- Blockbuster “web accessibility” issue, with potential for massive disruption of online life, continues to drag on without action in Washington despite urgings from academics; but at Ninth Circuit’s behest, California Supreme Court will decide whether state’s Disabled Persons Act covers websites [David Ettinger, Horwitz & Levy] More: Amy Alkon and commenters;
- Federal district judge (E.D.N.Y.), suspecting foul play in multiple ADA filings, sends staff to investigate, but that’s a no-no as the Second Circuit reminds him [Josh Blackman]
- Noting “continuing paranoia and obsession,” Vermont Supreme Court rebuffs bar applicant claiming discrimination on basis of mental illness [ABA Journal]
- Just fine and dander: optician’s shop in suburban Detroit turns down worker’s request to bring service dog for generalized anxiety disorder, will pay $53,000 in settlement [EEOC]
- Attack on “sheltered workshops” fits into multi-front effort to extend reach of federal wage-hour law: “Landmark DOJ settlement with RI provides road map to disability-law compliance for 49 other states” [ABA Journal]
- Coalition politics counts: prominent disabled-rights groups [AAPD, DREDF, Bazelon Center, etc.] favor driving up cost of at-home attendants at expense of their own putative constituents [Benjamin Sachs, On Labor, on Harris v. Quinn amicus]
- “Alcoholism and the ADA: Not as clear-cut as you think” [Dan Wisniewski, HR Morning, on Crosby v. F.W. Webb Co.] “Playing golf and having sex are major life activities under the ADA” [Eric B. Meyer]
Posts Tagged ‘disabled rights’
Physical attendance not required? ADA and telecommuting, cont’d
If employers think they’ve got discretion to decide whether a job requires on-the-spot attendance, they’ve got another think coming [Daniel Schwartz, Jon Hyman]:
In EEOC v. Ford Motor Company, the Sixth Circuit Court of Appeals found that a former Ford employee could proceed to a trial on her claim that the company was required to allow her to telecommute on a regular basis. …
[The plaintiff was a] “resale buyer” at Ford who responded to emergency steel supply issues to make sure that parts manufacturers always had an adequate steel supply on hand.
According to Ford, her job required group problem solving, including interaction with other members of the resale team and suppliers….
[The court said that while] attendance at work is still an essential function of most jobs, “attendance” can no longer be assumed to mean presence at the physical workplace.
Instead, the court said, a jury should decide whether physical attendance is an “essential function” of the job under all the circumstances. Earlier here and, at Cato, here.
“Denial of Disabled Lawyer’s Request For ‘Shadow’ Assistant Wasn’t Bias”
How far can an employee go in ADA demands before finally going too far? [Charles Toutant, New Jersey Law Journal]
The lawyer, a deputy attorney general known as E.H. in court papers, made 30 requests for special treatment in the course of his first year on the job—ranging from reserved indoor parking, adjusted timing on elevator doors, a grab handle in the rest room and transportation to court appearances—all of which were granted.
He sued because his 31st request—for a personal assistant who would “function as his shadow”—was refused.
On Thursday, an appeals court ruled that the Attorney General’s Office did not violate laws against disability discrimination. The court said deference was due the findings of the Civil Service Commission that an assistant was not warranted because it would not help E.H. address his weak job performance.
When the Americans with Disabilities Act was new, there was hopeful talk among some disability advocates of what some wary employers nicknamed “two-for-one” hiring — demands that a second employee be put on payroll to assist the first. While courts have generally declined to go along with this idea, it is sobering to think the issue might be close enough that the worker’s very poor job evaluations might have mattered one way or the other.
Discrimination law roundup
- Mayor de Blasio settles firefighter bias suit on terms sympathetic to plaintiffs [City Journal: Dennis Saffran and Seth Barron]
- One way to dodge some Culture War fights: roll meaning of “public accommodation” back to travel, lodgings, places of public amusement, etc. [Andrew Kloster, Heritage] As original/creative expression goes, florists and cake-bakers sometimes outdo NYT’s Greenhouse [Ann Althouse] From Dixie Chicks to Hobby Lobby, few escape hypocrisy when commerce collides with convictions [Barton Hinkle]
- Department of Education’s Office of Civil Rights investigating Florida’s popular Bright Futures college scholarship program [Orlando Sentinel]
- Do EEOC mediators overstate risk of legal action to extract big settlements from employers? [Bloomberg BNA, Merrily Archer on survey] New Colorado expansion of employment liability bad news for large and small employers alike [Archer]
- “Religious exemptions — a guide for the confused” [Eugene Volokh]
- Washington Post columnist repeats myth that Lilly Ledbetter “did not know she was being paid less than male counterparts” until after statute of limitations had run; Hans Bader corrects [letter to editor]
- If helping out local people was one reason your town decided to back public housing, you might have been played for suckers [AP on DoJ suit against Long Island town over local preference]
“Families of autistic kids sue Disney parks over policy on lines”
“Families with autistic children have sued Walt Disney Co., alleging the company does not provide adequate access to theme park visitors with autism who have difficulty waiting in long lines for rides.” [Reuters/Chicago Tribune]
Chicago judge ruled legally insane wants to be restored to bench
Not an April Fool’s: we’ve covered the saga of Judge Cynthia Brim in two earlier posts. Chicago voters re-elected her to the bench despite troubles which eventuated in a successful defense to misdemeanor battery charges on the ground of insanity. [Chicago Tribune, auto-plays annoyingly]
Speak not of walkability
“From a realtor: ‘Regarding the Metro, I never putting “walk to..” on my listings because when I took my GRI classes they warned us that “walk to” might trigger a complaint of discrimination against people with disabilities.’ Sigh…” — David Bernstein, law professor and author of “You Can’t Say That! The Threat To Civil Liberties from Antidiscrimination Laws”
Can forbidden grounds be rational grounds? Ask Prof. Chemerinsky
Suppose an enterprise has an 81-year-old executive who’s currently able to perform well, but has had recent health problems and faces a significant actuarial risk of disablement or worse within a few years. Suppose the continued tenure of this executive complicates the enterprise’s future, through sheer uncertainty (since an unforeseen departure crisis might come at just the wrong time) and because certain high-quality potential successors available to step in now might not be available two or three years hence.
Is it somehow illegitimate or invidious even to think through considerations like these, because the absolutely only relevant factor is how well the person can perform the job right now?
If you say, “yes, it’s totally illegitimate and invidious, you should be ashamed of thinking this way” then congratulations: current federal workplace law is on your side. Disabled-rights law makes it legally hazardous for an employer, in the course of pretty much any action — say, career counseling of existing employees — to consider the risk of future recurrence of a disabling condition now in remission. Age-discrimination law makes it unlawful to treat an 81-year-old as lacking any advantage that a 46-year-old might bring to an enterprise with long time horizons — and again, just evidence that an employer has been thinking along these lines is a lawsuit risk whether or not it actually proceeds to send hints to an individual employee about passing on the torch. In the Mad Men era, employers routinely had policies expecting their executives to retire at a certain age; now the law bans such policies, whether the age in question be 65, 75, or 85.
If on the other hand you say, “no, it’s not illegitimate, it’s just common sense to acknowledge factors associated with age and disability as part of life and we all take them into account whether we admit it or not,” then come on over and join the unlikely duo of me and, more importantly, the distinguished Prof. Erwin Chemerinsky, who applies all this logic to the situation of Justice Ruth Bader Ginsburg. Now as it happens, on the particulars of this one case, I don’t go along with Chemerinsky’s conclusion; I find myself more swayed by Prof. Garrett Epps’s rather more gracious argument that Ginsburg has good reason to stay, especially as the intellectual firepower of the Court’s left wing might well take a hit if she leaves.
It’s great to know, though, that Prof. Chemerinsky sees through the flimsy rationale that underlies these sectors of discrimination law. I was afraid he was going to turn out to be some kind of big liberal.
EEOC roundup
- Federal judge in Buffalo “dismisses EEOC’s largest pending pattern or practice lawsuit for failure to investigate” [Gerald Maatman, Jr. and Jennifer Riley, Seyfarth Shaw] U.S. magistrate judge in North Carolina orders sanctions against agency in lawsuit against law firm Womble Carlyle [Mary Kissel, WSJ]
- Commission’s campaign against employer use of criminal background checks meets resistance from nine state attorneys general [Penelope Phillips, Minnesota Employment Law Report] Federal judge in Maryland dismisses EEOC criminal-and-credit-background-check case against Freeman Companies using words like “laughable,” “unreliable,” “mind-boggling” [Nick Fishman, Employee Screen; Eric B. Meyer]
- Is regular attendance an essential job function for ADA purposes? Commission takes a hard line against employers who insist that showing up regularly is essential to a job without building a case individualized to the particular dispute [Jon Hyman, Ohio Employer’s Law Blog]
- Missed this one in October: Cato files amicus brief in lower-court case of EEOC v. Kaplan, on disparate impacts of credit checks in hiring [Ilya Shapiro]
- More epic losses by agency last year (earlier posts on that here and here) include Evans Fruit case [AP/Seattle Times] Defendants disadvantaged by agency’s prejudicial delay [Molly DiBianca on PBM Graphics and Propak Logistics cases; Anastasia Killian, WLF] Federal judge in Iowa orders agency to pay $4.7 million in attorneys fees to defendant trucking company CRST [Gerald Maatman Jr. and Howard Wexler, Seyfarth Shaw, ABA Journal, Wall Street Journal]
- “Does the EEOC Try To Intimidate Employers?” Merrily Archer v. Robert Young [Richard Cohen, Fox Rothschild; more from Merrily Archer on agency incentives; her major 2012 victory in the Picture People case, and a dissent]
- In commission’s view, two “incidents which ended in ambulance trips to the hospital” not enough to classify employee as safety risk absent individualized ADA determination [Joe Lustig]
Disabled minimum wage: ideology trumps experience
Heeding demands from constituency groups, President Obama orders a $10.10 hourly wage even for the most severely disabled workers under the scope of his federal-contractor order [USA Today] Writes Mike Bennett on Twitter: “As a parent of a disabled son, I would much rather he have a real job at five dollars an hour then a theoretical job at $10.10.”