Recently in Disabled Rights Category

But won't California lawmakers have to consider an exception for emotional support animals? (Steve Geissinger, San Jose Mercury News, May 6)(more).

This website is mentioned in an article on allergies and chemical sensitivities in the workplace, specifically on the case of Susan McBride, who's suing her employer, the city of Detroit, for not preventing a co-worker from wearing perfume to the office (see Jul. 6 and Jul. 18, 2007; earlier Detroit case, May 25, 2005). (Lisa Belkin, "Sickened by the Office (Really)", May 1).

Updating our Jan. 18, 2007 post: "Connecticut's Commission on Human Rights and Opportunities says that the city of Stamford violated anti-discrimination law because they wouldn't give extra time on a promotion exam to David Lenotti. Lenotti is a fire lieutenant with attention deficit disorder." [Excerpting coverage in the Apr. 15 Stamford Advocate*]:

The city defended the denial by claiming a fire captain, the position Lenotti sought, must be able to read and process information quickly at a fire scene. But state officials said the city never proved that was true, never consulted with disability rights experts and does not use a promotional test that actually measures how fast a candidate can read.

(Dave Statter, Apr. 20; Created Things, Apr. 16; decision in PDF format). More: Daniel Schwartz has more analysis (May 3): if you want a fire captain to be able to read quickly at emergency scene, gotta spell that out explicitly in the job description.
*An odd aspect of the Stamford Advocate article, preserved on GoogleCache: it quotes disability consultant Suzanne Kitchen making the very same comment, word for word, that we criticized her for making more than a year ago. Does Ms. Kitchen really repeat herself so precisely?

Marc Edelman, guest posting at Above the Law (Apr. 24):

For an example of one of the more extreme disability claims, in Badgett v. Alabama High School Athletic Association, 2007 WL 2461928 (N.D. Ala. 2007), the parents of a wheelchair-bound student with cerebral palsy, Mallerie Badgett, brought a claim arguing that wheelchair-bound students should be allowed to compete for team points against able-bodied students running in a track race on foot. According to the complaint, "Miss Badgett [was] concerned that competing in a separate wheelchair division [would] affect her ability to receive college scholarships and other benefits." The Northern District of Alabama ultimately, and wisely, denied Badgett's request for a preliminary injunction.

Edelman also discusses the better-known controversy in which the Lausanne-based Court of Arbitration for Sport will consider (presumably not applying U.S. law) the appeal of double-amputee sprinter Oscar Pistorius who will be arguing that his prosthetic legs do not in fact provide an edge over real legs.

It looks as if, barring intervention by the U.S. Supreme Court, serial ADA litigant Jarek Molski and his lawyer Thomas Frankovich, longtime Overlawyered favorites both, won't be filing any more accessibility lawsuits in California's populous Central District. The Ninth Circuit's decision not to disturb an order to that effect by the late Judge Edward Rafeedie, however, came by a surprisingly narrow margin, with nine judges dissenting. Among them, Judge Marsha Berzon said Rafeedie should not have acted unilaterally to bar the two from suing throughout the district, while Alex Kozinski went so far as to maintain that Rafeedie had failed to offer evidence in suggesting "that Molski is a liar and a bit of a thief". The majority of judges, however -- and the Ninth is among the last circuits anyone would accuse of an excessive wish to shut down litigation -- disagreed. (Dan Levine, "9th Circuit Judges Blast Order Barring ADA Lawyer", The Recorder, Apr. 9). One final bit from the account in the Recorder might cause the reader's jaw to drop open, as it did mine:

Rafeedie died of cancer late last month, but Frankovich still holds a grudge.

"What he did is morally reprehensible," the attorney said Monday. "Acting morally reprehensible creates bad karma, and sometimes you have to pay the piper for bad karma."

In other news of vexatious California litigants:

For years, self-described public-interest litigator Burton Wolfe has bragged that he was one of the few people to get off the state's so-called vexatious litigant list for self-represented plaintiffs who file frivolous lawsuits. Those who are put on the list can file "pro per," or do-it-yourself, lawsuits only with a judge's permission. But after enjoying a few years off the blacklist, the 75-year-old Wolfe has sued his way back onto the roster. ... [His name was restored to the list after] he sued the San Francisco Food Bank and America's Second Harvest for setting up what he calls a food "racket" in the privately owned low-income senior-housing Eastern Park Apartments where he lives.

(Lauren Smiley, "Vexatious Litigant Burton Wolfe Fighting Eviction After Threatening More Lawsuits", San Francisco Weekly, Feb. 20). Perhaps the most celebrated of modern San Francisco's vexatious litigants is Patricia A. McColm, who has been profiled in a number of news stories including Ken Garcia, "Woman who sues at drop of hat may get hers", San Francisco Chronicle, June 6, 2000, reprinted at Forensic Psychiatric Associates site. Incidentally, the British court system is thoughtful enough to post its list of vexatious litigants online, an obvious aid to persons who might find themselves the target of threatened suits by persons on the list. But although the California courts have a webpage discussing the fact of their having a list, I could find no sign that they had posted the list itself online. Have any U.S. states (or Canadian provinces, etc.) done so?

The British Columbia Human Rights Tribunal has ordered McDonald's to pay $55,000 for failing to do enough to accommodate an employee whose disabling skin condition prevented her from complying with the restaurant's hand-washing policy. Among other grounds for its decision, the tribunal cited the following:

There was no evidence of:

* the relationship between food contamination and hand-washing;...

(HRHeroBlogs/Northern Exposure, Apr. 15; Ezra Levant).

More: Commenter Bill Poser finds the decision "much more reasonable" than the reporting makes it sound and says, in particular, Northern Exposure cut off a relevant last word from its quote: "...hand-washing frequency".

"America has reached a point where almost half its population is described as being in some way mentally ill, and nearly a quarter of its citizens - 67.5 million - have taken antidepressants." The Diagnostic and Statistical Manual of Mental Disorders (latest edition, DSM-IV) is "invoked chapter and verse in schools, prisons, courts, and by mental-health professionals around the world." But how objective and reliable is its classification of disorders? (Christopher Lane, New York Sun, Mar. 26). More thoughts: Jane Genova.

Thus argues a lawsuit filed by James Bogden against four restaurants in Alexandria, Va., which "seeks to require the restaurants to become smoke-free, arguing that they must accommodate Bogden's disability, coronary artery disease, and eliminate secondhand smoke so he can eat at them. Each of the restaurants allows smoking in designated areas." (Jerry Markon, "Man With Heart Condition Wants Smoke-Free Eateries", Washington Post, Jan. 31).

Dubner and Levitt's three examples of unintended consequences (Jan. 20) include two that will be familiar to longtime readers of this site: the way the Americans with Disabilities Act can harm disabled persons by convincing service providers and employers that it could prove legally onerous to take them on as customers or employees; and the way environmental law can backfire to encourage landowners to take a chainsaw to habitats suitable for endangered species. More: Bruce MacEwen.

The Department of Justice regards online tutoring services as "public accommodations" subject to the Americans with Disabilities Act, and in September entered into a consent decree with Sylvan Learning Centers, which agreed to provide aids such as written materials and "videotext displays" (as well as free sign-language interpreters) for the assistance of deaf persons who might wish to use its services. As TechLaw Journal notes (Sept. 26-30), and as we have often noted before in our ongoing coverage, there is reason to expect the legal pressure for web accessibility to extend to online businesses more generally.

In the English countryside stiles and so-called kissing gates "have been a familiar feature of the landscape for centuries, but local authorities now believe that installing them along footpaths and rights of way is a breach of the Disability Discrimination Act 1995." ("Farms kiss goodbye to stiles and gates to allow wheelchair access", Times Online, Nov. 30). According to Wikipedia, some kissing gates are designed on a large enough scale that wheelchairs can pass through.

When you dial 911 from some new Verizon Wireless phones, it seems the phone itself emits an audible alarm. The telecom provider says it installed the feature to comply with federal law requiring that phone services be made "accessible and usable by individuals with disabilities". Unfortunately, it has a disconcerting effect on users like a nondisabled Austin, Texas woman who dialed 911 because she feared she was about to have a close encounter with vandals on a vacant property she owned. The FCC says it does not require specific ways of meeting the accessibility mandate and that other methods besides audible tones might be found. (Clara Tuma, "Verizon customer calls phone alarm 'dangerous'", KVUE, Nov. 9). Reader L.S. writes that the story reminds him of the "Neckbelts" article in The Onion. We noted some years ago that strobe-light-equipped fire alarms, being pressed on government standards-writers as a way to alert deaf persons to emergencies, might prove dangerous to persons with photosensitive epilepsy, many of whom risk being sent into seizures by brightly flashing lights.

"Three disabled people have sued Walt Disney World for not allowing them to use their Segways to move around its theme parks. ... Disney says it fears Segways could endanger other guests because they can go faster than 12 mph." (AP/Centre Daily Times (Pa.), Nov. 11). More: Washington Post, MagicalMountain.net. in Orlando Sentinel columnist Mike Thomas ("Note to Disney: Don't give up on Segway suit", Nov. 13) writes:

If a disabled person can get around just as well in a wheelchair as on a Segway, does Disney have the right to pick the wheelchair in the interest of guest safety?

One of the people suing Disney says she did not want her children seeing her rely on a wheelchair.

But to go that route means we expand the ADA to accommodate not only people's disabilities but also their feelings about their disabilities.

I feel for that woman, but this is a huge legal leap.

Make way for another creative application of the Americans with Disabilities Act: the office of Texas attorney general Greg Abbott says it could violate the ADA for the Texas Lottery Commission to permit sale of its lottery tickets in stores that allow smoking. "Lewisville resident Billy Williams complained to the commission in 2006 that he had an asthma attack after buying a ticket at a smoky store." Abbott's office found that the ADA requires that disabled residents be provided with "'meaningful access' to state services", in this case consisting of lottery tickets, and that smoking-allowed policies at participating retailers could impair such access. ("Smoking questioned for stores that sell lottery tickets", AP/Houston Chronicle, Nov. 9).

Power tools manufacturer Black & Decker Corp. rejected Victor Breehne for a ''highly wrist-sensitive job" at a Tennessee plant after medical tests suggested that Breehne was vulnerable to carpal-tunnel syndrome. Now he's suing, charging that the rejection violates the Americans with Disabilities Act:

The U.S. Equal Employment Opportunity Commission has challenged the use of such tests, which aren't uncommon in manufacturing settings, on ADA grounds. But it lost a federal lawsuit in 2001 against Rockwell Automation Inc. after that company denied jobs to 72 applicants at an Illinois plant.

(Allison Connolly, "B&D sued after it rescinds job offer", Baltimore Sun, Oct. 16; "Man sues after job offer rescinded over carpal tunnel test", Reliable Plant, Oct. 17). For the 2002 U.S. Supreme Court opinion in Echabazal v. Chevron, in which the Court (over vociferous protests from some disabled-rights advocates) unanimously ruled that an employer was not obliged to hire a disabled applicant who was at greater risk of injury and death than other workers, see Mar. 1-3, 2002 and links from there.

ZipCar and FlexCar are violating the Americans with Disabilities Act by not providing special hand controls for disabled drivers, according to a lawsuit which also names the District of Columbia as a defendant because it provides parking spaces to the popular car-sharing services. (Hank Silverberg, "Disabled Woman Files Lawsuit Against Car-Sharing Services", WTOP, Oct. 11).

I'll be on the BBC World Service today to discuss (more).

In a major victory for disabled-rights activists, federal judge Marilyn Hall Patel has ruled that the National Federation of the Blind can go to trial against the Target Corp. on charges that its online shopping website should be redesigned to make it easier for blind computer users to use. (Bloomberg, Reuters).

We've covered the Target suit Feb. 8 (with enormous reader discussion), Oct. 4 and Oct. 27 of last year. Existing federal court precedent, in the Southwest Airlines case, discourages the most far-reaching demands for web "accessibility"; the Target case, which is being heard before a judge who's considered relatively liberal, is important because disabled-rights activists hope to use it to counter and eventually reverse the Southwest precedent (see Jan. 8, 2004). For reasons why a victory by the activists might lead to unprecedented infringements on the freedom to conduct business or even publish online, see my May 2000 Reason column and my House testimony of earlier that year, and earlier posts on this site (& welcome Michelle Malkin readers).

In Rancho Cordova, Calif., a 50,000-square-foot kids' indoor sports complex has closed operations following a lawsuit over its lack of wheelchair access. A financial angel, however, has offered to donate a $35,000 lift for free, and Basketball Town's executive director is cautiously optimistic, saying there is a 50/50 hope that it might reopen. "The original lawsuit was filed by a Solano County man who is a quadriplegic. He says he was unable to attend his nephew's birthday party on the mezzanine floor last year. Since then, the building's owner and the tenants who run Basketball Town have clashed over who should pay for the retrofitting." Derrick Ross of Suisun City has "filed similar lawsuits against two Northern California businesses in the last two years over Americans with Disabilities Act compliance issues." (Stan Oklobdzija, "Sports complex to close", Sacramento Bee, Sept. 30; Dave Marquis, "Basketball Town's Future in the Air", Oct. 1; Chuck Shepherd's News of the Weird Daily).

Middle linebacker Odell Thurman of the Cincinnati Bengals and Tampa Bay Bucs cornerback Torrie Cox, both suspended for repeat violations of the National Football League's substance abuse policy, filed complaints with the Equal Employment Opportunity Commission alleging discrimination on the basis of being regarded as disabled, with alcoholism being the disability. The Americans with Disabilities Act has been construed to prohibit discrimination against rehabilitated alcoholics, but not to protect current substance abuse. However, the line distinguishing behavior regarded as current from that regarded as past can be hazy. (Len Pasquarelli, "Bengals' Thurman, Bucs' Cox file discrimination claims against NFL", ESPN.com, Aug. 17). Paul Secunda discusses at Workplace Law Prof (Aug. 23).