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September 2005
ADA Case Could Be Key Test for Roberts By Tony Mauro Civil rights advocates were optimistic in May when the Supreme Court agreed to consider a Georgia case that will decide whether disabled inmates can sue states over prison conditions under the Americans with Disabilities Act. It was only a year earlier, disability activists reasoned, that the Court in Tennessee v. Lane had authorized similar suits by disabled people whose physical access to courts was hampered by courthouse design. But then came the July 1 retirement announcement by Justice Sandra Day O'Connor, who was considered the swing vote in the 5-4 decision in Tennessee v. Lane. Optimism suddenly was put on hold, where it remains because of uncertainty over the views of her likely successor, John Roberts Jr. Now the case of Goodman v. Georgia, set for argument on Nov. 9, looms as an early and crucial test of Roberts' views not only on disability rights but on issues such as federalism — the power of Congress to enact laws like the ADA that expose states to lawsuits — that are wrapped up in the dispute. And it will be a case study of how the change of a single justice can alter the way a case is briefed and argued to the Supreme Court. "The outcome of this case will all come down to Roberts," says Kevin Russell, a former appellate lawyer in the Justice Department's Civil Rights Division and now a partner at D.C.'s Goldstein & Howe. "If he defers to Congress here, it will be an important sign of his first few years on the Court." This scenario, of course, assumes Roberts is confirmed by the Senate and seated in time to hear the case. Lawyers for Georgia State Prison inmate Tony Goodman — a paraplegic who sued because prison officials wouldn't help him reach the bed or toilet in his cell — insist they view the case now the same way they did before: as a winner, with or without O'Connor. "We're aiming for the whole Court," says lead lawyer Seth Galanter, of counsel at Morrison & Foerster. "We have this great precedent in Lane, and if they feel they are bound by Lane, this will be an easy case for them." Washington University in St. Louis School of Law professor Samuel Bagenstos, also part of the legal team representing the prisoner, adds: "Of course, when there is a change in membership in the Court, you are going to pay attention to that. But it doesn't change anything essential about the case." But other lawyers involved in the case are less sure of victory now, and they say changes in strategy have already been discussed, with a new emphasis on trying to win the vote of Justice Anthony Kennedy, who was in dissent in Tennessee v. Lane. If Kennedy switches sides, Goodman would still win even if Roberts were to vote against the ADA. "Under last term's Court, this was pretty much of a slam-dunk," says Elizabeth Alexander, director of the American Civil Liberties Union's National Prison Project, who participated in an amicus curiae brief in the Goodman case. "Now we're more nervous. That's pretty obvious." Ira Burnim, legal director of Bazelon Center for Mental Health Law, who coordinated the amicus effort in the Goodman case, agrees. "For O'Connor, deciding what was just in this case would be more important than pushing a particular agenda," Burnim says. "Roberts is being sold as someone who is like O'Connor in that way, but I don't think the facts will permit that. There is a lot of evidence that he is an ideologue." Disability rights has already emerged as a potential sticking point in Roberts' confirmation hearings, set for next month. Sen. Edward Kennedy, D-Mass., has signaled he will ask Roberts about the issue. "Justice O'Connor cast the deciding vote" in the Tennessee case, Kennedy noted in a July 21 statement. "Over the course of the next several weeks, we must determine whether John Roberts also respects the power of Congress to protect the rights of the disabled." The group ADA Watch/National Coalition for Disability Rights announced its opposition to Roberts, in part because as a private attorney at D.C.'s Hogan & Hartson, he represented Toyota Motor Manufacturing in a case that led the Supreme Court in 2002 to adopt a narrow definition of disabilities covered by the act. Roberts' "distortions" of the record in the Toyota case, the coalition asserts, have made it more difficult since then for ADA plaintiffs to prove they are disabled. But given that Roberts was representing a private client in the Toyota case, predicting his vote in Goodman is tricky, especially because of the broader constitutional issues at stake. As with some past ADA cases, including last year's Tennessee v. Lane, the Goodman case touches on state sovereignty and the power of Congress, and will force Roberts to show his true colors on key Rehnquist Court trends. The ADA's Title II, which bars states from discriminating against the disabled, is at issue in Goodman, as it was in Lane. In that section of the 15-year-old law, Congress specifically said it was abrogating or overriding state sovereign immunity, but the 11th U.S. Circuit Court of Appeals still dismissed Goodman's ADA claims against Georgia. Not only did the suit violate the 11th Amendment prohibition against suits directed at states, the panel said, but the ADA failed the test of "proportionality and congruence" that the Supreme Court established in 1997 for assessing laws passed by Congress under its 14th Amendment civil rights enforcement authority. In Lane, the Court majority said that because access to courts was a high constitutional value, and because there was ample evidence that states were denying that access to the disabled, invoking Title II in the courthouse context was proportional and congruent, and therefore valid under the 14th Amendment. Some analysts think that the importance of access to justice was what prompted O'Connor to abandon the "federalist five" in Lane and vote with the majority to allow states to be sued under the ADA. Advocates also convinced her and the rest of the majority in Lane that if the Court did not embrace the14th Amendment rationale for congressional passage of the ADA, the law could be left without any justification, because it would be hard to argue that the statute was permitted under Congress' commerce clause powers. Prison conditions at issue in Goodman are even further removed from interstate commerce, so a key challenge for civil rights advocates will be to convince Roberts and the rest of the Court that prisoners' rights are as important as courtroom access. "The Court's cases reflect the basic notion that because the state is taking away a prisoner's liberty, it takes on the responsibility to provide for their minimal human needs," says Galanter. "Failing to do that is equivalent to, if not worse than, depriving people of access to the courts." An American Bar Association brief on Goodman's behalf also argues that the treatment of inmates is "an integral part of the administration of justice in this country," so it fits completely into the rationale of Tennessee v. Lane. The ACLU's Alexander thinks that argument has been amply made in the briefs filed in the case, especially considering that the Eighth Amendment bars "cruel and unusual" punishment. "There is an incredible history of Eighth Amendment violations involving prisoners with disabilities," she says. "There is failure to provide treatment, and physical conditions that fail to meet basic physical needs." In Goodman's case, his paraplegia often meant that he would spend day and night hours in his wheelchair in his 3-foot-wide cell, sometimes sitting in his own waste because guards were unwilling to assist him. According to his brief, Goodman was unable to take a shower for more than two years because Georgia State Prison's showers were inaccessible to wheelchair users. Goodman, convicted in 1995 on felony charges of aggravated assault and weapons and drug possession, was injured in a 1992 car accident. Lawyers from the Georgia attorney general's office involved in the case declined to comment. In the state's brief opposing review in the case, Georgia Assistant Attorney General David Langford argues that the 11th Circuit "properly analyzed" the state immunity issue relating to the ADA. The state's brief on the merits, as well as any amicus briefs on its side, is due Sept. 22. The "shocking record" of mistreatment of Goodman and other disabled inmates is the main focus of the case, says Galanter. Solicitor General Paul Clement, in a brief also siding with Goodman, writes disdainfully of prison officials' "deliberate indifference that prefers maintaining clean linens to preserving the life of an inmate with a disability." The long history of mistreatment of disabled prisoners, says Alexander, "will hopefully help with Justice Kennedy, but I don't have any basis to predict how Judge Roberts will react." She did note that in 1992, Roberts successfully argued for the Justice Department on the side of a Louisiana prison inmate in Hudson v. McMillian, an Eighth Amendment case involving severe prisoner abuse. "He certainly struck me then as highly intelligent and extraordinarily professional." Galanter's July 29 brief for Goodman on the merits, unlike earlier filings, cites the Hudson case and the Toyota case, both argued by Roberts. But Galanter says the citations were not aimed at Roberts. "It didn't occur to me until you said it" that the cases were argued by Roberts, he says. The Bazelon Center's Burnim says the facts in the Goodman case would have appealed to O'Connor's sensibilities, but Roberts' reaction is more unpredictable. "He might say there is an obvious injustice, but that the federal government is powerless to act. We have no idea where Judge Roberts stands." In cases he has handled as a judge on the U.S. Court of Appeals for the D.C. Circuit — ranging from the fate of a rare toad under the Endangered Species Act to a girl arrested for eating a french fry on the Washington Metro — Roberts has made it clear that sympathetic facts don't sway him. In the end, advocates for the disabled may appeal to Roberts' vaunted judicial "humility," his often-stated eagerness to defer to the elected branches of government. The ADA is an expansive law, but it was passed with broad bipartisan support. Former President George H.W. Bush filed a brief on Goodman's behalf, in which he recalls the "privilege and honor" he had of signing the bill, "intended to signal the end of unjustified segregation and exclusion of persons with disabilities from mainstream American life." Goldstein & Howe's Russell thinks recently released documents from Roberts' years in the executive branch offer hopeful signs that Roberts' instinct will be to uphold the ADA in Goodman. In a 1984 memo, which, ironically, has been criticized by civil rights groups, Roberts wrote that Congress had the power under the 14th Amendment to restrict busing as a remedy to school segregation. If Roberts believed Congress could do that, Russell reasons, he might also find that Congress has the 14th Amendment power to enact the ADA's Title II. But that still might not be enough to win Roberts' vote, says Russell. "Where the rubber meets the road is whether Roberts thinks Congress made the wrong call" in exposing states to suits under the ADA. Source: Legal Times, 8/8/05 Reorganization of RSA In mid-July Office of Special Education and Rehabilitative Services (OSERS) Assistant Secretary John Hager sent out the following letter that discusses the reorganization of RSA. He foresees the new structure making RSA more responsive to stakeholders and more efficient. An interesting aspect of this is that there will be a team of individuals assigned to each state for state monitoring purposes. Each state team will be led by a state liaison, and that person will be the single point of contact for the state agency and independent living centers in the state. It also seems that this reorganization will result in more uniform policy decisions from RSA. As you may recall, at times in the past different RSA regional offices issued rulings that were in conflict with one another and with national RSA policy. Often these decisions were detrimental to CRPs. Hopefully this reorganization will lessen this. Secretary Hager's letter: As you may know, the Rehabilitation Services Administration (RSA) in the Office of Special Education and Rehabilitative Services (OSERS) in the Department of Education is implementing a reorganization and restructuring of RSA. I am writing to share information with you about the reorganization, our plan for improving accountability, monitoring and technical assistance, and our focus on customer service. RSA's new structure provides each state agency with a single point of contact and a team of program, fiscal, data analysis, and technical assistance experts to help state agencies meet their statutory responsibilities and improve management and service performance. To help explain how this will work, I am attaching a chart of RSA's new organization, and a description of how the new structure will function and how RSA will implement its redesigned monitoring process. The documents describe how key partners and stakeholders in vocational rehabilitation are involved in the process. Our goal is to continue to make RSA a high performing agency that contributes significantly to improving the employment status of individuals with disabilities and enhances their ability to live as independently as possible. The changes in RSA's organization are necessary to improve our efficiency and effectiveness in serving you. I believe that as you learn more about the changes we are making at RSA, you will share our optimism for the agency and our confidence in its ability to improve the lives of individuals with disabilities. This restructuring is effective on October 1, 2005. He also sent the following executive summary that explains the new structure: The new RSA organizational structure will improve the administration of RSA programs through greater program efficiencies, unified and consistent program and policy implementation, and integrated program planning. In anticipation of the implementation of the new organizational structure effective October 1, 2005, RSA has been working with state directors and stakeholders on the development of a new monitoring process. The new monitoring process will result in more effective monitoring, greater accountability, improved technical assistance to state agencies, and increased collaboration with RSAs stakeholders. The new organizational structure has two major divisions: the State Monitoring and Program Improvement Division (SMPID) and the Training and Service Programs Division (TSPD). The SMPID will more effectively monitor by using the human and technical resources required to perform compliance and performance reviews, and provide technical assistance to all state agencies and independent living centers. Specifically, there will be a team of individuals assigned to each state with one or more representatives from each of five functional units: vocational rehabilitation (VR) program, fiscal, data collection and analysis, independent living (IL), and technical assistance. Each state team will be led by a state liaison, and that person will be the single point of contact for the state agency and IL centers in the state. The TSPD will administer the majority of RSA's discretionary and training grants and service programs. Grants planning will be strategically linked to state program improvement. Monitoring and evaluation activities will drive discretionary and training investments. Findings and data from discretionary projects will help guide program improvement. RSA has been planning for the development of a new monitoring process since early April. RSA refers to the redesign process as the Monitoring Redesign Initiative (MRI). Its goal is to create a new RSA monitoring system that builds on the most effective aspects of the current system. In August, RSA is conducting a monitoring conference to discuss the new monitoring process with stakeholders and allow them to provide their input. After the conference RSA will complete its development work and will begin to implement the new monitoring process. This will involve several steps:
From: News From the Capitol, 7/21/05. Appeals Court Upholds EEOC Disability Suit against Sears for Second Time CHICAGO — The US Court of Appeals for the Seventh Circuit, sitting in Chicago, has reversed a lower court decision which granted a judgment without trial in favor of Sears Roebuck in a case brought against the retailer by the US Equal Employment Opportunity Commission (EEOC) under the Americans with Disabilities Act (EEOC & Keane v. Sears Roebuck & Company, 7th Cir. Nos. 04-2222 and 04-2493, 8/10/2005). A previous judgment by the lower court in favor of Sears in the same case had also been reversed by the Court of Appeals in 2000. The case was originally filed by the EEOC in June 1997. It alleged that Sears discriminated against a lingerie saleswoman in the giant retailer's Calumet City, Illinois, store by refusing to provide her with a reasonable accommodation necessitated by medical conditions which prevented her from walking more than short distances (EEOC v. Sears Roebuck & Co., N.D. Illinois No. 97 C 3971). After Sears' refusal to accommodate her, the employee gave up her job. The U.S. District Court for the Northern District of Illinois then held that no reasonable jury could find that the saleswoman was disabled and entered judgment in favor of Sears without a trial. The Court of Appeals overturned that judgment in 2000 (See EEOC & Keane v. Sears Roebuck & Co., 233 F.3d 432 - 7th Cir. 2000), and sent the case back to the District Court. Sears renewed its motion for judgment, and the District Court - after the Supreme Court's 2002 decision in the Toyota Motor Manufacturing v. Williams case (534 U.S. 184) - again entered judgment without trial and in favor of Sears. EEOC again appealed. In the new 32 page opinion by Chief Judge Joel M. Flaum, again reversing the judgment and sending the case once more back to the District Court, the Seventh Circuit paved the way for the trial of the case before a jury: "Our task has not been to determine whether Keane was disabled when she worked at Sears, whether Sears was aware of her disability, whether Sears reasonably accommodated Keane's disability, or which party caused the break-down of the interactive process." Judge Flaum continued: "Rather, we have merely concluded that there is sufficient evidence to allow each of these questions to be presented to a jury. Accordingly, we REVERSE the entry of summary judgment in favor of defendant-appellee Sears and REMAND for proceedings consistent with this opinion." Circuit Judges Michael S. Kanne and Ann C. Williams joined in the Court's unanimous decision. EEOC attorney Gail Coleman and the agency's Appellate Services division were on the brief in the Seventh Circuit, and Ms. Coleman presented the case at oral argument before the Court on May 10, 2005. The Seventh Circuit's opinion is dated August 10, 2005, and is available on the Court's web site. John Hendrickson, EEOC Regional Attorney in Chicago said, "Our office in Chicago and our appellate staff in Washington have been pressing this case for eight years because, in our judgement, Sears intentionally and illegally discriminated against a disabled employee when it would have been easy to accommodate her. We have always believed this is a case that must be ultimately decided by a jury - that the employee deserves her day in court. The Seventh Circuit has made it clear that day now is going to be coming sooner rather than later." Hendrickson noted that this is the second recent significant set-back here for Sears in EEOC lawsuits brought against it under the Americans with Disabilities Act (ADA) and challenging the company's compliance with the ADA requirement that it provide reasonable accommodations to disabled employees. On August 2, 2005, EEOC announced that Judge Wayne R. Anderson of the Northern District of Illinois had denied Sears' motion to dismiss in EEOC v. Sears Roebuck & Co, N.D. Illinois No. 04 C 7282, an ADA lawsuit filed November 10, 2004. In that 2004 case, EEOC is challenging Sears' practice of inflexibly firing employees under its one-year worker's compensation or medical-disability leave policy, and Judge Anderson wrote, "As for the class allegations, the Complaint alleges that Sears 'maintained an inflexible worker's compensation one year leave policy which does not provide for reasonable accommodation of employees with disabilities.' We find that the issue of whether defendant's leave policy fails to accommodate its disabled employees is an issue upon which defendants have been given notice and is a claim for which [EEOC is] entitled to discovery." EEOC is the federal agency charged with the administration, interpretation and enforcement of Title VII of the Civil Rights Act of 1964, as amended, which prohibits employment discrimination based on race, color, religion, sex, pregnancy or national origin. The EEOC is also responsible for enforcing the Age Discrimination in Employment Act of 1967, as amended; the Equal Pay Act of 1963; and the Americans with Disabilities Act of 1990, which prohibits discrimination based on disability. More information about the EEOC and the laws it enforces can also be found online. The US Equal Employment Opportunity Commission John C. Hendrickson, EEOC Regional Attorney (312) 353-8551 Diane Smason, EEOC Supervisory Trial Attorney (312) 353-7526, TTY: (312) 353-8551 Source: EEOC press release Extended Leave Can Be Aspect of Accommodation By Arthur F. Silbergeld and David A. Lewis An extended leave of absence as an accommodation for a disability apart from the statutory family or medical leave laws has been the subject of intense litigation in recent years. With increasing frequency, courts are deciding whether extending a leave of absence beyond the period required by law (for example, the Family and Medical Leave Act) or the employer's policy is reasonable. The Americans With Disabilities Act (ADA) prohibits employment discrimination against a qualified individual with a disability that substantially limits one or more major life activities. The law requires employers to make "reasonable accommodations" to otherwise qualified but disabled employees that enable them to perform the essential functions of the job. The statute sets forth several examples of what are considered reasonable accommodations, including job restructuring, modified work schedules, reassignment to a vacant position or making existing facilities more readily accessible to disabled employees. Employers are not required, however, to extend such accommodations that would cause an undue hardship for the employer. The statute defines such a hardship as any action requiring significant difficulty or expense in light of the nature and cost of the accommodation and the employer's overall financial resources. 42 USC A7 12102(2). Courts have been asked to decide questions such as:
CASES RULING LEAVE IS REQUIRED In upholding extended leave as a reasonable accommodation, courts have held that extended medical leave may be a reasonable accommodation if it does not pose an undue hardship and if it will permit the employee eventually to perform the essential functions of her position. Nunes v. Wal-Mart Stores,164 F.3d 1243, 1247 (9th Cir. 1999). If an employer cannot show that an extension of leave would impose an undue hardship, additional leave would be a reasonable accommodation. Cehrs v. Northeast Ohio Alzheimer's Research Ctr., 155 F.3d 775 (6th Cir. 1998). For example, medical leave could be a reasonable accommodation for a union employee undergoing experimental cancer treatments. Wells v. District Lodge 751, 5 Fed. Appx. 605 (9th Cir. 2001). A reasonable accommodation could include a one-month leave of absence and subsequent leave extensions when a disabled employee offered evidence tending to show that her leave would be temporary and would allow her doctor to design an effective treatment program for her. Criado v. IBM Corp.,145 F.3d 437 (1st Cir. 1998). An employer is required to affirmatively assist an employee who becomes disabled while employed. Thus, an employee's failure formally to request an accommodation does not absolve the employer of its obligation reasonably to accommodate its employees' disabilities. Kimbro v. Atlantic Richfield Co., 889 F.2d 869 (9th Cir. 1990). CASES THAT REJECT LEAVE Courts are not, however, always willing to grant extended leave as a reasonable accommodation. When a request for additional leave contains only a vague estimate of the date the employee could return to his job (for example, one to three years in the future), this amounts to a request for indefinite leave and is not a reasonable accommodation. Walsh v. United Parcel Service, 201 F.3d 718 (6th Cir. 2000). In addition, an employer is not required to continue to grant extended medical leave if the employee cannot provide an expected duration of the impairment or any expected date of return. Harris v. Circuit Court, 21 Fed. Appx. 431 (6th Cir. 2001). An employer is not required to accommodate an employee who suffered from a prolonged illness by allowing him an indefinite leave. Nowak v. St. Rita High School, 142 F.3d 999 (7th Cir. 1998). A policy of termination after one year would not violate the ADA if it does not differentiate between disabled and non-disabled employees. However, it must be applied uniformly to all employees. If this standard is met, no leave extension would be required. Gantt v. Wilson Sporting Goods, 143 F.3d1042 (6th Cir. 1998). Under some circumstances, an employer may be required to hold a position open for some duration, but when the employee cannot state that he could resume his job or the equivalent, there is no need for indefinite leave. Watkins v. J&S Oil Co. Inc., 164 F.3d 55 (1st Cir. 1998). Although there is no per se rule that an indefinite or lengthy leave is unreasonable, such a leave may be especially reasonable if the employer has a sizeable work force, with high turnover and fungible employees. Norris v. Allied Sysco Food Services, 948 F. Supp. 1418 (N.D. Calif. 1996). DUTY TO DETERMINE FEASIBILITY As discussed above, the duty under the ADA to make reasonable accommodations does not require an employer to hold an injured employee's position open indefinitely while the employee attempts to recover, nor does it force an employer to investigate every aspect of an employee's condition before terminating him based on his inability to work, but at the very least, an employee who proposes an accommodation while still on short-term leave triggers a responsibility on the employer's part to investigate that request and determine its feasibility. An employer who fails to do so, and instead terminates the employee based on exhaustion of leave, has discriminated against the employee "because of" disability within the meaning of the ADA. Parker v. Columbia Pictures Industries, 204 F.3d 326 (2d Cir. 2000). The ADA, however, does not require an employer to wait for an indefinite period for an accommodation it has made to an employee to achieve its intended effect. Instead, reasonable accommodation is a decision that can, either currently or in the immediate future, enable the employee to perform the essential functions of the job. Wood v. Green, 323 F.3d 1309 (11th Cir. 2003), cert. denied, 124 S. Ct. 467 (2003). An accommodation that eliminates the essential function of a job is not reasonable, and an employer is not required to wait indefinitely for an employee to return to work. Smith v. Blue Cross/Blue Shield of Kansas Inc., 102 F.3d 1075 (10th Cir. 1996), cert. denied, 118 S. Ct. 54 (1997). In Ragsdale v. Wolverine World Wide Inc., 535 U.S. 81 (2002), although proper notice required by a US Dept of Labor regulation was at issue, the court found that, if the employer's leave program exceeds the12 weeks of leave required by the FMLA, the failure to give proper notice may be irrelevant. In Ragsdale, when cancer kept the employee out of work, the employer granted the employee 30 weeks of unpaid sick leave in one year. When the employee's condition persisted and she failed to return to work, the employer terminated her. The employee argued that the leave did not count against her FMLA entitlement because the employer failed to notify her that 12 weeks of the absence would count as her FMLA leave. The court determined that the employee was not entitled to additional FMLA leave. REASSIGNING OR REINSTATING Reassignment does not constitute a "reasonable accommodation" under the ADA when a position comparable to the employee's former placement is available, but the employee instead is assigned to a position that would involve a significant diminution in salary, benefits, seniority or other advantages that the employee possessed in a former job. Norville v. Staten Island University Hospital, 196 F.3d 89 (2d Cir. 1999). Although a reasonable accommodation under the ADA could include Reassignment to a position if it becomes vacant "within a reasonable amount of time," six months is too long when the employer does not know at the time of the termination that the job would become available. Boykin v. ATC/Vancom of Colorado, 247 F.3d 1061 (10th Cir. 2001). A determination of undue hardship is based on an individualized assessment of current circumstances that show that a specific reasonable accommodation would cause significant difficulty or expense. It should be based on several factors, including the nature and cost of the accommodation needed; the overall financial resources of the facility making the accommodation, the number of persons employed at the facility and the effect on expenses and resources of the facility; the overall financial resources, size, number of employees and type and location of facilities of the employer; the type of operation of the employer, including the structure and functions of the work force, the geographic separateness and the administrative or fiscal relationship of the facility involved in making the accommodation to the employer; and the impact of the accommodation on the operation of the facility. 42 U.S.C. A7 12112(b)(5)(A); 29 C.F.R. 1630.2(o). Whether the employee's position must be kept open or the employee restored to an equivalent position depends on whether it would pose an undue hardship. The ADA and the California Fair Employment and Housing Act regulations are silent as to whether an employee on disability leave must be restored to the same job. According to the Equal Employment Opportunity Commission enforcement guidance, the employee must be returned to the same job unless holding the position open would be an undue hardship. Even if it would be an undue hardship to the employer to hold the position open, the employer must place the employee on leave in a vacant equivalent position for which he is qualified during the remainder of leave, and then when he returns (absent undue hardship). If no vacant equivalent position is open, then he must be given a lower-level position for which he is qualified. Continued leave is not required if a vacant position at a lower level is not available. There is no obligation to create a new position. The California Family Rights Act requires reinstatement to the "same or comparable" position. "Comparable" is defined the same as "equivalent" under the FMLA. The position must be "virtually identical to the employee's original position in terms of pay, benefits and working conditions, including privileges, perquisites and status. It must involve the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility, and authority. It must be also performed at the same or geographically proximate work site from where the employee was previously employed. It ordinarily means the same shift or the same or an equivalent work schedule. It has the same meaning as the term 'equivalent position' in the FMLA and its implementing regulations." 2 CCR A7 7297.0(g) AN EQUIVALENT POSITION Whether the employee's position must be kept open or the employee restored to an equivalent position also depends on whether it would pose an undue hardship. With respect to what is an "equivalent job," there is no specific definition in the ADA or California Fair Employment and Housing Act of what would constitute an equivalent job. Both the FMLA and the California Family Rights Act offer definitions that can provide some guidance. An equivalent position is defined under the FMLA as "one that is virtually identical to the employee's former position in terms of pay, benefits and working conditions, including privileges, perquisites and status. It must involve the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility, and authority." 29 C.F.R. 825.215. Equivalent pay includes any unconditional pay raises and same-pay premiums (such as shift differentials); equivalent benefits include insurance, leave, pensions and the retention of accrued benefits. Equivalent terms and conditions of employment is defined as substantially similar duties, conditions, responsibilities, privileges and status. This includes the same or a nearby work site (with no significant increase in the length of the commute); the same shift or work schedule; and the same opportunity for bonuses, profit-sharing and other payments. It does not include de minimus, intangible or unmeasurable aspects of the job. LIMITS TO ACCOMMODATIONS There are limits to an employer's obligations. An inability to work for a multi-month period removes a person from the class protected by the ADA. Byrne v. Avon Products Inc., 328 F. 3d 379 (7th Cir. 2003), cert denied, 124 S. Ct. 327 (2003). For example, an employer is not obligated to accommodate a request to be left alone and allowed to sit at a desk without any interaction with management until retirement. Mack v. State Farm Mutual Automobile Insurance Co., No. 99-2315, 2000 WL 52888 (7th Cir. Jan. 20, 2000). When an employee's authority has been diminished and responsibilities reduced, the post-leave position is not equivalent to the position held before the employee left. Noyer v. Viacom Inc., No. 97 Civ. 6989, 1998 WL 226172 (S.D.N.Y. May 5, 1998). However, the employee has the burden to prove that other positions offered were not equivalent. Watkins v. J&S Oil Co. Inc., 164 F.3d 55 (1st Cir. 1998). California courts have also required that employers give serious consideration to extended leave and alternate positions as an accommodation. The employer is not required to wait indefinitely, or to offer the best accommodation or the one that the employee prefers. An offer of an alternative position is sufficient if it is the only one available. Hanson v. Lucky Stores Inc., 74 Cal. App. 4th 215 (1999). The determination of whether an extended leave is a reasonable accommodation will be based on several factors and the individual facts of each case. Employers should take each factor into consideration in deciding whether to extend a leave beyond that required by law or company policy. Arthur F. Silbergeld is a partner and an employment litigator in the Los Angeles office of New York's Proskauer Rose. David A. Lewis is an associate in the firm's labor and employment department in New York. Source: The National Law Journal, 8/25/05 HUD Study Shows People with Disabilities Face Discrimination in up to Half of Rental Inquiries New study the most comprehensive disability housing discrimination study conducted WASHINGTON - Today, the US Dept of Housing and Urban Development released a groundbreaking study, Discrimination Against Persons With Disabilities - Barriers at Every Step, that showed people with disabilities are often discriminated against when trying to rent apartments. The agency plans to use the comprehensive study to educate consumers and landlords on their rights as well as provide fair housing advocates with new guidelines and strategies that will allow them to investigate and detect discrimination against people with disabilities. In addition, the study will assist the agency in continuing to monitor the progress of discrimination against persons with disabilities in the Chicago area and nationwide. "The Americans with Disabilities Act, the landmark legislation signed fifteen years ago tomorrow, has made great strides in reducing barriers to people with disabilities in employment, government, and public places." HUD Secretary Alphonso Jackson said. "At HUD, that means breaking down the barriers to affordable rental housing and homeownership that disabled individuals sometimes face. Through a combination of outreach, technical assistance, and enforcement of the Fair Housing Act, we've already accomplished a great deal but, we know more has to be done." In the Chicago-based study, hearing-impaired people were discriminated against approximately 50 percent of the time when using a telephone-operator relay to search for rentals. Mobility impaired people using wheelchairs faced discrimination about a third of the time when they visited rental properties. "We would all like to think we have made more progress in educating landlords about the Fair Housing Act but, this study paints a different picture of the problems faced daily by people with disabilities," said Jackson. "It is imperative that landlords provide people with disabilities the same attention and respect afforded all potential renters. We intend to educate both consumers and landlords about the rights of disabled individuals." The study, conducted for HUD by The Urban Institute, is the most comprehensive effort to date to measure the extent of housing discrimination in the United States against people with disabilities. It specifically provides statistically valid measures of the level of discrimination faced by two groups in the Chicago metropolitan area: deaf persons using a TTY (text-telephone) relay system to inquire about apartments advertised for rent and persons in wheelchairs visiting rental providers in person in response to an advertised rental unit. Discrimination Against Persons With Disabilities - Barriers at Every Step uses "paired testing," where researchers compare the treatment of the person with a disability against a similarly qualified non-disabled person inquiring about the same advertised unit. Analysts look at objective measures, such as whether or not they were told the advertised unit was available, how many units they were told about, and if they were offered an application to complete. Highlights of the study include:
HUD has also placed a greater emphasis on combating disability discrimination in recent years. The Department has invested over $5 million in the Fair Housing Accessibility FIRST initiative, which has trained over 3500 builders, developers, and others on the how to design and construct apartments and condominiums with legally required accessibility features. Earlier this month, the Department announced a landmark settlement of a disability discrimination complaint, where a California developer will pay $1.2 million to help retrofit units and common areas at San Diego condominium complex that allegedly failed to comply with the accessibility provisions of the Fair Housing Act. Under its authority to enforce Section 504, the Department has also conducted over a hundred compliance reviews of recipients of HUD funds in the past eighteen months, resulting in the creation of thousands of accessible dwelling units. Copies of the study are available as a free download on the HUDUSER.org web site or in printed form for a nominal charge by calling 800/245-2691. HUD is the nation's housing agency committed to increasing homeownership, particularly among minorities, creating affordable housing opportunities for low-income Americans, supporting the homeless, elderly, people with disabilities and people living with AIDS. The Department also promotes economic and community development as well as enforces the nation's fair housing laws. Anyone who believes they have experienced housing discrimination should contact HUD at 1 (800) 669-9777 or visit HUD's fair housing web site. Source: VISITABILITY-LIST@LISTSERV.BUFFALO.EDU; 8/18/05 Nursing Home Data by County As many of you already know, the Centers for Medicare and Medicaid Services (CMS) collects extensive data re nursing home residents in Minimum Data Set quarterly reports. In response to question Qa1, listing the number of residents who state they want to reside in the community, is available county by county. This information should assist you to organize a "Money Follows the Person" campaign on a county level. Source: Steve Gold, 7/24/05. Back issues of other Information Bulletins are available online. with a searchable subject archive. 
CMS survey data
Let the countdown begin - Health Care Justice The Task Force Steering Committee has put together a proposed schedule for the public hearings, with the first one beginning on October 5th in the 1st Congressional District. By next Wednesday, August 31st, the Steering Committee is asking for recommendations for cities and/or neighborhoods within each congressional district to have the hearing, and suggestions for locations in these areas that would be good venues to have the hearings at. Please remember that all hearing locations must be accessible and the hearings will begin at 4 pm. Also please keep in mind that your suggestions are going to IDPH. The final decision for hearing locations rests in their hands, not the hands of the Health Care Justice Campaign. Let your views be heard NOW. The last letter writing campaign to the Task Force steering committee was a big hit- we sent out over 100 letters and your recommendations were heard. We are asking that you email your suggestions to Megan detailing the city/ neighborhood, location, and contact information for the location by noon on Tuesday, August 30th. I will then be sending all the suggestions to the Illinois Department of Public Health and these suggestions will be submitted to the Task Force at their next meeting on September 14th. We will continue to keep you posted on all new developments. Thanks for your help, Megan Meagher, Ass't Director Health Care Justice Campaign for Better Health Care 1325 S. Wabash, Suite 305 Chicago, IL 60605 Phone: 312/913-9449 / Fax: 312/913-9559 Illinois Stars for the Future Free Advocacy Training Program The Family Support Network is introducing a series of trainings designed to empower people with disabilities and their family members to become confident, effective advocates for their futures in their local communities, statewide and nationally. The Illinois Stars for the Future program will hold training sessions beginning in November and commencing in June of 2006. The program is free to participate in and a $50.00 stipend will be granted to participants to help offset travel costs. Who can get involved? The Family Support Network is especially interested in empowering inexperienced advocates wishing to grow their skills. The 2005-2006 training year will focus on central Illinois and people living in the following counties are welcome to apply: Adams, Brown, Calhoun, Cass, Christian, Coles, Clark, Cumberland, DeWitt, Douglas, Edgar, Effingham, Green, Hancock, Jersey, Logan, Macon, Macoupin, Mason, Menard, Pike, Montgomery, Morgan, Moultrie, Sangamon, Schuyler, Shelby, and Scott. All trainings will take place in Springfield. What are the training topics? Training topics include: the history of the disability rights movement, educational advocacy, employment, person centered planning, assistive technology, communication, behavior modification, services outside the school setting, how to talk to policy makers, how a bill is passed, organizing and networking. How do I apply? Selections for the 2005-2006 program will be made in late September, so don't delay. If you have questions or need an application, contact the Family Support Network at 309/ 693-8981, or e-mail them. Visit the Family Support Network online. Source: Hot News, Coalition of Citizens with Disabilities in Illinois, 300 E Monroe, Suite 100, Springfield, IL 62701 / (217) 522-7016 (V/TTY) Legislation To Increase Penalties For Disability Parking Abuse Signed by Governor An initiative of Secretary of State Jesse White to address the fraud and abuse of disability placards and license plates was signed into law by Governor Rod Blagojevich. Under White's proposal (HB 1316), those caught improperly parking in a disability parking space could face a fine of up to $500 and a driver's license suspension. It also increases penalties against those who illegally alter or fraudulently manufacture disability placards or plates. "It is unconscionable that able-bodied people would abuse this important program and take parking spaces reserved for persons with disabilities," White said. "I want to thank the Governor and members of the General Assembly for working with me to increase fines and suspend driving privileges for motorists who violate our disability parking laws." Recent sting operations conducted by the Secretary of State's Police Department and other police agencies indicate that many people still consider it worth the risk to abuse the laws reserving parking spaces for persons with disabilities or use a placard or disability plate without the authorized holder present. The proposed legislation, sponsored by State Rep. Kevin McCarthy (D-Orland Park), will do the following:
— Bill Bogdan, Disability Liaison, Illinois Secretary of State, Jesse White Vehicle Services, Special Plates, 708/210-2843 V/TTY Source: GREATLAKES@LISTSERV.UIC.EDU; 8/24/05 | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
