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Oct/Nov/Dec 2000
Southwest DBTAC is a program of ILRU
Volume 4  Issue 2

Table of Contents

Constitutionality of Title II Debated in Garrett

Providing Interpreters:

In Police, Jail & Municipal Court Settings
In Health Care Settings
Uncomfortable Viewing Angle in the Theatres Does Not Violate the ADA in the Fifth Circuit
Federal Court Enforces Mandate to Make Public Housing Accessible
Multiple Chemical Sensitivity Coverage and Accommodations
New Materials, Reports and Documents Now Available
E-Bulletins Availabled from the Southwest DBTAC

Constitutionality of Title II Debated in Garrett

The United States Supreme Court heard oral arguments October IIth on a case which challenges the authority of the Congress to regulate state conduct through Title 11 of the ADA.

The case before the Court is Garrett v. University of Alabama (193 F. 3d 1214). It is a consolidation of two employment cases from the IIth Circuit: one involving an alleged discriminatory demotion of an employee with breast cancer, and another involving a failure to reasonably accommodate an employee with chronic asthma.

Garrett is the latest in a series of cases which challenge the Congressional authority to enact legislation that regulates state conduct by invoking states' sovereign immunity. These cases threaten to seriously diminish the power of Title II to remedy discrimination by state and local governments. 

The "test" that the Court uses in determining the power of Congress to legislate in the face of immunity claims is found in Seminole Tribe of Florida v. Florida (116 S.Ct. 1114). Seminole provides that such laws must contain a clear statement of Congress' intent to abrogate the immunity, and that they must act as a valid exercise of Congressional power.

Of particular concern are recent decisions that indicate a willingness in the Supreme Court to support challenges to Congressional authority to regulate state conduct. In one such case, Kimel v. Florida Bd. Of Regents (120 S.Ct. 631, 2000), the Court acknowledged that the Age Discrimination Act contained a clear statement of Congressional intent, but noted that it exceeded Congress' power under § 5 of the Fourteenth Amendment.

In one recent decision involving Title II, the Court held unanimously that the ADA applied to prisons, but failed to address whether Congress validly exercised its power pursuant to §5 of the Fourteenth Amendment in authoring the legislation.  See Pennsylvania Dept of Correcctions v. Yeskey (118 S.Ct. 1952, 1998).  In Olmstead v. L.C (119 S.Ct. 2176, 1999), a divided Court decided that Title II gave individuals with disabilities the right to decide if they wanted to live in the community rather than an institution.

Court watchers at the oral arguments detail that Justices Breyer, Souter, Ginsburg, and Stevens (who dissented in the Kimel case) appeared supportive of the attorneys for the respondents (here, the plaintiffs in the original actions against the state, Patricia Garrett and Milton Ash).  Justice Breyer noted his support by confronting the lawyer for Alabama (petitioner) with the many references to cases of discrimination offered in the many supportive briefs filed with the Court.  It is just this sort of a documented litany of discrimination that was absent from the record offered before the Court in the Kimel case.

Not surprisingly, Chief Justice Rehnquist, and Justices Scalia, Kennedy, and Thomas were not so kind to the respondents' counsel.  Justice Scalia noted his disdain for the record which offered many instances of discrimination, asking of Garrett counsel Waxman, and Solicitor General Gottesman, “[d]o you think it is proper to leap from these psychological generalizations to the conclusion that the states are acting unconstitutionally?”

The “swing vote” of Justice O’Connor is the only cipher here.   While she has voted with the conservative majority of the court in a series of 5-4 decisions that have supported state’s rights claims (including Kimel), she seemed at least somewhat receptive to the respondents’ arguments, and if not incredulous about the petitioner’s claims, then at least carefully dubious about some of the points they raised.

It is difficult to predict what the Supreme Court will decide in Garrett with its recent fondness for states’ immunity challenges, but given the two recent decisions in Olmstead and Yeskey, it seems unlikely that the justices will completely strip Title II of all of its power to remedy discrimination.
 

Effective Communication

Providing Interpreters in Police, Jail and Municipal Court Settings

The Department of Justice has reached an agreement with three Houston city agencies to improve their policies and procedures for providing "effective communication" for individuals who are deaf or hard of hearing.

This action follows a federal investigation into complaints filed by Rashad Gordon, an individual with a hearing impairment, and Michael Edwards, an individual who is deaf Suits were filed against the city alleging that Houston police officers and city jailers could not, and did not provide effective communication with either complainant.  The city denies the allegations in both complaints.  The settlement agreement ordered the agencies to improve policies.

According to the agreement the Houston Police Department will require that a qualified interpreter is called any time a deaf person who needs an interpreter is involved in a major accident, is suspected of a felony, is arrested, is given an alcohol consumption test or is giving a statement to police.

The City Jail will inform all deaf and hard of hearing people under arrest that they have a right to communication devices and services at every step of the criminal justice process.

The Municipal Court system will guarantee that hearing aids and other communication services will be aval 'Table for deaf people involved in court proceedings, including defendants, interpreters, witnesses, jurors and spectators.

In addition, the Police Department, City Jail and the Municipal Court system will buy telecommunication devices and train their staffs to use the equipment.

The settlement agreement is available on www.usdoj.gov/crt/ada/houston.htm


Providing Interpreters in Health Care Settings

In New York, three health care providers entered into consent decrees that mandate the circumstances, in the health care arena, in which interpreters should be provided and when TTY lines should be established.  The decrees, entered into among a medical center, a community hospital, a large medical practice and the New York State Attorney General's Office will be used in New York to establish model policies and procedures for provision of interpreters.  The decrees address a number of important issues and provide that:

The decrees still allow the providers to make case by case determinations of whether an interpreter is necessary in many circumstances, but require that interpreters be provided in the following circumstances:

(National Disability Law Reporter, Vol. 17, Iss. 8, p.6)


Case Law

The Fifth Circuit Holds that Restricting People with Disabilities to Uncomfortable Viewing Angle Does Not Violate The ADA Lara V. Cinemark USA, Inc.

By Beth Sufian and Jim Passamano

This case was brought in El Paso, Texas, against the Cinemark Corporation.  The plaintiff complained that the accessible seating clustered in the front of a stadium style movie theater did not provide lines of sight comparable to those that other patrons enjoy.  In fact, many patrons with disabilities have found the lines of sight are too "painful" for them to endure while watching a movie.

The District Court had found that patrons with mobility impairments were denied the full and equal enjoyment of the movie going experience in Cinemark theaters, and therefore, as presently configured, the stadium style theaters did not conform to the requirements of the Americans with Disabilities Act.  Cinemark, 1998 U.S. Dist.  Lexis 14447.

As a remedy, Cinemark was ordered to modify 18 of its theaters by moving the wheelchair accessible seating further from the screen, moving the wheelchair accessible seating to a higher tier, and lowering the screen.  It also awarded the plaintiffs reimbursement of attorney's fees and monetary damages of $100 per plaintiff.  Cinemark, 207 F.3d at 78.

Cinemark appealed the decision and the Fifth Circuit Court of Appeals concluded that the term "line of sight" does not necessarily include the viewing angle, which disagreed with the lower court's interpretation. Cinemark, 207 F.3d at 78.  Rather, the Court of Appeals concluded that ct "line of sight" refers only to whether there is an unobstructed view between the accessible seat and the thing being viewed, not the angle at which it is viewed.  Cinemark, 207 F.3d at 78.

Because the Court found that the regulation requires only an unobstructed view, and not comparable viewing angles, the seating in the stadium theaters was in technical compliance with the regulation.  The Court of Appeals concluded the designated seating was in technical compliance because there was an unobstructed view of the screen from the accessible seating, regardless of how uncomfortable or unpleasant the view may be.
 

The text of the ADA Standard in question:

4.33.3 Placement of Wheelchair Locations.  Wheelchair areas shall be an integral part of any fixed seating plan and shall be provided so as to provide people with physical disabilities a choice of admission prices and lines of sight comparable to those for members of the general public.  They shall adjoin an accessible route that also serves as a means of egress in case of emergency.  At least one companion fixed seat shall be provided next to each wheelchair seating area.  When the seating capacity exceeds 300, wheelchair spaces shall be provided in more than one location.  Readily removable seats may be installed in wheelchair spaces when the spaces are not required to accommodate wheelchair users.  EXCEPTION: Accessible viewing positions may be clustered for bleachers, balconies, and other areas having sight lines that require slopes of greater than 5 percent.

Found in Violation of Section 504 of the Rehabilitation Act Pennsylvania Housing Authority 5 Percent Of Public Housing Accessible

By David Kahne

A federal district judge found that the Philadelphia Housing Authority (PHA) has violated HUD regulations for years (24 CFR Part 8) by not enforcing the requirement in the 504 regulations for a percentage of accessible units. ADAPT v. PHA, 98-4609 (E.D. Pa.). The decision calls for 6,968 additional units of affordable, accessible dwellings fully integrated into the community.

The decision has national implications because the same regulations apply to every public housing authority, as well as all others who build or renovate housing with federal funds.  The Section 504 regulations are particularly important because of the significant role of federal financing in the construction of affordable housing.

In Philadelphia, the Housing Authority has 20,000 dwelling units, of which 7,000 are row houses.  The 7,000 are called scattered-site houses to distinguish them from the more common high-rise and mid-rise apartment buildings that make up the majority of public housing.  The scattered site housing is particularly desirable for all PHA tenants, including people with disabilities, because these houses are identical to the houses in which most Philadelphia residents live.

When this case was filed, fewer than 30 of the 7,000 scattered sites (less than one-half of I percent) were accessible for people with mobility impairments.  This was true even though PHA had substantially rebuilt approximately 1,000 of these homes.  The typical gut-renovation cost more than $100,000 per apartment, more than $300,000 per triplex.  Throughout the trial, PHA maintained it was not "feasible" to make more than 22 of these essentially new homes accessible.

The first critical issue concerned the mandate that requires 5 percent of each "project" to be made accessible during renovations.  PHA had proceeded as if a “project” was the set of dwellings that it chose to renovate, so if it renovated I00 units, onl y five needed to be accessible.  The Court rejected that position, recognizing that "project," for purposes of HUD’s regulations, is the same grouping of housing units identified as a "project" for other HUD purposes.  Thus, where a "project" has 1,000 units, and PHA renovates I00 units, then 50 units (not just five) must be made accessible.

The second critical issue concerned the distinction between substantial alterations (akin to new construction, where renovation costs amount to 75 percent of development costs) and so-called "other" alterations.  The court recognized that "feasibility" cannot provide an excuse not to make housing accessible during substantial alterations (or new construction), but only (sometimes) can be an excuse for "other" alterations.  Thus, where a public housing authority newly builds or substantially alters housing, there is a strict mandate to assure accessibility.

These critical holdings apply with equal (if not greater) force to high-rise and mid-rise public housing.  Indeed, during this case it was discovered that the public housing authority had violated the regulations in many of its dwellings that are not scattered sites.  Violations were also found at other housing authorities.

The U.S. Department of Housing and Urban Development, the National Association of Home Builders and the International Code Council have released a document that sets forth the requirements of the Fair Housing Act in “building code language.”  This valuable new resource is available at www.hud.gov/fhefhag.html

Plaintiffs included ADAPT and the local Center for Independent Living, which had spent years fighting this discrimination before suing.  Mr. Kahne, a Houston attorney, was co-counsel with Stephen F. Gold.  Marinda van Dalen also assisted at trial.


Focus on Disability

Multiple Chemical Sensitivity and the Americans with Disabilities Act

Are individuals with MCS covered by the Act?

Both the Department of Justice (DOJ) and the Equal Employment Opportunity Commission (EEOC) have provided guidance on these issues.  There have also been suits brought by individuals with MCS against their employers that have met with varying degrees of success.

Individuals with MCS must be evaluated on a case-by-case basis to determine whether the law covers them.  The outcome will depend on the degree to which their major life activities are affected by the environmental impairment.
 

According to the DOJ guidance:

"Sometimes respiratory or neurological functioning is so severely ciffected that an individual will satisft, the requirements to be considered disabled under the regulation...... In other cases, individuals may be sensitive to environmental elements or to smoke but their sensitivity will not rise to the level needed to Constitute a disability. For example, their major life activity of breathing may be somewhat, but not substantially, impaired. In such circumstances, the individuals are not disabled and are not entitled to the protections of the statute despite their sensitivity to environmental agents.”

The EEOC essentially came to the same conclusion in a policy letter:
"Multiple (-hemical sensitivity is an impairment within the meaning of the ADA. However, the critical issue is whether it rises to the level of being a "disability " for a particular individual.  It would need to be determit ed whether a particular individual's  multiple chemical sensitivity substantially limits a major life activity (e.g., breathing).
 

Does the ADAAG require that new buildings use materials that are environmentally friendly?

The DOJ did not, in the 1994 Americans with Disabilities Act Accessibility Guidelines, address the barriers that people with MCS face in the built environment.  The types of paint and other materials used in a facility can create tremendous barriers for individuals with environmental disabilities.  In some of the technical guidance accompanying the regulations, the DOJ said that specific regulations about environmental illness would be omitted until several government agencies considered this topic further.
 

Reasonable accommodations

One of the issues that surfaces frequently, in the employment, public services and public accommodations arena is whether individuals can be asked to refrain from wearing fragrance at work, public events and other gatherings sponsored by any of these entities, as a reasonable accommodation in employment, or a modification of policy by a business or a public entity.  Both the EEOC and the DOJ have taken the position that such an accommodation or modification is not a reasonable one:

"[A] public entity is not required to prohibit use of perfume or other scented products by employees who come into contact with the public because such a requirement would not be a 'reasonable' modification to its personnel policies, as is required by Title II......

There have been a few cases that have been brought by individuals with MCS.  In three of the cases, MCS was found to be a disability.  The other two cases demonstrate the barriers that individuals with MCS may encounter in bringing suit, which is obtaining recognition for the tests that verify the existence of MCS.
 

Case Summaries

Keck v. New York State Office of Alcoholism & Substance Abuse Services (I 3 NDLR ¶ 66, NDNY 1998) An employee with tobacco smoke and perfume sensitivity was unable to show that she was qualified for her job, although, the court did hold that an issue existed as to whether the employee's sensitivity to perfume substantially limited her ability to work.

University of Cal., Berkeley (11 NDLR ¶171, OCR, Region IX, 1997).  A university librarian, who has multiple chemical sensitivity (MCS) alleged that her employer failed to reasonably accommodate her disability.  The university did not dispute that she had MCS, but the accommodations requested.  The university was not required to allow the employee to work at home or at another library on campus, because to do so would entail significant transportation time and cost.

Frank v. State of N.Y. (972 F.Supp. 130, (N.D. NY 1997) Three former employees alleged the employer failed to accommodate their MCS.  The court held that "the theory underlying MCS is untested, speculative, and far from general acceptance in the medical or toxicological community."

Coffey v. County of Hennepin (13 NDLR ¶193, D. Ct.  Minn. 1998) The court was not satisfied with the current state of testing for MCS; "The salient problem with MCS is that there is no consistent and specific effect from exposure to any specific chemical.  This does not allow for any objective test for any disease entity which might be caused by the chemicals as indicated by the theory of MCS."

For information regarding MCS, visit our Web site at www.ilru.org/dbtac.

Resource on MCS available on the web: www.ilru.org/ilnet/files/readings/mcs.txt

Resource on MCS available on the web:  www.ciin.org/what.htm
 

UPDATES

From the Access Board

Play Area Guidelines Published
On October 18, 2000, the Board published accessibility guidelines for newly built or altered play areas under the Americans with Disabilities Act (ADA).  The guidelines are one of the first of their kind in providing a comprehensive set of criteria for access to play areas.

For more information, visit their Web site: www.access-board.gov.
 

Board and AIA Launch On-Line Training Course
The Board and the American Institute of Architects (AIA) recently unveiled a web-based education course on the Board's ADA Accessibility Guidelines (ADAAG).  For more information visit: www.access-board.gov/news/AB-AlAcourse.htm
 

Published by the Access Board

From the Equal Employment Opportunity Commission

EEOC Issues: Final Rule on Mitigating Measures Under the ADA.  To view the press release visit their Web site at www.eeoc.gov/press/6-8-OO.html, or request a copy from the Southwest DBTAC by calling 800-949-4232.

EEOC Issues: Policy guidance implementing Executive Order 13164, which requires all federal employers to establish effective written procedures for processing requests for "reasonable accommodation" by employees and applicants with disabilities.


MATERIALS AVAILABLE
All of the publications listed are available free of charge from the Southwest DBTAC by calling 800-949-4232.

Published by the Department of Justice

Materials are also available in Spanish and several Asian languages.

The Southwest DBTAC offers monthly E-bulletins that provide ADA updates via e-mail:
General: provides updates on activities related to the implementation of the ADA and other disability related laws. Legal: provides in-depth reviews of litigation that is occurring on a national and regional level. Human Resource: provides information on ADA related topics specific to employment.

To subscribe, visit www.ilru.org/dbtac/tojoinbullet_htm, or call 800-949-4232
 

ABOUT THE DBTAC..... Published by the Southwest DBTAC, the Southwest DBTAC News is issued on a quarterly basis to update readers on implementation of the Americans with Disabilities Act.  The newsletter is available for dissemination throughout federal Region VI, which consists of Texas, Oklahoma, Arkansas, Louisiana and New Mexico.

The Southwest DBTAC is the leading source for ADA technical assistance and training in Region VI.  Project staff with expertise in all areas of the ADA are available via the toll-free hotline (800) 949-4232.  Training or Technical Assistance are also available in Spanish.  Many materials are available in English, Spanish, and several Asian languages.

Based at Independent Living Research Utilization (ILRU) a program of TIRR in Houston, Texas, the Southwest DBTAC is funded by the National Institute on Disability and Rehabilitation Research (NIDRR), an agency of the Department of Education, under grant #HI33D60012, to provide training and technical assistance on the ADA.  The SWDBTAC is authorized by NIDRR to provide information, materials, and technical assistance on the ADA.  NIDRR is not an enforcement agency.  The information contained in this newsletter is intended solely as informal guidance and is neither a determination of your legal rights or responsibilities under the Act, nor binding on any agency with enforcement responsibility under the ADA.  Highlights and other ADA information from this newsletter are available at: www.ilru.org/dbtac.

Publication Team: Tajauna Dunning, Carri George, Aaron McCullough, Maria Romero, Wendy Wilkinson

This letter is available in alternate formats.  The Southwest DBTAC welcomes any comments on articles and any suggestions for future articles.

Southwest DBTAC NEWS is a publication ofthe ILRU Program.  Since 1977, ILRU has served as a national center for information, training, technical assistance and research on independent living.  ILRU is a program of TIRR.

You are welcome to reproduce all or part of the text on this web page crediting the Southwest ADA Center as your source. We would greatly appreciate receiving a copy of your use of our material.

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