The Americans with Disabilities Act was signed 19 years ago this July. In our annual roundup, we look for signs of progress over the past year.
‘Disability’ gets a makeover in new ADA Amendment Act
On Jan. 1, the Americans with Disabilities Act Amendments Act of 2008 went into effect. The Act promises improvements in employment-related ADA protections, bringing the landmark disability civil rights legislation back into line with the original intentions of its creators 19 years ago.
As of this writing, regulations for the amendments haven’t been fully spelled out, and court interpretations are yet to be written. But several important observations can be made.
Up until Jan. 1, the courts (including the U.S. Supreme Court) interpreted the term “disability” so narrowly that many people, including those with significant disabilities, were denied ADA employment protections. One of the most important effects of the Amendments Act is that the focus now will be on whether job discrimination against a person occurred — not on the question of whether that person is disabled.
The basic definition of “disability” hasn’t changed, but the meanings of some of the words in the ADA’s definition have, such as in the part that defines disability as a condition that “substantially limits one or more major life activities of an individual.”
Under the Amendment Act, the meaning of “substantially limits” has been relaxed so more people meet the standard, and the meaning of “major life activities” has been expanded.
Previously, “major life activities” included such things as speaking, reading, working, caring for oneself, standing and thinking. The courts often disallowed medical conditions (heart disease, sleep disorders, diabetes) that affected primarily internal functions.
Now “major life activities” are considered to include major bodily functions such as bowel and bladder functions, and the neurological, respiratory and circulatory systems.
This change in definition impacts cases such as that of Larry Rohr, an employee of Salt River Project (SRP, a large Arizona power and water utility company). Rohr sued SRP in 2004, contending he had been pushed out of his job of 23 years when he asked for job assignment exemptions to accommodate treatment of his type 2 diabetes. In 2006, a lower court dismissed his claim, regarding his diabetes as a disease rather than a disability.
But in February a federal court sided with Rohr — diabetes is a disability.
Wrote the judges, “Diabetes is a physical impairment because it affects the digestive …. systems, and eating is a major life activity.”
Another change wrought by the ADA Amendment Act: “Mitigating measures” no longer will be considered in employment discrimination cases. In the past, people with disabilities might not have been considered disabled by the courts if they used something that mitigated (lessened) their symptoms and/or facilitated their performance on the job, such as seizure medication, a mobility device or hearing aids.
Now, the only measures that still will be considered as “mitigating” a disability (meaning the person will not be considered as disabled) are eyeglasses or contact lenses.
Win some, lose some
A roundup of ADA court cases, enforcement actions and mediations over the past year reveals a mix of success, failure and uncertain outcomes.
Florida pays $1.4 million penalty for voting violations
The United States District Court in Florida sided with the American Association of People with Disabilities, which contended that the polls in Jacksonville failed to provide accessible voting equipment.
The court held that the ADA does indeed apply to voting, and its decision, including a $1.4 million award to plaintiffs, was upheld by the Circuit Court of Appeals.
Retirement home restricts power chairs
In November, the U.S. Department of Justice (DOJ) filed suit in federal court against owners and managers of Rathbone Retirement Community in Evansville, Ind., alleging it discriminated against its residents by prohibiting their use of power wheelchairs and scooters in their apartments and in the common dining room.
DOJ wants Rathbone to cease discrimination of this type, to pay monetary damages to residents harmed by the policy and to pay a civil penalty to the government. DOJ got involved in the situation when two people filed discrimination complaints with the U.S. Department of Housing and Urban Development (HUD). HUD investigated, then turned the case over to DOJ for follow-up. The outcome is pending.
Theaters exempt from some ADA rebuilds
AMC Entertainment, and probably other theater owners, got a break from the 9th U.S. Circuit Court of Appeals in December. AMC, which operates more than 100 indoor theaters around the country, had been sued by the U.S. Department of Justice, which said AMC had to retrofit many of its theaters so movie-going wheelchair users would have the same viewing angles of the screen as other patrons.
DOJ based its suit on standards of movie theater design that had been set in 1991. The appellate court overruled the lower court, however, saying federal regulations did not, until 1998, make it clear that not only obstructions to viewing, but also viewing angles had to be considered for disabled movie patrons.
Since the regulations were not clear, the court ruled AMC couldn’t be held accountable for not heeding them.
Care center excluded disabled child
A parent with a child who wears leg braces sought day care for the youngster at Push My Swing day care in Camden, S.C. The center accepted the family’s application and a $25 deposit check, but later denied the child admission because, it said, its insurance company would not cover her if she fell.
After DOJ got involved, the center officially denied it had discriminated against the family or violated any ADA regulations. However, in a subsequent settlement agreement, Push My Swing agreed, in part, to: not discriminate against any child on the basis of disability; not refuse to admit any child on the basis of disability (unless the child poses a “direct threat”); and not to use insurance coverage or lack thereof to justify exclusion of individuals with disabilities.
The center further agreed to maintain records at its offices of all admission inquiries on behalf of children with disabilities and the disposition of such inquiries for a period of three years following the inquiry.
College campus management company opts for accessibility
DOJ asserted that Education Management Company (EDMC), headquartered in Pittsburgh, Pa., was in violation of ADA requirements at several college campuses EDMC operates in a multistate region. Violations of wheelchair accessibility requirements included doors and hallways that were too narrow; thresholds that were too high; excessively steep ramps; inaccessible restrooms; and drinking fountains with too-high spouts.
EDMC admitted no liability for the violations, but did reach a settlement agreement with DOJ. Its provisions included designating an ADA compliance officer; hiring an ADA consultant; and coming up with accessibility plans of action. The company is required, by Oct. 1, 2009, to ensure that its campus facilities are fully accessible to people with disabilities in all the violations areas described above. EDMC also must ensure access to parking and public telephones, and accessible seating in classrooms and auditoriums.
Retaliation against spouse doesn’t fly
A husband and wife both worked for the Colorado Springs, Colo., police department when she filed an ADA claim against the city. The husband, Lance Lazoff, participated in the claim and assisted her. For his involvement, Lazoff said the department retaliated against him by denying him a promotion to sergeant. The EEOC (Equal Opportunity Employment Commission) investigated the matter, found that Lazoff’s claims of retaliation were justified, and referred the case to DOJ after efforts at conciliation between the two parties proved fruitless.
Noting that the ADA specifically prohibits retaliation of the sort Lazoff experienced, DOJ worked out a consent decree with the city of Colorado Springs that included: Lazoff’s promotion to sergeant at the earliest opportunity; retroactive seniority to sergeant extending back about four years; retroactive back pay to June 2008; payment of $35,000 to Lazoff if he dropped his claims against the city; and retroactive contributions to Lazoff’s pension account. The city, for its part, denied it had violated ADA regulations.
The bad news: Accessibility violations usually aren’t fixed until somebody complains about them. The good news: Nearly 80 percent of these complaints are resolved through free, DOJ-sponsored mediation, in which the complainant and respondent sit down and work out a mutually agreeable solution with a neutral mediator.
Following are examples of successful mediation cases over the past year:
After a man with a mobility impairment complained that a Massachusetts country club was inaccessible, the club installed accessible parking, outside lighting, a lift at the entrance and an accessible bathroom.
A wheelchair user complained that a Texas gym didn’t have accessible parking, exercise equipment or restrooms. Following mediation, the gym installed a van-accessible parking space, remodeled restrooms and added a hand-operated exercise bike.
A California youth sports organization refused to modify its policy requiring every parent to volunteer at the snack bar during the season. After a disabled parent complained and mediation occurred, the organization agreed parents could volunteer for other supportive tasks, such as answering phones.
Architectural and Transportation Barriers Compliance Board.
Disability and Business Technical Assistance Center.
Equal Employment Opportunity Commission.
Georgetown University Law Center.
U.S. Department of Justice Office on the Americans with Disabilities Act.