|VOLUME 6, ISSUE 1||SPRING 2016|
Under the ADA, an employer is prohibited from terminating an employee based on disability, but the employer is not prohibited from discharging an employee for misconduct even if the misconduct was related to a disability. In McLean v. Abingon Memorial Hospital, a medical technician who has sleep apnea had made several critical mistakes in the lab, four within a 3-week period. Medical employees generally average about one critical mistake a year. She was suspended after the fourth mistake. She requested a transfer because she couldn't work with her bosses but was terminated shortly afterwards. Even though her patients were not harmed, the hospital successfully argued that her errors posed a direct threat to her patients. The proper analysis was whether the errors could result in harm to the patient.
Drug screenings are not considered impermissible medical examinations under the ADA if their purpose is to reveal illegal drug use. In E.E.O.C. v. Grane Healthcare Co. (W.D. Pa. Sep. 15, 2015), job applicants were required to take a drug test. Any positive results were cross-checked against a list of prescription drugs that the applicant disclosed. Applicants who tested positive without having disclosed a corresponding drug were not hired. The court found that the drug tester only looked at the list after a positive test and that this review was intended to check only on illegal drug use.
The Eleventh Amendment grants states immunity from suit for money damages. Some Judicial Circuits have held that because of the Eleventh Amendment citizens cannot bring Title II suits against state governments without a violation of a fundamental right. While other Circuits have taken a more liberal approach and have held that Congress properly abrogated state sovereign immunity when passing the ADA. In Miller v. Ceres Unified School District, the plaintiff alleged that the defendant denied him full and equal access when he attempted to attend his daughter's golfing event. The plaintiff was unable to properly access the golf course's facilities and denied the ability to watch his daughter's event due to barriers to access found in the parking lot, bathrooms, and the golf course itself.
The defendants moved to dismiss, for lack of subject matter jurisdiction, on the basis that the Eleventh Amendment precludes a suit against the defendants since the school district is an agency of the state. In other words, the defendants argued they did not violate a fundamental right, and state sovereign immunity is only abrogated upon a violation of a fundamental right. The Court tasked with determining whether Title II of the ADA broadly abrogates sovereign immunity or only when one's fundamental rights are violated; ruled for the plaintiff.
Public school systems have an obligation to implement an emergency evacuation plan for students with disabilities. Moreover, state and local governments cannot shift their liability under the ADA to other entities. In Feltenstein v. City School District of New Rochelle, the plaintiff brought suit because the school district failed to implement an evacuation plan for the plaintiff. The plaintiff, who uses a wheelchair, was stranded on the third floor of the school during an emergency evacuation. Other students with disabilities and she remained on the third floor because the elevators shut down after the fire alarm was triggered.
After the plaintiff brought suit, the defendant school district sought indemnification and contribution from a third party defendant, the fire department. The Court ruled against the defendant ruling that neither federal nor state common law provides a right to indemnity under the ADA. The Court reasoned that allowing indemnification would frustrate the purpose of the ADA because it would contravene Congress' intent to hold accountable all who actually violate the terms of the statute.
Title II does not apply to private entities that contract with the state, no matter how pervasive the relationship. For example in Sherkat v. New England Village, the plaintiff brought suit when the defendants refused to admit the plaintiff's ward, Shahram, into a facility run by New England Village. New England Village is a corporate provider of residential and community based services for people with intellectual disabilities that contracts with the Massachusetts Department of Developmental Services. The plaintiff alleged a Title II violation arguing that New England Village is an "instrumentality" of the state. The Massachusetts DDS budget for corporate operated group homes is more than four times the budget for state run homes, and officials from such group homes "maintain close, regular, and pervasive contact with DDS officials." New England Village receives more than ninety-two percent of its revenue from Massachusetts through DDS.
The Court sided against the plaintiff and granted the defendant's motion to dismiss. The Court ruled that New England Village is a contractor and not a creature of the state; despite the close relationship the two share.
Title III of the ADA contains an exemption for religious organizations. In Sloan v. Community Christian Day School, the plaintiffs brought suit because the defendant's school did not have any accessible parking. The defendant moved to dismiss for lack of jurisdiction, claiming the religious organization exemption of Title III of the ADA. The Court, after weighing the characteristics of the school, found that the religious organization exemption did not apply. The school is not owned, affiliated with, or financially supported by any recognized religious group. The two owners are not ordained by any ministry, and the defendant has not claimed or been given tax exempt status.
Medical providers have a responsibility to communicate effectively with patients, family members, and other visitors who are deaf or have hearing loss. In Alexander v. Kujok, the plaintiffs, who are deaf, brought suit against a group of doctors for failing to provide ASL interpreters for a number of medical appointments. The plaintiffs sought injunctive relief which requires a showing of a "significant possibility of future harm." The defendants claimed plaintiffs lack standing to assert injunctive relief under the ADA because they cannot show any likelihood of ever returning for further care to the physicians who allegedly failed to accommodate their disability, and consequently cannot qualify for an injunction curbing further harm.
The Court ruled against the defendants noting that under the ADA a plaintiff need not engage in the "futile gesture" of attempting to return to a physician if the plaintiff already knows that reasonable accommodations will not be provided. In other words, the plaintiffs are not required to resort to the futile act of attempting to return to the same physicians who had already refused to facilitate effective communication on their part.
Private entities ought to ensure that their staff are trained to comply with the ADA. In Dicarlo v. Walgreens Boot Alliance, a plaintiff who is blind alleged the defendant's drug stores contain soda machines that are inaccessible to the blind. When the plaintiff visited the drug store, he requested assistance with obtaining soda from the machine; however he was only directed to the location where the machine was situated inside the store, and was not given assistance to choose and dispense the soda. He argued that the ADA requires installation of technology allowing him to use the machine independently, or alternatively the assistance of a qualified Walgreens employee.
While the Court noted that Walgreens is required to effectively communicate with the plaintiff, so he can use the soda machine; the ADA, however, does not regulate individuals conduct so as to ensure that they will never be rude or insensitive to persons with disabilities. The Court granted the defendant's motion to dismiss, holding one isolated incident does not lead to the inference that Walgreens fails to train its employees to provide effective auxiliary aids and services.
Welcome to the Spring 2016 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
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Southwest ADA Center
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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