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Ct.: timed test for fire captain violates ADA

Lt. David Lenotti says the fire department of Stamford, Connecticut improperly denied him extra time on its test for promotion to captain even though he had a diagnosis of learning disability. A state human rights investigator has backed Lenotti’s complaint, which is scheduled for a Jan. 23 hearing, but the Stamford authorities beg to differ:

The city has never granted anyone extra time on the lieutenant’s or captain’s exams, said Felicia Wirzbicki, human resources generalist. … The reasoning is that lieutenants and captains are in charge at emergency scenes and have to make split-second decisions, Wirzbicki and other city officials said. Those decisions often are based on floor plans, hazardous material reports and similar documents, they said. Speed is an “essential function of the job,” the city argued. … “You don’t get extra time at a fire scene,” Wirzbicki said.

None of which seems to cut much ice with disabled-rights advocates:

“You’re supposed to give accommodations, period,” said Suzanne Kitchen, a clinical instructor and consultant for the Job Accommodation Network, a federally funded non-profit that provides employers with advice on disability rights. “No is never the right answer.”

That last sound bite is actually quite false as a legal matter; in fact Ms. Kitchen herself is described elsewhere in the article as correctly noting that accommodations may sometimes be refused under the law. But it does have quite a ring to it, though, doesn’t it? (Zach Lowe, “State official: Disability rights apply on fire captain test”, Norwalk Advocate, Jan. 15). Jeff Hall at Created Things comments (Jan. 16).

All of which is very much business as usual in today’s employment discrimination law. Long before the disabled-rights suits came along, fire departments had came under intense attack by feminist litigators seeking to invalidate testing of applicants’ physical strength, agility and so forth, particularly when timed tests were involved. I wrote about this history at some length in The Excuse Factory, a few of the highlights figuring in this 1997 magazine piece. An excerpt:

[In Brunet v. Columbus] Judge Kinneary also disallowed the city’s practice of awarding credit for speed in accomplishing the dummy rescue or other simulated tasks such as hoisting equipment to upper floors (men tended to finish the tasks more quickly than women). Why? Well, Kinneary wrote, again accepting the arguments of plaintiffs’ lawyers, testimony had been given that “sometimes firefighters work all-out, and sometimes they pace themselves; it depends on the task at hand.” In other words, they hurry only sometimes, and other times save their energy because they expect to need it later. From this the judge concluded that all applicants who made it through the tasks at all deserved equal ranking. The case for preferring recruits who could work quickly was merely, he said, “anecdotal.” Yes, you read that right. It seems people have picked up this anecdotal idea that firefighters should do their job fast, maybe because they’ve heard anecdotally that fires left undoused tend to spread. Many press accounts adopted the same high-minded agnosticism about exactly what it takes to fight fires. City officials defending tests say “speed is critical” in combating blazes, reported the New York Times, in the best tradition of we-print-all-viewpoints journalism. “Opponents argue that it is not.”

New Orleans king cake, and the French kind

In its traditional presentation, the celebrated Mardi-Gras-season New Orleans King Cake contains a small concealed figurine of a baby which someone gets as part of their slice; the lucky recipient then has to throw the next party or buy the next cake. Back in Feb. 2002 we ran an item, quoting columnist James Lileks, on how purveyors of some store-bought King Cakes no longer were willing to conceal such a figurine, tradition or no. For a discussion of King Cakes, including a picture of what one looks like, check Blawg Review #90, just published the other week at Minor Wisdom.

Now the New York Times introduces us to what is apparently the original French version of the cake, a flat round galette, also served during Carnival and also concealing a good-luck figurine. Don’t expect to encounter this delicacy in American stores, however, for reasons readers of this site will easily anticipate:

Alexandre Colas recalled that he once met a baker from Syracuse, N.Y., at a trade show in Paris, who at first showed interest in buying porcelain favors for his baked goods but later backed off. “He said there were too many legal issues,” he said.

(John Taglibue, “3 Lands of Orient Compete With French Holiday Favors”, New York Times, Jan. 17).

January 17 roundup

  • Life in prison for adulterers, under Michigan law? [Freep]

  • An Albany personal injury lawyer favors abolishing pain and suffering damages in negligence cases [Warren Redlich]

  • Lott v. Levitt (Jan. 12, etc.) further discussed [Concurring Opinions]

  • Call us kitten fish, cont’d: some trial lawyers re-brand as “civil justice attorneys” [Fulton County Daily Report]

  • Smokers’ freedom defended, by Nobelist James Watson and Canadian columnist Jose Rodriguez [Reason, Calgary Sun]

  • Dinesh D’Souza’s new book doesn’t sound like it’s going to do any favors for his reputation. [Slate, Eric Scheie]

  • Also from Tim Noah: now that O.J.’s confessed, can the law really not lay a glove on him?[Slate]

Title IX and cheerleading

Once again Title IX spoils the fun for kids of both sexes, this time in the realm of cheerleading, where school officials, reports the New York Times, are “redefining the role of cheerleaders in response to parental and legal pressures” — in particular, they’re requiring that cheerleaders be forced to devote half their time to cheering girls’ sports, “regardless of whether the girls’ basketball teams wanted and/or asked for” them, to quote the New York rule. It would be too much to expect actual criticism of the sacrosanct sex-equality-in-sports law, but the report does make clear that most of the kids involved, including a large share of the girls as well as the boys, don’t find the new way of doing things an improvement. “Rosie Pudish, the parent who filed the original complaint, said she did so even though her own daughter, Keri, a varsity basketball player at Johnson City High School, did not particularly want cheerleaders at her games.” (Winnie Hu, “Equal Cheers for Boys and Girls Draw Some Boos”, Jan. 14) [broken link fixed now]. More: Nov. 2, 2006, May 7, 2005, etc., as well as here and here.

Fatal draught of water

Tomorrow’s headlines today on Overlawyered: scarcely had Ted speculated in this space (Jan. 12) about the possibility of warning on water bottles that excessive drinking of water can be fatal, than a sensational news story comes down the wires that a California radio station, apparently ignorant or heedless of the very real risks involved, staged a water-drinking contest which proceeded to kill one of its participants (“Woman drinks so much water she dies”, AP/CNN, Jan. 13; Respectful Insolence, Jan. 14). Profs. Childs and Berman discuss the legal implications. More: In an update, Respectful Insolence provides further evidence of the recklessness of radio station personnel; the station’s ownership has fired ten of them.

Worst judges, cont’d

On Jan. 5 we linked a story about an Alabama lawyer who faces serious disciplinary action because he collected a $1.2 million fee for writing a will for a dying man without in fact meeting the man; after the controversy had arisen, voters elevated him to the bench. Now, in North Carolina, authorities are wondering what to do about Judge James Ethridge, “stripped [by the state bar] of his law license in October after deciding he had swindled an ailing, older woman of her home and life savings while he was a lawyer in 2001. …Without a law license, Ethridge is barred from holding court and signing orders. But he is not barred from keeping the job,” in which he has presided over criminal and family cases arising in Johnston, Harnett and Lee counties. “The predicament is getting expensive. …The state may be forced to pay Ethridge’s annual salary of $101,376 until his term as judge ends in December 2008” and in the mean time taxpayers are shelling out for substitute judges to hear the cases. (Mandy Locke, “Disbarred judge can’t hold court but holds onto pay”, Raleigh News & Observer, Jan. 9).

Update: Per Dr. Mary Johnson in comments, Ethridge has resigned.

January 14 roundup

These roundups aren’t so hard to do once you get the hang of them:

  • Boutrous on suit against “recovered-memory” doubter Loftus [W$J]. Earlier: here, here.

  • Yet another expose of the “scrumptiousness epidemic” [Beato/Reason]

  • OK to challenge jurors based on occupation, Calif. appeals court rules [Egelko/SF Chronicle]

  • UK: “Murderer and his fraudster wife are given £20,000 legal aid to fight for an IVF baby” [Daily Mail]

  • Truce, seemingly, between class-actioneers Bernstein Litowitz and Milberg Weiss [Koppel/WSJ Law Blog]

  • Behind one of the biggest med-mal awards in Canadian history, a question of whether risk of bearing twins was warned of [KevinMD]

  • Judge Patel grants class-action status to Costco gender-bias suit [Lattman/WSJ law blog]

Panic! Broken thermometer!

Nowadays the response can stop just short of a SWAT team and helicopter rescue, as seems to have happened in this tale from a private home in Carmel, Putnam County, New York (“Broken Thermometer Causes 100 to Respond to Mercury Spill”, AP/WSYR, Jan. 2; Q and O, Jan. 3)(via Coyote).

Should retired judges practice law?

Not according to the view of many in Britain:

The London Solicitors Litigation Association has attacked Government proposals to allow some judges to return to private practice, warning that public perception of judicial impartiality could be compromised. The body, which represents around 800 City litigators, called the proposals “a retrograde step”.

(“The Water Cooler”, Times Online, scroll to Dec. 13). For the benefit of international readers, it should be noted that retired judges in the U.S. can and often do return to private practice. Most elect to practice relatively sedate forms of law, but an exception familiar to Minnesotans is former federal judge Miles Lord, whose personal injury practice, established after he departed his controversial tenure on the bench, has taken out full-page Yellow Pages ads touting his background.

Duke rape accuser changes story again

Maybe its time to join FoxNews.com in putting quote marks around rape in the headline (“Duke Lacrosse ‘Rape’ Accuser Changes Story Again, Says Seligmann Didn’t Touch Her”, AP/FoxNews.com, Jan. 11; Joseph Neff, “Accuser changes story in lacrosse case”, Raleigh News & Observer, Jan. 11). Dorothy Rabinowitz of the Wall Street Journal is one who isn’t laughing (“The Michael Nifong Scandal”, OpinionJournal.com, Jan. 11).