Blog Rest

To prepare for two oral arguments I'm doing the week after next, I'm taking a bit of a rest from blogging. I'll be back on Sept. 25!

Basas on Reasonable Accommodation and Resistance

Up on SSRN: Carrie Griffin Basas, Back Rooms, Board Rooms -- Reasonable Accommodation and Resistance Under the ADA, 29 Berkeley J. Emp. & Lab. L. 59 (2008). The abstract:

Reasonable accommodations under the Americans with Disabilities Act (ADA) are at the center of the integration of people with disabilities into mainstream work environments. Responses on the part of employers, however, have couched many feasible accommodations as excessive, burdensome, and costly. Employers resist hiring people with disabilities and accommodating existing disabled employees. This position is affirmed by societal and legal messages about the inferiority of disabled workers. Courts have tended to take a pro-employer point of view, deciding that some accommodations are unreasonable without specifically unpacking that concept in relation to the language and spirit of the ADA. Meanwhile, one of the most important parts of the ADA remains largely undefined and employers and courts can take cover behind a vague notion of reasonableness whenever any request seems like too much. While scholars have debated whether or not the ADA goes too far in requiring employers to adapt to the needs of disabled individuals, the latter are cast aside in the reasonable accommodation process by employers, courts, and scholars themselves. As a result of this exclusion, people with disabilities struggle to get even the most basic and achievable accommodations granted, such as those related to transportation and assistance with arriving at work. This Article advocates for the involvement of people with disabilities in the accommodation process, not only from a place of cooperation but also in the form of resistance to subjugation. This participation must happen at all levels for any meaningful change to happen in the American workforce. The realization of it depends not on the generosity of employers, jurists, or scholars, but on people with disabilities' active confrontation of unjust and irrational interpretations of the ADA. Relying on disability studies approaches and a social model of disability, the author places prospective and current workers with disabilities at the center of the reasonable accommodation process. She suggests that those models can go even farther - and be replaced by a resistance model - to recognize and respond to the biases and prejudices about people with disabilities that lead to their marginalization at work and in communities.

NFB and Target Settle Web Accessibility Case

Dan Goldstein passes along this press release:

Baltimore, Maryland (August 27, 2008): The National Federation of the Blind (NFB) and Target (NYSE: TGT) announced today that they have settled a class action lawsuit regarding access to the Target.com Web site by blind people.

Dr. Marc Maurer, President of the National Federation of the Blind, said: “Access to Web sites is critical to the full and equal participation of blind people in all aspects of modern life. The National Federation of the Blind is pleased to have reached a settlement with Target that is good for all blind consumers, and we recognize that Target has already taken action to make certain that its Web site is accessible to everyone. We look forward to working with Target in the coming months to help make additional improvements that will enhance the experience of blind visitors to Target.com. It is our sincere hope that other businesses providing goods and services over the Internet will follow Target’s example and take affirmative steps to provide full access to their Web sites by blind consumers.”

Bruce Sexton, Jr., a named plaintiff in the case from the beginning, added: "This settlement marks a new chapter in making Web sites accessible to the blind. I commend Target for committing to being a leader in online accessibility." Steve Eastman, president of Target.com, said: “First and foremost, Target is committed to
serving all our guests. As our online business has evolved, we have made significant enhancements in order to provide an accessible shopping experience. We are pleased to have reached an agreement with the National Federation of the Blind regarding the accessibility of Target.com for individuals who use assistive technologies and will work with the NFB on further refinements to our Web site.”

As part of the settlement, Target will establish a $6 million fund from which members of the California settlement class can make claims. In addition, the National Federation of the Blind will certify the Target Web site through its Nonvisual Accessibility Web Certification program once agreed upon improvements are completed in early 2009. Target and NFB have agreed to a three-year relationship during which NFB will perform accessibility testing of the Target Web site. For more
information about the terms of the settlement, please visit http://www.nfbtargetlawsuit.com/.

Congrats!

The Dream Team Reviews Weber's Disability Harassment

No, not these guys. Michael Waterstone and Michael Stein just published their essay, Disabling Prejudice, in the Northwestern University Law Review. It's a review of Mark Weber's great book, Disability Harassment. Grab it while it's hot!

Good Third Circuit Statute of Limitations Decision

Back in version 1.0 of this blog, I posted on the district court's decision in Disabled in Action v. Southeastern Pa. Transportation Authority, which had held (erroneously in my view) that the statute of limitations for challenging inaccessible transit station renovations under the ADA begins when the plaintiffs know that the renovations are going to be inaccessible, rather than on the (later) date when renovations are completed. Well, the Third Circuit yesterday issued its ruling on the plaintiffs' appeal from that decision, and it reversed the district court. Yay!

Conflict Over Deinstitutionalization Litigation in Massachusetts

See this article from yesterday's Boston Globe. It begins:

Options are running out for parents of 31 profoundly mentally retarded residents of a skilled nursing home in Groton trying to reverse the state's plans to move them to small group homes.

After failing to make headway at a recent meeting with top state officials, the parents are now trying to enlist state lawmakers and the courts to make the case that their children might suffer life-threatening medical setbacks in the new environment.

"I think it's a gross human rights violation," said Louis Putterman, of Concord, a professor at Brown University whose 33-year-old daughter - who is blind, unable to talk or walk, and fed through a tube - currently resides at the Seven Hills Pediatric Center in Groton, which serves residents with a mental age of less than one year.

State officials have said they are bound by a June settlement agreement in a lawsuit filed in 1998 in US District Court in Springfield on behalf of Loretta Rolland and others statewide with mental retardation or other developmental disabilities. The settlement requires the state to transfer a quota of 640 of the nursing home residents to group homes by 2012. The transfers also figure in a $20 million initiative by Governor Deval Patrick, called Community First, to provide community homes to more than 30,000 disabled and elderly.

"The case focused on hundreds of people . . . who had no choice but to live in nursing facilities," said Jennifer Kritz, spokeswoman for the state Executive Office of Human Services. "The case required the state to develop community living options, and many people have already successfully moved into the community."

Kritz said the settlement has been widely applauded, including by ARC, the Association of Developmental Disabilities Providers, and parents of other individuals named in the case. To comply with the settlement quota, state officials drew up a list of the 640 individuals to be moved.

Obama May Have Edge with Disabled

See this article by that title in Politico.

Davis on Tropic Thunder

Lennard Davis, a leading figure in disability studies, has this op-ed on Tropic Thunder in the Chicago Tribune.

Weber on IDEA Eligibility

New on SSRN: Mark Weber, The IDEA Eligibility Mess. The abstract:

The Individuals with Disabilities Education Act (IDEA) guarantees students with disabilities a free public education appropriate to their needs, but students must meet the definition of "child with a disability" to be eligible for that entitlement. The law governing special education eligibility, however, is charitably characterized as a mess.

There are several sources of the current eligibility confusion. First, recent court cases have reached conflicting conclusions about how much adverse educational impact the child's disabling condition must have, what constitutes a sufficient need for special education, and when children with emotional disabilities are eligible. Second, long-established methods for assessing learning disabilities have withered under criticism from educational experts, and a new method of approaching learning disabilities, response-to-intervention, is being touted by the United States Department of Education. Nevertheless, that innovation remains largely unproven and may be impossible to implement at scale. Third, Congress and others have focused long-overdue attention on the disproportionate percentage of African-Americans who are found eligible for special education under the disability categories of mental retardation and emotional disturbance, but neither Congress nor anyone else appears to have a promising idea about how to address the situation.

This Article analyzes and critiques the recent cases, describes and comments on the new learning disability assessment methodology, and evaluates competing ideas about how to respond to ethnic disproportion. It concludes that the solution to the entire set of problems is not a redefinition of special education eligibility under IDEA, but rather a renewed attention to the actual terms of the statute and the goal of full educational opportunity. This step will promote what might be called "not-quite-so-special education," that is, an entitlement for a broad class of children to high quality special
education supports provided in the regular educational environment.

Waddington on Accessibility in the EU

New on SSRN: Lisa Waddington, The Internal Market and Disability Accessibility: Using EC Law to Establish an Internal Market in Disability Accessible Goods and Services. The abstract:

In order to access and benefit from goods and services, individuals with a disability have a variety of specific needs, ranging from accessible written information, to standard products and services which have disability accessibility features built into them. In light thereof, this article focuses on the impact which the internal market has had, and could potentially have, on ensuring an EU wide market in products and services which are accessible to consumers with a disability. The central question examined is, do the rules relating to free movement of goods and services and Community wide harmonisation measures allow for, or discourage, the establishment of mandatory disability accessibility standards at the national or EU level, and have they been used to permit or establish such standards to date?

Kohn on Voting Rights in Long-Term Care Institutions

New on SSRN: Nina A. Kohn, Preserving Voting Rights in Long-Term Care Institutions: Facilitating Resident Voting While Maintaining Election Integrity (McGeorge L. Rev., 2007). The abstract:

An individual's status as a resident of a long-term care facility has the potential to significantly limit his or her ability to vote. While the high rates of dementia among residents of long-term care facilities may lead some to conclude that such limitations are for the best, this article argues that individuals' access to the ballot and to assistance with ballot completion should not be limited by their institutional status. Specifically, it argues that long-term care facilities should be neither required nor permitted to play a "gate-keeping" role in the electoral process by screening residents for mental capacity to vote before permitting or facilitating access to the ballot. Nor, it argues, should electoral officials single out long-term care residents for such capacity testing. Rather, the article concludes that both states and long-term care facilities should consider themselves to have an affirmative duty to facilitate long-term care residents' participation in the electoral process. If policymakers are sufficiently concerned that excessively demented long-term care residents are voting, a phenomenon of which there is little evidence, they should create fair processes for disenfranchising voters that apply equally across residential settings.

Harris & Stein on Workplace Disabilities

New on SSRN: Seth D. Harris & Michael Stein, Workplace Disabilities, in Labor and Employment Law and Economics (Kenneth Dau-Schmidt et al., eds, 2008). The abstract:

The key United States law regulating employment discrimination against employees with disabilities is the Americans with Disabilities Act (ADA). Title I of the ADA prohibits employment discrimination against any 'qualified individual with a disability'. This proscription includes traditional prohibitions of 'disparate treatment' and 'disparate impact'. Another form of employment discrimination prohibited by the ADA is the failure to provide a 'reasonable' workplace 'accommodation' to a qualified individual with a disability. The statute defines those individuals as workers who are capable of performing the essential job functions of the respective positions sought, either with or without provision of reasonable accommodations. Because reasonable accommodations are the focus of scholarly and political debate over the ADA, while also being the main innovation in disability employment discrimination worldwide, this chapter focuses on accommodations.

Although the ADA is a United States statute, it has had considerable influence on disability-related employment laws internationally. This is true for systemic national laws such as the United Kingdom's Disability Discrimination Act that are closely modeled on the ADA as well as for international acts that borrow specific concepts from the ADA (Stein and Stein 2007). Notably, the ADA's reasonable accommodation mandate has been adopted by the United Nations

Yep. That's how it ends.

Patricia Bauer on Tropic Thunder

Patricia Bauer has this very good op-ed in the Washington Post on the Tropic Thunder controversy that does a great job of putting the controversy in context. As I haven't yet seen the movie, I can't say whether I agree or not with Bauer's bottom line -- despite my earlier comments decrying the seemingly bias-driven statements by the movie's co-writer, a lot that I've heard (including a lot in Bauer's column) suggests that the use of the R-word in the movie might well just be a particularly raw (and effective?) way of attacking some stereotypes that Hollywood brings to the issue of disability. But whatever one thinks of the film itself, the conversation it has sparked is really important.

Tropic Thunder

I haven't posted anything about this whole Tropic Thunder boycott business, mainly because I have a soft spot for Howard Stern and Sarah Silverman (not to mention Ben Stiller, who my wife can't stand) and (thus) tend to find the question of offensive humor to be much more complex than either those who are outraged by that humor or those who are outraged at "political correctness" seem to think. Also, I don't particularly like boycotts of expression, and I don't think it's possible to debate the merits of a movie I haven't seen. But I find this defense, from one of the co-writers of the film, quite outrageous myself:

"Some people have taken this as making fun of handicapped people, but we're really trying to make fun of the actors who use this material as fodder for acclaim," co-writer Etan Cohen echoed to MTV. "The last thing you want is for people to think you're making fun of the victims in this who are having their lives turned into fodder for people to win Oscars."

The joke, then, is really on people like Dustin Hoffman ("Rain Man"), Sean Penn, ("I Am Sam") and Tom Hanks ("Forrest Gump"), actors who do more harm than good by denying the painful realities of the illness and instead paint their characters as too sunny or bright, Cohen said.

"Movies about the mentally retarded is something we talked about for a long time. My grandfather was adopted by a mentally retarded man, a man who shouldn't have been allowed to adopt a kid," Cohen revealed. "When he saw 'Forrest Gump,' you ever saw a guy angrier than him. It was not such a picnic to be raised by that guy."

I mean, sheesh! This certainly seems to suggest that the motivation is just pure bias. I'm sorry about Mr. Cohen's great-grandfather, but seriously, do you think it was political correctness, or too many Tom Hanks movies, that led the authorities to let him adopt Mr. Cohen's grandfather? Was Tom Hanks even born yet? There are good adoptive parents and there are crappy adoptive parents, and that's true of people with and without disabilities. Basically, Mr. Cohen seems to be saying that he used this film as a chance to get back at his great-grandfather and all of those other people with disabilities who were unjustly portrayed so positively by Messrs. Hoffman, Penn, and Hanks, when really, you know, they should have been institutionalized. Or, more charitably, he wanted to show the "other side" -- that it really sucks to have a disability, though Hollywood tries to paper it over. I guess he never saw Million Dollar Baby.

Employees with Disabilities Allege Bias at SSA

See this article by that title. It begins:

Barbara Penny, a former supervisor at the Social Security Administration, says employees with disabilities at the agency are passed over for training and are viewed as a costly burden because they often require special accommodations, such as interpreters or electronic readers. As a result, they aren’t promoted as often as other employees.

In at least one instance, Penny, who lives in Auburn, Wash., said she and other members of a panel charged with reviewing top candidates for a job opening at the agency were provided details on each candidate’s race, gender and disabilities — factors that shouldn’t be considered in personnel decisions. The list was shredded after the selection panel made its decision, she said.

“There is no doubt in my mind that disability was a factor in decision-making because it was more convenient for SSA not to pick the disabled person who needed an expensive accommodation,” she said. Penny’s account is laid out in a new discrimination complaint that charges Social Security with systemic discrimination against employees with disabilities. More than 40 current and former employees who say they were denied promotions at the agency have provided statements in support of the complaint, which was filed June 27 before the Equal Employment Opportunity Commission.

If these allegations are true, this is outrageous.

The Freep on Inaccessibility in Public Accommodations

Retelling a story that needs to be retold, here. It begins:

There was plenty of room for Erica Nader's wheelchair at the Woodward Avenue Salon in Ferndale: The doorways met regulation and were 32 inches wide, and there were support rails in the spacious bathroom.

But with a 6-inch step at the entrance, she couldn't get in.

Eighteen years after the Americans with Disabilities Act was passed, barriers still exist in making businesses accessible to people with disabilities. The 1990 civil rights legislation prohibits discrimination in employment practices and public services.

"There are still plenty of problems out there," said William Milzarski, a rights representative for the Michigan Commission on Disability Concerns. "Whenever I come across a business that has a step or two to get in, the owner usually says, 'No one in a wheelchair ever shops here.'

"I think it's pretty obvious why they don't."

Juvenile Justice and Youth with Disabilities

See this post by that title on EdWeek's Special Education Blog.

Interesting Ugandan Perspective on Disability Rights

See this article, which tees off on the Oscar Pistorius affair to discuss disability rights more broadly.

Two Good ADA Title III Cases from the Ninth Circuit

Yesterday, the Ninth Circuit issued opinions in two cases that were brought under the ADA's public accommodations title. One, D'Lil v. Best Western Encina Lodge & Suites, involved a question of standing. The plaintiff, Hollynn D'Lil, was visiting Santa Barbara on business and tried to stay at, among other hotels, the Best Western. She found lots of barriers to access and sued under the ADA and state law. The parties entered into a consent decree, in which the hotel agreed to remove the barriers. The decree left open the question of attorneys' fees, however. When D'Lil filed a motion for attorneys' fees, the district court, sua sponte, raised the question whether D'Lil had standing to sue in the first place. The court ultimately concluded that, because she had no concrete plans to return to the specific Best Western she sued again -- and because her pattern of filing lots of ADA accessibility suits cast doubt on the credibility of her assertion taht she did plan to return -- she had no standing to bring the suit.

The Ninth Circuit, in an opinion by one of the best judges in America, Judge Reinhardt, reversed. The court explained:

D'Lil's intent to return to the Santa Barbara area is evidenced by the regularity with which she visited the city before, during, and after her stay at the Best Western Encina. By her declaration, and her testimony at the evidentiary hearing, D'Lil demonstrated that she has been visiting the Santa Barbara area since the early 1980s for both business and pleasure. From 1993 to 2000, she visited approximately 1-3 times per year in connection with her work for the state Department of Rehabilitation. In 2001, the year that D'Lil stayed at the Best Western Encina, she took three trips to Santa Barbara to visit her friends the Marshes, to vacation with her children, and to perform work for attorney Singleton. In the three years between her visit to the Best Western Encina and the filing of her declaration in the case, D'Lil returned to Santa Barbara four times to conduct business inspections and to visit the Marshes. At the evidentiary hearing, D'Lil testified to three upcoming trips that she was planning to the Santa Barbara area, including a vacation to visit the Marshes,
an evidentiary hearing for another trial, and a prospective work trip to Carpinteria.

D'Lil's desire to stay at the Best Western Encina on future trips to Santa Barbara if it were made accessible is also well supported by the evidence that she submitted at each successive stage of the litigation. In her complaint, D'Lil stated that she “would like to return and use the subject Best Western Encina on a spontaneous, but full and equal basis” but that she “is prevented from doing so by defendants' failure and refusal to provide disabled persons ... with ‘full and equal access' [to its] facilities.” In opposing defendants' motion for summary judgment, D'Lil submitted a declaration again reiterating that she “definitely plan[s] on staying at the [Best Western Encina] when it is made accessible.” In that declaration, she explained that her preference
for staying at the Best Western Encina during future trips to Santa Barbara was based on the hotel's proximity to downtown, its accessibility from the freeway, and its amenities, including lush gardening and fresh country linen quilts. At the close of her declaration, she summarized her preference for the Best Western Encina as follows: “It is a nice facility and fits with my needs with regards to taste, style, price and location.... If made accessible, I would definitely choose it again during my visits to Santa Barbara.” At the evidentiary hearing, D'Lil, consistent with her declaration, testified that she had a desire to stay at the Best Western Encina because “it's the kind of hotel that I would like to stay at. It's simple, and you park close to your room, and it has a place to eat so I don't have to get in the car and drive somewhere else to go eat. .... It meets the configuration of the kind of hotel I like to stay at. It's also less
expensive than some of the other hotels.”

And the court rejected the suggestion that D'Lil's filing of many other accessibility suits against other hotels made her allegations of intent to return incredible. Citing, among other things, a great article someone wrote, the court stated that "we must be particularly cautious about affirming credibility determinations that rely on a plaintiff's past ADA litigation." And the court concluded that her past suits did not undermine her credibility:

Here, the district court relied on D'Lil's prior ADA suits to question the sincerity of her intent to return to the Best Western Encina. The court noted that D'Lil had not returned to six hotels that she sued during a 2002 trip to Redding, California and found it implausible that a plaintiff with approximately sixty prior ADA suits sincerely “intends to return to nearly every place she sues.” The record contains no evidence of whether those places had been made accessible, such that D'Lil could have safely returned if she so wished. Moreover, whether or not D'Lil visited the hotels in Redding says little about her intent to visit the Best Western Encina, considering that D'Lil identified specific reasons-including the presence of the Marshes and expected future work in Solvang-for returning to Santa Barbara. The district court's speculation about the plausibility of D'Lil's intent to return to each place of public accommodation that she sued is further undermined by evidence of D'Lil's extensive and frequent travel throughout the state, buttressing her claim that
she would again have occasion to patronize the establishments she sued if they were made accessible.

Judge Rymer dissented.

In the other case, Jankey v. Poop Deck, the court addressed an attorneys' fees question. The plaintiff, Les Jankey, challenged various barriers to access at the defendant restaurant, the parties entered into a settlement in which the defendant agreed to remove some barriers, and Jankey moved for attorneys' fees. The district court recognized that the plaintiff was the prevailing party, but it refused to award attorneys' fees. The court explained that an award of attorneys' fees would be "unjust" because:

Here plaintiff has failed to provide prelitigation notice and has unreasonably protracted litigation by waiting nearly five months to reply to defendants' proposal remedy of the A.D.A. violation. Mr. Frankovich and his firm's abusive litigation tactics have been well documented. The purpose of the A.D.A. is to ensure accessibility to public accommodations for disabled individuals, not to enrich attorneys.

The Ninth Circuit reversed. In an opinion by Judge Graber, the court held that a district court may not refuse to award attorneys' fees in an ADA public accommodations case based on the plaintiff's failure to give presuit notice to the defendant:

Denying attorney fees altogether as “unjust” because of a lack of prelitigation notice would constitute, in essence, a sanction for failing to provide notice. But as we held in Skaff, the ADA does not require prelitigation notice. Litigants and their lawyers should not be penalized for failing to meet a purported technical requirement that does not exist. And failing to provide prelitigation notice cannot, by itself, be considered harrassing or improper because the ADA permits the conduct. Nor does it matter whether the district court considers the lack of notice in conjunction with other adverse considerations. If the other conduct is sufficient to render a fee award unjust, then the lack of prelitigation notice need not be considered; if the other conduct is not sufficient, then the lack of prelitigation notice would be, in the end, what justifies denying fees, in contravention of Skaff.

We therefore hold that a district court may not use a lack of prelitigation notice as a factor in determining whether to deny as unjust a request for attorney fees under the ADA. Here, the district court erred when it used Plaintiff's failure to provide prelitigation notice as a factor to deny him attorney fees as a prevailing plaintiff.

The court of appeals also explained that while unduly prolonging the litigation may be a basis for reducing the attorneys' fees awarded to a prevailing plaintiff, they are not a basis for denying fees altogether. And the court concluded that Jankey's lack of prelitigation notice did not prolong the litigation: "Defendant did not initiate settlement discussions until seven months after the lawsuit was filed, and there is no reason to believe Defendant would have responded any more quickly once the complaint was filed had there been notice first." But the court concluded that some of the conduct of Jankey's counsel after the filing of the litigation -- dithering on a settlement proposal by the defendant -- might have unduly prolonged the litigation. It remanded to the district court for a determination of whether the fee award should be reduced for that conduct.

All in all, two very good opinions.

We Can't Ignore the AIDS Plight of the Disabled

See this op-ed by that title in the Toronto Globe and Mail.

McCain Should Show More Courage on Disabilities

See this article by that title in the Detroit Free Press.