Law and People with Disabilities

Week of 10-17-11

17 October

Job Accomodation Network: askjan.org A useful web site. View accomodations by disability, look up different topics.
WFEA - may be eliminated by Senate Bill 202 (part of tort reform: eliminate damages under fair employment law), but for the time being it provides a procedural tool to seek lost wages, damages, etc.
Harassment claims: would a reasonable person feel that there is pervasive workplace hostility. Only some circuits have recognized this as a cause of action with respect to disabilities. The hardest thing to prove is whether the harrasment is sufficiently pervasive in the workplace. It gets easier if there's a tangible injury: more than just emotional harm.
QIWD: qualified individual with a disability.
Title II of the ADA: discrimination by public entities (state and local government). QIWD cannot be excluded from participation in or denied the benefits of...
The right is access to the program, not necessarily physical access to any place (so meetings can be relocated to accessible facilities, or a trial can be relocated, etc.).
No surcharges allowed.
Auxiliary aids and services: effective communication. There are a lot of options here.
Interesting concept: a "deaf interpreter." There are lots of deaf folks who also have cognitive deficits and/or poor literacy. You might need someone who actually is deaf (and therefore can figure out what the person is trying to say) and then ASL that to an ASL --> English interpreter.
Unsurprisingly, there are interpreters of varying quality. How good an interpreter do you have a right to?
Paratransit: riders should be able to get next day service. Capacity constraints can't limit the availability of it. There's a movement towards fixed-route systems (reliable, in terms of timing).
You might qualify for this on the basis of temperature sensitivity or cognitive disability, by the way.
All MSN and MKE buses are accessible.
It's hard (i.e., nearly impossible) to have a job with fixed hours and use paratransit because rides can be up to 20 minutes early or late.
Title III of the ADA: public accomodations
Title II, III: no requirement to exhause administrative remedies, so filing can be a sort of quick-ish path to settlement.
There's a growing trend in debate/controversy about what counts as a service animal.
The physical access guidelines can be pretty confusing (ADA Accessibility Guidelines for Buildings and Facilities (ADAAG)). There's a lot of stuff out of sync, because organizations have picked the standards for one year and stuck with that. Soon everyone will be on the 2010 standards, though.
Standing is a concern- employers worry that litigation-happy folks with disabilities just go around and file lawsuits. And indeed, there are advocacy groups who hand out pleading papers, because these acts are individually enforced, not handled through general oversight. Lawyers get picked on as ambulance chasers because they can get attorney fees.
Apparently Clint Eastwood has been active in fighting claims here (he owns some rental properties or something).
Anyway, standing: "visited and plans to return to the property to avail himself of the goods and services..." Harty v. Simon Prop. Group, L.P., 2010 WL 5065982 (S.D.N.Y. Dec. 7, 2010). Just being an "ADA tester" and reiterating the standard language may not be enough.
Architectural Barriers Act (1968): the first big law addressing disability. Doesn't get used much any more.
Rehabilitaion act (1973): discrimination protections for disability.
IDEA (1975)
Fair Housing Amendments (1988)
ADA (1990)
Fair Housing Amendments Act (also WI Open Housing Act: parallel to federal law). Same definition as ADA.
There's tenant bullying, and the use of "poses a direct threat" logic to displace desabled tenants. One recurring flavor of harassment is seniors vs prople with mental illness.
In your house, you can have pretty much any service animal. Out in public, it's pretty much dogs or nothing (some chance of miniature horses).