I.
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Current Issues: Americans with Disabilities
Act |
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A.
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Definition of
Disability |
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1.
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Eyeglass
wearing pilots with correctable vision held not disabled. Supreme Court
said, “if a person is taking measures to correct for, or mitigate, a
physical or mental impairment, the effects of those measures -- both
positive and negative -- must be taken into account when judging
whether that person is ‘substantially limited’ in a major life activity
and thus ‘disabled’ under that Act.” Sutton v. United Air Lines, Inc.
527 U.S. 471 (1999). Person whose blood pressure controlled by
medication not disabled. Murphy v. United Parcel Service, Inc., 527
U.S. 516 (1999). Extends to self-accommodation. Albertson’s, Inc. v.
Kirkinburg, 517 U.S. 516 (1999) (“no principled basis for
distinguishing between measures undertaken with artificial aids, like
medications and devices, and measures undertaken, whether consciously
or not, with the body’s own systems”). Popko v. Pennsylvania State
Univ., 84 F.Supp.2d 589 (M.D.Pa.2000)(on remand for further
consideration of whether plaintiff’s epileptic condition was a
“disability” in light of recent Supreme Court decisions. Pacella v.
Tufts Univ. School of Dental Medicine, 66 F. Supp.2d 234 (D.Mass.
1999)(as corrected vision does not substantially limit a major life
activity). Tangires v. The Johns Hopkins Hospital, 79 F.Supp.2d 587
(D.Md. 2000)(employee with asthma not disabled where asthma was
treatable with medication that she refused to take).
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2.
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ADD/ADHD
disabilities?
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B.
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Reasonable Accommodation
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1.
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Indefinite
unpaid leave not a reasonable accommodation. Lance v. University of
Tennessee, 60 F.Supp.2d 773 (E.D.Tenn. 1999).
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2.
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Plaintiff
permanently restricted to light duty work was no longer qualified for
custodial position with or without accommodation. Could not perform
functions of job. Scott v. University of Toledo, 2000 Ohio App. LEXIS
851 (Ohio Ct. App. 2000).
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3.
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Student
diagnosed with math learning disability failed to pass a required math
class and therefore failed to obtain elementary education degree;
university provided several accommodations but would not waive class or
accept a D grade. Pangburn v. Northern Kentucky University, 2000 U.S.
App. LEXIS 6413 (6th Cir. 2000).
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C.
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Documentation
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1.
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Student
has obligation to give college notice of disability and request
reasonable accommodation/academic adjustment. Notice and request must
be timely. Student must provide documentation.
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2.
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Documentation must show current
disability. Guckenberger v. Boston
University, 974 F.Supp.106 (D. Mass. 1997)(demands for documentation
must reflect medical expertise re: currency and age; distinction
between LD and ADD because of possibility of change in symptoms).
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3.
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Diagnostic
professional must be qualified. Standard in the field.
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4.
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Documentation must be complete. How
diagnosis was reached;
qualifications of diagnostician; how are major life activities
impacted; how disability affects academic difficulties; IEP may be
insufficient on its own; request for adjustment must be consistent with
documentation; if documentation is inadequate, institution must advise
student in a timely fashion.
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5.
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College
may conduct its own evaluation at its own expense.
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6.
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Academic
adjustment must be provided while the student is being evaluated.
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1.
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Process
for determining adjustments should be interactive.
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2.
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IDEA
Families. Need to prepare for differences in expectations that
students and parents may have based on their experience in public
school setting. Should provide notice and train those handling
orientation to refer to disability services coordinators.
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D.
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Access to Technology
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1.
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Use of
technology is exploding: 1/4 of classes use internet as part of
syllabus; use of email in classes up from 8% in 1996 to 44% in 1998.
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2.
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Qualified
disabled students must have equal access to the program. Section 504,
29 U.S.C. 794, 34 C.F.R. 104; ADA, 28 C.F.R. 36.303, 28 CFR 35.160.
Communication must be as effective. May consider alternatives as long
as access to the program is equal. May need to provide training.
Colleges must be proactive. See, Tyler v. City of Manhattan, 857
F.Supp. 800 (D.Kan. 1994).
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3.
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What is
access? facilities; computer workstations; materials, documentation and
support; training and tech support; maintenance and repair of
accessible features; course materials; on-line class discussion;
submission of assignments.
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4.
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Consider
accessibility in purchasing and leasing. Consider benefits of universal
designs.
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5.
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Provide
accessible technology in integrated setting.
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6.
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Includes
web design (recommendations from DO-IT; University of Washington).
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7.
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Web
Resources: “Bobby”, a website that can check other websites for
accessibility, www.cast.org/bobby; Equal Access to Software and
Information, www.rit.edu/~easi/>; Postsecondary Innovative
Transition and Technology, www.wri-edu.org/postitt/>; Alliance for
Technology Access, www.ataaccess.org/design.html.
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E.
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Testing
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1.
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See
provisions on testing students with disabilities in revised (December
1999) Standards of the Joint Committee on Testing (American
Psychological Association, National Council on Measurement in
Education, and the American Educational Research Association); Bartlett
v. New York State Board of Bar Examiners, 156 F.2d (2d Cir. 1998)
vacated and remanded, 119 S.Ct. 2388 (June 21, 1999) (being
reconsidered in light of Sutton case)(is a student with LD disabled
under ADA?).
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2.
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Accommodation must be provided so that
person can demonstrate his or
her aptitude and achievement, not the effect of the disability (except
where the functions impaired by the disability are the factors the test
purports to measure). Not required to waive or lower essential program
requirements or to fundamentally alter nature of program.
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3.
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Must be
well-reasoned decision. Wynn v. Tufts University of Medicine, 932 F.2d
19 (1st Cir. 1991) and 976 F.2d 791 (1st Cir. 1992) and Guckenberger v.
Boston University, 8 F. Supp. 2d 82 (D. Mass. 1998). Categorical
denials of extra time beyond pre-set limits probably not okay. Must
make individual determination.
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F.
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Psychological/mental Disabilities
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1.
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Dismissal
of student because of a concern that, as a result of the student’s
disability, the student might engage in conduct that poses a risk to
health or safety, special standards apply that are designed to balance
the legitimate concerns for safety with the goal of protecting disabled
students from unfounded fears and prejudice. Must be a “direct threat.”
School Board of Nassau County v. Arline, 480 U.S. 273 (1987). A “direct
threat” is a significant risk of causing substantial harm to the health
or safety of the student or others that cannot be eliminated or reduced
to an acceptable level through the provision of reasonable
accommodation. Individualized assessment. Institution must identify the
standards to be applied and give notice to the student that standard
not met. Must make decision on reliable information: objective evidence
and reasonable judgments relying on current medical knowledge. Doe v.
NYU, 666 F.2d 761 (2nd Cir. 1981). General reference: Thomas J.
Flygare, Students with Learning and Psychiatric Disabilities: New
Challenges for Colleges (NACUA Publication Series 2000).
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G.
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Access to Facilities
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1.
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Title III
of the ADA existing facilities approach is different from Title II and
Section 504. Obligation to remove architectural barriers if “readily
achievable.” Look at barriers not program. Use common sense.
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2.
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Internet
resource: U.S. DOJ, “Settlement Agreement Between the United States of
America and Duke University,” www.usdoj.gov/crt/ada/duke.htm
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II.
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Current Issues:
Employment Discrimination
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A.
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Training
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1.
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New
incentives provided by Supreme Court.
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a)
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Kolstad v. American Dental Association, 527 U.S. 526 (1999)
(employer prevention efforts relative to punitive damage claims)
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b)
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Faragher v. City of Boca Raton, 524 U.S. 775 and Burlington
Industries v. Ellerth, 524 U.S. 742 (1998)(affirmative defense requires
“employer exercised reasonable care to prevent and correct promptly any
sexually harassing behavior). Lower courts have applied this to
harassment on the basis of race, Allen v. Michigan Dept. of
Corrections, 165 F.3d 405 (6th Cir. 1999) and disability, Wallin v.
Minnesota Dept. of Corrections, 153 F.3d 681, 687-88 (8th Cir. 1998),
cert. denied 526 U.S. 1004 (1999).
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2.
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The federal
government has proposed amendments to the FAR that would impose
training on entities that receive federal grants and contracts. 64 Fed.
Reg. 37359 (July 9, 1999). Contractor qualifications to include
“workplace practices addressing matters such as training, worker
retention, safety programs and legal compliance.” See,
www.noblacklisting.org.
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3.
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Some states
also have training requirements. See, “The Emerging Law of Training,”
by G. Mathiason and M. deBernardo, Federal Lawyer 25, 26 (May 1998).
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4.
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Disheartening statistics published by
Tillinghast-Towers Perrin,
Under-Managed Risk: Employment Claims Drive Rising ELL Occurrences and
Costs: A Summary of Findings from the 1997 Educators Legal Liability
Coverage Survey (800-525-6741):
No training on sexual harassment offered by half of institutions
surveyed; on ADA by two thirds; on employee terminations by three
quarters. About 80% don’t train committees that make rank and tenure
decision, resolve grievances or conduct searches.
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5.
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Internet
resources:
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a)
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University of New
Mexico --www.unm.edu/~hrinfo/Eod/workshops/civilrightstrng.htm
linking to www.unm.edu/~hrinfo/civilrights/intro.htm.
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b)
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University of Washington -- www.washington.edu/admin/traindev/index.html.
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c)
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www.preventivepractices.com,
on-line sexual harassment course for faculty and other university
employees and students.
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B.
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ADR/Mandatory Arbitration
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1.
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Some
employers are choosing to require new employees, as a condition of
hiring, to waive their right to resolve employment disputes in a
judicial forum and to have all such disputes resolved through
arbitration. Some employers are also requiring current employees to
sign such waivers as a condition of promotion, receipt of salary
increases or to keep their jobs.
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2.
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Where
employees have entered such agreements but nevertheless sought to sue
under state or federal laws, employers have responded by filing motions
to compel arbitration. Most of these cases have been decided in favor
of the employers. The Supreme Court affirmed in Circuit City Stores v.
Adams, 121 S.Ct. 1302 (2001) that arbitration clauses in employment
contracts are enforcible and the Federal Arbitration Act applies.
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3.
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EEOC Policy
Statement on Mandatory Binding Arbitration of Employment Discrimination
Disputes as a Condition of Employment (July 10, 1997),
www.eeoc.gov/docs/mandarb.txt.
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4.
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Where
enforced, courts tend to agree on following:
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a)
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agreements must be
voluntary on part of employee;
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b)
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there is consideration
for the waiver;
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c)
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arbitration process
protects employee rights;
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d)
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Section 119 of the
Civil Rights Act of 1991 does not prohibit arbitration of claims
brought under Title VII, the ADEA or other federal civil rights laws.
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5.
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To increase
enforceability of arbitration clauses:
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a)
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binding on employer
and employee;
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