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Southwest ADA Center News - Winter/Spring 2003

Greetings from DLRP!

The Southwest ADA Center is the new name for the Southwest Disability and Business Technical Assistance Center (SWDBTAC), one of the 10 Disability and Business Technical Assistance Centers serving the nation. While our name has changed and the scope of our work has expanded our superior services remain the same!

DLRP has been providing services in the Southwest region for 12 years and is the Southwest's leading source for expertise on the ADA and other, complementary disability-related legislation. Our mission is to promote:

The mission is carried out through three core services:

Inside:

 

Demystifying reasonable accommodation

Providing reasonable accommodation is a key requirement of the employment provisions of the Americans with Disabilities Act (ADA). The concept is not defined in the statute nor the regulations. The statute illustrates the concept by listing examples of accommodations that may be reasonable. The list includes: making existing facilities accessible to individuals with disabilities, job restructuring, part-time or modified work schedules, reassignment to a vacant position and acquisition, or modification of equipment or devices. 42 U.S.C. § 12111(9). This was done because to clearly cast a concrete definition would make it ineffective in accomplishing its purpose_changing workplace practices and structures in a way that permits an "otherwise qualified" individual with a disability to perform a job. The determination of reasonable accommodation is made on a case-by-case basis, as the ADA covers a broad range of persons with many different types of disabilities. Therefore, the types of accommodation that will work in any given situation will be uniquely dependent on the type of disability involved and the requirements of the job.

Who then decides what is a reasonable accommodation? The employer and the employee with a disability must engage in an interactive process to determine what change can be made to allow the person to perform the essential job functions without imposing an undue hardship on the employer. An employer is not required by the ADA to give an employee the best accommodation or the particular accommoda

tion requested by employee. The accommodation will vary greatly depending on the individual's limitations that necessitate the need for the accommodation, the job in question and the resources of the employer. If the employer and employee cannot agree and the employee takes action then what constitutes a reasonable accommodation could ultimately be decided by a court.

Application of the concept to certain scenarios often helps illustrate points. The following cases look at some of the accommodations deemed reasonable by the courts.

Leave Time

The factors to be considered in whether requests for leaves of absence are reasonable accommodations under the ADA include: 1) whether the employee provides an indication as to when they might be able to return to work versus requesting that the job be held open indefinitely and; 2) where the employee's absences from work are erratic and unexplained. Garcia-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638 (1st Cir. 2000).

A leave of absence for nearly five months of intensive treatment was a reasonable accommodation for an employee with posttraumatic stress disorder related to his service in Vietnam because such leave was less accommodating than employer's own policies required. "The fact that employees' duties were covered by co-workers did not establish undue hardship given that employer was global operation with over 50,000 employees." Rascon v. US West Communications, Inc.,143 F.3d 1324 (10th Cir. 1998).

Working at Home

An employer is not required to allow workers with disabilities to work at home, where their productivity inevitably would be greatly reduced. Vande Zande v. State of Wisconsin Dept. of Administration, 44 F.3d 538 (7th Cir. 1995). However, it is important to remember that this ruling was specific to this case given the individual job requirements that necessitated physically being in the office. Given the advances in technology and the number of telecommuters in the workforce today, permitting individuals with disabilities to work at home would be an easy accommodation.

Reassignment to Another Job

The ADA requires that employees with disabilities be transferred to a vacant position for which he or she is qualified, as an accommodation. However, the employer is under no duty to keep an employee on unpaid leave indefinitely until such position opens up; moreover, an employer is not required to create a new position for an employee with a disability. Monette v. Electronic Data Systems Corp., 90 F.3d 1173 (6th Cir. 1996).

An employer does not have to create a light-duty position or a new permanent position for an employee with a disability; however, if the employer has a vacant light-duty position or vacant permanent position for which an employee with a disability is qualified, it would be a reasonable accommodation to reassign an employee to that position. Howell v. Michelin Tire Corp., 860 F.Supp. 1488 (M.D.Ala. 1994).

Job Restructuring and Physical Modifications

Restructuring a courthouse security room in which the employee worked, the purchase of an ergonomic chair and the modification of their work schedule accommodated an employee with head, neck and back problems. Stewart v. County of Brown, 86 F.3d 107 (7th Cir. 1996).

Reassignment from a full-time third shift stocker position to a part-time position with flexible hours was a "reasonable accommodation" for an employee's alleged inability to drive at night due to head injury. Pattison v. Meijer, Inc., 897 F.Supp. 1002 (W.D.Mich.1995).

Every day, on the job, employers accommodate employees without disabilities in a number of different ways. All employees use different means to accomplish job tasks. Supervisors often use different methods to work with employees to develop successful working relationships; they identify their strengths, weaknesses and talents and find ways to work with them in a manner that helps them effectively perform their job. The ADA simply asks that employers officially implement reasonable accommodation for "otherwise qualified employees" with disabilities that request them. The reasonable accommodation mandate simply asks that people with disabilities be allowed to perform job functions in a different manner or use other processes or approaches in accomplishing job tasks as long as they are still performing essential job functions and an undue hardship is not being imposed on the employer.

California v. Hason: Is Title II in danger?

Last term, Title II of the Americans with Disabilities Act (ADA) suffered a blow when the United States Supreme Court ruled in Barnes v. Gorman that a person could not recover punitive damages for violations of Title II. The possibility of punitive damages had acted as a serious incentive for a public entity to comply with the ADA.

Another threat to Title II remedies will be posed this term when the Supreme Court will review whether an individual can sue a state in federal court for a violation of Title II in Medical Board of California v. Hason. California had denied Dr. Hason a medical license because of his mental illness. Dr. Hason sued the medical board along with several state officials in federal district court for damages and injunctive relief (granting him his license). The district court dismissed the suit, citing the Eleventh Amendment, which prohibits private parties from suing states in federal court. This immunity can only be overridden when Congress legislates its intention to supersede it in a manner that is valid under Congress' enumerated powers set forth in the Constitution. The Ninth Circuit court of appeals reversed, holding that Congress had validly abrogated Eleventh Amendment immunity with Title II.

Two years ago, the Supreme Court had held that state employees could not sue their employers in federal court for money damages under Title I in Board of Trustees of University of Alabama v. Garrett. Even though the Supreme Court had the opportunity then to review Title II, it expressly declined to do so. Many federal courts used the Garrett decision to hold that Congress had also failed to properly abrogate the state's immunity with Title II. The Ninth Circuit's ruling for Hason conflicted with the holdings of its sister circuits.

One of the issues that the Supreme Court will focus on is whether Congress had enacted Title II in response to unconstitutional state discrimination. Under the Constitution, states can discriminate on the basis of disability as long as the discrimination is rationally related to some legitimate state interest. In enacting the ADA, Congress had provided a history of state transgressions, which the Supreme Court discounted in Garrett. The Supreme Court observed that most of the transgressions involving the states were outside the scope of employment (Title I) and involved the scope of Title II and III. However, nothing guarantees that the Supreme Court will view this history of transgressions that Title II was meant to address as being unconstitutional violations.

Even if the Supreme Court rules against Dr. Hason, Title II is still applicable to the states. The United States can always enforce the ADA by the DOJ bringing a lawsuit against the state. What this potential ruling would affect are the remedies available to a private individual under Title II. One possible outcome of the decision could be that Dr. Hason may not be able to recover damages but he may still be granted an opportunity for a medical license since he had also applied for injunctive relief. Even though the states might end up being immune to any money damages, presumably state officials will still have to obey any court order that requires them to obey federal law. Of course, state sovereign immunity does not extend to any lesser entity such a county, or municipal government or program.

CONTEST! PRIZES!!

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(Photo by Mark Derry)

Be one of the first 25 people to call Lea Marek on the DLRP toll free number (800-949-4232) with the correct answer and win a DLRP gift packet!

News from the Feds

Access Board Drafts Public Rights-of-Way Guidelines:
The Access Board released draft guidelines last June which address access to public streets and sidewalks for persons with disabilities. Earlier, the Board held a public meeting, providing an opportunity for the public, including industry groups, persons with disabilities, civil engineers, local governments and other interested parties, to weigh in on a draft of the guidelines.

Access Board Approves ADA and ABA Guidelines:
At its September meeting, the Board approved the text of a final rule to update its guidelines for facilities covered by the Americans with Disabilities Act (ADA). The rule also updates requirements for federally funded facilities covered by the Architectural Barriers Act (ABA). The revised ADA and ABA accessibility guidelines will feature updated scoping and technical requirements and a new format and numbering system. An abiding goal of the Board's update of its ADA and ABA guidelines has been to harmonize its requirements with model building codes and industry standards, including the International Building Code (IBC). The final rule will not go into effect until it is published.

Dept. of Justice Announces Tax Incentives Packet for ADA:
Two tax incentives are available to businesses to help cover the cost of making access improvements. The first is a tax credit that can be used for architectural adaptations, equipment acquisitions and services such as sign language interpreters. The second is a tax deduction that can be used for architectural or transportation adaptations. For more info, check out the DOJ web site: http://www.usdoj.gov/crt/ada/taxpack.htm.

Which came first — accessible or inaccessible Internet?

By Aaron McCullough,
DLRP Legal Specialist

It is hard to imagine my life without access to the Internet. I am an information junkie and always have been. However, computers never really interested me before about 1997. I used a typewriter through college and persisted in thinking of computers as glorified typewriters, or expensive adding machines. That is, until the Internet as we now know it blossomed.

Back in the 1980s and early 1990s the Internet was so much difficult-to-locate rubbish; so I thought. Accessing it involved using "Archies," and "Veronicas," and entering "gopher" commands, or dialing into a local bulletin board to download files I would never want, or know how to use. Fast forward half a decade where I lived outside of the Internet's sphere of influence (read West Texas) and I was introduced to the new Internet, one that looks a lot like the one that is alive (some would say festering) today.

I never thought much about what the new Internet implied for accessibility until DLRP began planning our new Web site and I was forced to consider the implications of accessibility in terms of content on our new Web site and in linking to other sites with accessibility concerns.

Many people fear that an accessible Internet is one with limited content and one that mirrors the Internet of the past. In many ways, the "old" Internet was more accessible. Most of the content was textual, with most graphics and sounds only available as downloads for individual use. Using today's screen reader technology (programming that renders text within a computer file, or Web site into a spoken voice), there would be almost nothing then online unavailable to the user with visual impairments.

However, an accessible Internet need not be devoid of visual and auditory content, lack style, or be too simplistic, inartistic, or unduly complicated to achieve.

What makes a Web site accessible? There are guidelines developed by the Web Accessibility Initiative that provide great direction for someone seeking to make their site accessible. Primarily, the guidelines require that: graphics and video be well described (usually in alt tags); the pages be screen reader compatible; audio must be captioned; and navigation through a site be available without a mouse (for single-switch users). In addition, for people with cognitive or neurological disabilities, Web design should include a consistent page structure and be configured so as to avoid strobing, or flickering of the screen.

These "Web Content Accessibility Guidelines," are constantly evolving, but the Access Board has found the 1999 version of the guidelines to conform with the § 508 guidance for federal Web sites, which required federal Web sites to become accessible to people with a wide rage of disabilities. For those who are interested in §508 of the Rehabilitation Act Web site accessibility standards, you can locate them on this Access Board site: http://www.access-board.gov/sec508/508standards.htm. The Web Accessibility Initiative's guidance is available at: http://www.w3.org/WAI/. For additional assistance you can call DLRP's toll free line, send questions via e-mail or visit our website.

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This newsletter is published by the Southwest ADA Center—the Southwest's leading resource on disability-related laws. DLRP is a program of ILRU (Independent Living Research Utilization) at TIRR in Houston, Texas. The DLRP is funded by grant #H133D60012 provided by the Department of Education's National Institute on Disability and Rehabilitation Research (NIDRR). NIDRR and DLRP are not enforcement agencies. This newsletter is available in alternate formats.

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