A disabled attorney known for filing dozens of suits against animal control authorities, and for frequent courtroom clashes with judges as well as a wide range of other adversaries, is the subject of a Des Moines Register profile. “In recent weeks, McCleary launched a multi-pronged effort to block the publication of this article.” He has sought accommodations for courtroom conduct under the Americans with Disabilities Act. Despite the run-ins, his “license to practice law is spotless, with no record of any public disciplinary action taken by the Iowa Supreme Court.” [Clark Kauffman, Des Moines Register; Insurance Journal (public records request indicates insurers for city of Des Moines paid him $2.1 million following claim of head injuries from falling garbage can)]
Congress still needs to step in to quash web accessibility suits. Pulling back rulemaking at the Department of Justice does not stop any of the private suits, nor does it curtail the wide-open scope of liability under the perceived precedent of the Winn-Dixie case [Minh Vu, Seyfarth Shaw]
- “Can Fido Come to Work? EEOC Files Suit to Require Emotional Support Dog on Truck Route” [James M. Paul, Ogletree Deakins] “Someone brought a $@&@?! therapy duck into Iowa Law School.” [Prof. @andygrewal, with picture]
- EEOC sues Dollar General, alleges medical exams and questions violate ADA, GINA [Courtney Bru, McAfee & Taft]
- “My only surprise is that these kind of [ADA vs. NFL] suits don’t happen more often.” [William Goren, Understanding the ADA on Erin Henderson v. New York Jets LLC]
- When Addressing a Workers’ Comp Claim, Don’t Forget FMLA (and ADA)… [Janette Frisch on Zuber v. Boscov’s, Third Circuit]
- “Lucky Employer Skates on ADA Liability: Complaints about Noisy Workplace Not Enough to Put Employer on Notice of Need for ADA Accommodation” [Marti Cardi and Gail Cohen,
- “The ADA: Four issues to watch in 2018” [Robin Shea, Constangy]
From reader Matt S., on a phenomenon people have been musing about for years:
No, if you think about it, it’s fairly easy to understand that one..
They have to have the braille on walk up ATM and it’s just easier to have one set of buttons on a given ATM model that can be installed anywhere, than to manufacture two different sets of controls for any one model, one for walk up installations and one for drive through installations.
Once you have to have braille on some ATMs, basic economics says that it will be more cost efficient to have it on all ATMs.
It’s part of a lively reader discussion of accessibility rules.
Reversing a trial court, the Third Circuit has ruled that a deaf/blind man can sue Cinemark under the Americans with Disabilities Act (ADA) demanding that it provide a “tactile interpreter” so that he could experience the movie Gone Girl. Each interpreter — two would be required because of the movie’s feature length — would narrate the film in American Sign Language (ASL) while McGann placed his hand in contact with theirs to read the signs. The appellate judges rejected the argument that because of the need for subjective stylistic judgments about how to describe the movie’s action, on-the-fly translation would “fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered,” an exception recognized by the law to its accommodation requirement. It sent the case back for further proceedings on whether the theater could plead “undue hardship,” a narrow defense that is often unavailable to large businesses which (it is argued) can cover even very high costs of accommodation by using revenues earned from other patrons [McGann v. Cinemark]
“That weekend, she called her parents several times. She also called two hospitals to see if they had been in an accident. She called their landlord, too, and he agreed to visit the house. He reported that there were no signs of them. She told her husband, ‘I think someone kidnapped my parents.'”
Of all the scams and outrages in the legal system that I’ve written about, few get me as angry as does guardianship abuse. Rachel Aviv’s New Yorker report from Nevada shines a light into some dark places of elder law and of the human heart. Earlier here and here (2009 Brooklyn), here (Connecticut), here (North Carolina), here, etc. (Bronx).
- “Before you fire that political extremist…” [Robin Shea, Eric B. Meyer, Philip Miles, Eugene Volokh, Tammy Binford/HRHero]
- Municipal worker with brain injury could not perform “the essential functions of his job,” per a neurologist’s letter, jury award plus backpay calculation totals $354,070 [Robin Shea on Stragapede v. City of Evanston, Seventh Circuit]
- “Trump suspends burdensome Obama EEO-1 form that cost $400 million” [Hans Bader]
- Court orders EEOC to revamp rules for employee wellness programs, under fire as ADA and GINA violation [Allen Smith/SHRM, Barbara Zabawa/WellnessLaw]
- A proposal from NYU’s Sam Estreicher: “‘Safe Harbor’ Rules for Cases of Chronic Hiring Aversion” [Journal of Law and Public Affairs, shorter version On Labor, also Sam Bagenstos response and Estreicher rejoinder]
- Nuclear Regulatory Commission regulations override ADA, so utility is allowed to dismiss nuclear plant employee displaying paranoid symptoms [McNelis v. Pennsylvania Power & Light, Third Circuit, via John Ross/Short Circuit]
A while back I went to community college. I was recovering from an injury and in a vocational rehabilitation program. Part of the program was working for the college. We had a grant for computer workstations. At that time there was a shortage of computers at the college. We had a large room assigned to us and we were to cram in as many workstations as we could. When I submitted my layout I had 60 workstations in the room. I was asked how many were wheelchair accessible? I said “The front twenty.” I was told that all of the workstations had to be wheelchair accessible because the college didn’t want to have the chance of a lawsuit. In the end we could only fit 40 workstations. We lost 20 workstations. The part that got me was that the room we were assigned was on the second floor of a building. The building was grandfathered in and didn’t have wheelchair access. Another thing was that in the history of the college the most students that they ever had in wheelchairs was five.
A dreadful idea, but sure to keep lawyers busy: American Bar Association president proposes constitutionalizing the principles of the Americans with Disabilities Act by getting the Supreme Court to reverse City of Cleburne (1985), in which it declined to pronounce the mentally disabled a suspect or quasi-suspect class under the Equal Protection Clause [ABA Journal]
Meanwhile, where we are now: Mark Pulliam surveys the landscape of the actual ADA and finds that it “has spawned senseless mandates, abusive lawsuits, and stratospheric costs.” [Mark Pulliam, City Journal, and related; thanks for kind mentions]
“A deaf former IBM worker claims he wrongly accepted a lowball discrimination settlement of $200,000 because his lawyer exaggerated his knowledge of sign language and confused the sign for ‘million’ with that for ‘thousand’ while negotiating the deal.” Software engineer James Wang, who had blamed his firing on his deafness, got $200,000 but says he expected $200 million. [New York Post]