disability claim was a violation of Title III of the ADA. The defendant moved to dismiss arguing that it was not a proper defendant under the ADA. The court agreed with the defendant because the insurance plan was not offered to the public in general, and thus the defendant is not a public accommodation under Title III of the ADA. The plan was private, limited to employees.
Welcome to the Winter 2015 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.
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
Independent Living Research Utilization
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