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Table of Contents

Court Cases

Title I

"Contradictory Statement Made to Insurer Bars Disability Claims Against Employer"
"Court: Consciousness not a job function for a train dispatcher"
"Res judicata bars retrial of dismissed ADA claims"
"Total disability claim need not sink claim under ADA"
"Refusal to Take Medication Dooms ADA Claim"
"Wal-Mart settles job discrimination case"
"Chuck E bias award reduced to $300,000"
"ADA Burden"
 "ADA deadline"
 "Employment Law"

Title II:

"Prisoner rights-disability claims"
"D.C. circuit court refines definition of disability"
"Deal to provide aid for deaf ends U.S. investigation"
"Bias claim rejected in math disorder"
"Docket Defections"
"Alabama allowed to segregate prisoners with HIV"
"Rays Sued Over Seating for the Disabled"
"Disabled win suit over fee on parking tag"
 "Lawsuits from wheelchair mom ordeal pending against Sandusky"
"Cases focus on police interaction with the deaf"
"Fixes spelled out in ADA agreement"
"City Sued for Refusing To Hire Cop With HIV"
"Plantation OKs settling access lawsuit"
"The Drug of Preference"

"Court kills state worker's ADA suit: Circuit panel says no to federal action, but it's OK in state court."

Title III

"NYRRC, Wheelchair Racers Settle"
"Club Pro Denied Use of Cart"
"Appeals court says Martin can use cart"
"PGA Tour vs. Casey Martin: Appeal settled, ramifications loom"
"Insurers Can Place Limits On AIDS Coverage: Supreme Court"
"ADA doesn't regulate policy terms, content"
"South Side: 3 restaurants sued over accessibility"
"Group for Disabled Sues Ames Department Stores"
"Suit makes Wal-Mart retrofit for the disabled"
"Regal Cinemas sued over seats"

Items of Interest

"Perseverance in Dillery case futile"
"Businesses balk at attorney fees in access flap"
"The total tutor"
"Stand up and be counted-Census 2000: No cause for paranoia"
"Georgia case may impact Massachusetts home care program"
"Applying the Americans with Disabilities Act to the Internet"
"Department stores vs. disabled shoppers"

Court Cases

Title I
"Contradictory Statement Made to Insurer Bars Disability Claims Against Employer"

New Jersey Law Journal, Newark, NJ (March 27, 2000)

The plaintiff, Robert G. Lincoln, was hired in 1992 at age 58 as a telemarketer for Momentum Systems Limited at $30,000 a year plus commissions. Eventually, he was promoted to sales manager.  After suffering a stroke in 1997, which left him with residual problems with enunciation and mobility, Lincoln sued his employer for illegal termination under the Americans with Disabilities Act and the Age Discrimination in Employment Act.

But the plaintiff made contradictory statements about his health and when he would return to work to the company president and to his insurer, which barred the disability claims against Momentum. The court granted summary judgment to momentum.

"Court: Consciousness not a job function for a train dispatcher"

Ft. Myers, FL News-Press (March 27, 2000)

(This case was mentioned in a "Wackiest Cases of 1999" law journal article.)

A former Consolidated Rail Corp. employee with a heart condition that caused him to lose consciousness lost his ADA claim. The worker was denied a
dispatcher's job that involves directing trains and taking emergency action to prevent crashes.

The EEOC told a Philadelphia federal appeals court that "while consciousness is obviously necessary to perform" the tasks of the job, "it is not itself a
job function."  The EEOC argued on his appeal that a safety-related qualification standard is valid only if the employee presents a "direct threat" to others.

A similar New Orleans found a federal appeals court ruling against the EEOC.  The EEOC tried to overturn an Exxon Corp. policy, written after the Exxon
Valdez oil spill that prevented anyone with an alcohol or drug abuse history from specific safety positions.

"The ADA's `direct threat' does not apply to existing qualification standard"

HR News, Alexandria, VA (April 2000)

Under the ADA, employers that impose broad safety qualification standards as a business necessity are not required to show that the affected employees
pose a "direct threat" of harm, says the 5th U.S. Circuit Court of Appeals.  The ruling is a victory for the Exxon Corp., whose policy of permanently
removing people with a drug or alcohol abuse history from certain safety jobs came under attack by the EEOC. Exxon said the policy was a safety
measure to ensure employees are not relapsing into substance abuse.  The court said qualification standards may include a requirement that
individuals not pose a direct threat to the health or safety of others.

"Res judicata bars retrial of dismissed ADA claims"

National Law Journal, New York, NY (April 10, 2000)

The U.S. Court of Appeals for the 11th Circuit ruled on March 17th that a worker could not sue his employer again under the Florida Civil Rights Act
and the Americans with Disabilities Act. His previous claims were dismissed because of limitations and failure to obtain a right-to-sue letter.

"Total disability claim need not sink claim under ADA"

National Law Journal, New York, NY (April 10, 2000)

A worker's application for Social Security Disability Income benefits, in which he said he was totally disabled from performing his job as a district
sales manager, was not inherently inconsistent with his failure-to-accommodate claim under the ADA, according to the U.S. District
Court for the Eastern District of Pennsylvania, in the case Dayoub v. Penn-Del Directory Co. The worker felt he could perform the essential
functions of a job, and he was seeking reasonable accommodation for a vacant position he was qualified to apply for.

"Refusal to Take Medication Dooms ADA Claim"

HR Focus, New York, NY, April 2000

The U.S. District Court for the District of Maryland said in a recent decision that a worker does not have a disability covered by the ADA if the
worker refuses to take medication that would control the disabling condition.

The woman, who had asthma, complained that an air-handling unit made her feel "cold" and "sick," but she did not say she needed the unit fixed to
accommodate complications arising from asthma.  She had been hospitalized twice for the condition, and her employer put her on "medical leave." She
refused to take one of her medications, fearing it would adversely affect a brain tumor diagnosed years earlier, which a doctor said was not the
case-that it could be completely controlled with medication.

The court rejected the worker's claim that the asthma limited her in the major life activity of breathing.  Even if she could claim ADA protection,
she would not have been able to prove that the employer failed to accommodate her, because she did not tell the employer she needed a specific accommodation.

"Wal-Mart settles job discrimination case"

Jodi Spiegel Arthur, Human Resource Executive, March 2, 2000

Wal-Mart has agreed to pay a total of $132,500 to two deaf job applicants who were denied positions in one of the company's Tucson, Arizona stores.
The young men will be offered positions as stockers or unloaders. The company has agreed to pay profit sharing and out-of-pocket medical expenses that would have been covered by health insurance had the company hired them in 1995. The company will use the date of September 1, 1995 for all decisions made based upon their length of service with the company.

In addition to new written policies on how employees can ask for (and supervisors can approve) accommodations, Wal-Mart has agreed to install a
telecommunications device for the deaf (TTY) and providing vibrating pagers for in-store communication. Safety and evacuation procedures will be
revamped, including visual fire alarms, if they are not present in the store where the men will be working.

The company also agreed to changes in its video and computer-based training programs to accommodate people who are deaf or hearing-impaired, including open or closed captioning, alternative formats, and sign-language versions of computer-based learning modules.  The new policies will be distributed either electronically or in writing.

"Chuck E bias award reduced to $300,000"

Capital Times, Madison, WI, March 15, 2000

A federal judge reduced a $13 million jury award to $300,000 in the ADA employment discrimination case of Donald Perkl, a former part-time janitor
employed at a Madison Chuck E Cheese pizza restaurant.  The reduction ($230,000 in punitive and $70,000 in compensatory damages) is the maximum amount allowed under federal law. The judge ordered the company to pay Perkl's legal costs and to rehire him. Perkl refused an offer of a new job.

Perkl, who has mental retardation and communicates through picture cards and an augmentative communication device called a Dynamyte, was fired in 1997 after a visiting district manager told his supervisor that the company didn't hire "those kind of people." The company ignored complaints about the manager's comments, and failed to discipline him. The company also argued that Perkl was "too retarded to be hurt much by the firing."

The judge reducing the money recognized the importance of the job in Perkl's life, and also recognized that the jury wanted to "send a clear message" to the company.

"ADA Burden"

National Law Journal, New York, NY, March 20, 2000

If workers claim in lawsuits that their employers failed to make required accommodations under the Americans with Disabilities Act, it's up to the
employee to prove that a job vacancy was available for the desired position, according to the March 3rd ruling made in Jackan v. New York State
Department of Labor by the U.S. Court of Appeals for the 2nd Circuit. In that case, plaintiffs could win the case only if they could establish that a
vacant position was available to which they could be transferred. The latest ruling is in line with the 3rd, 7th, 11th, and D.C. circuits.

"ADA deadline"

Bottom Line/Business, Greenwich, CT, April 2000

Plaintiffs have a 90-day time limit for suing under the Americans with Disabilities Act. In a recent case, a man's claim was dismissed because he
did not file it within three months of receiving a "right to sue" letter from the Equal Employment Opportunity Commission.  Injured in a fall at
work, the man sued his former employer, alleging he was dismissed because of his injury-a violation of the ADA. He had no good reason for the delay.

"Employment Law"

San Diego, Commerce, San Diego, CA (March 17, 2000)

An employer may require an employee with a disability to provide a medical release without violating the Americans with Disabilities Act. Roosevelt
Harris, a sheet metal worker for Harris & Hart Inc., signed the company policy manual, which states that an employee would not be allowed to return
to work after an illness or injury without a medical release from a doctor.

Roosevelt complained of carpal tunnel syndrome, and the company refused to let him return to work without a medical release. He sued, claiming the
company refused to accommodate his disability as required by the ADA.  The trial court found the company did not violate the ADA.

The company's request for a medical release was an inquiry, not an examination.  The release the doctor provided did not require additional
tests or procedures, so the company was free to ask if Roosevelt could perform certain work functions, so long as the inquiry did not violate ADA provisions.

Title II
"Prisoner rights-disability claims"

Chicago, IL, Chicago Lawyer (April 2000)

A trial court dismissed emotional distress claims from a blind Indiana prison inmate who sued the Indiana Department of Corrections under the
Americans with Disabilities Act and the Rehabilitation Act, claiming the department refused to accommodate his blindness and denied his access to
prison programs, including use of the law library, financial aid for education, recreation, job assignments, and vocational training.  Under the Prison Litigation Reform Act of 1996, claims of emotional distress have to be accompanied by an allegation of physical injury.

"D.C. circuit court refines definition of disability"

Trial, Washington, DC (April 2000)

A three-judge panel for the U.S. Court of Appeals for the District of Columbia Circuit says that plaintiffs who file under the Americans with
Disabilities Act must prove they suffer from a permanent, debilitating condition that substantially affects a major life activity, such as seeing,
learning, or working. The Court requires workers trying to prove that they are severely limited in the major life activity of working to present expert
testimony or statistics to show that they are unable to hold almost all jobs.  By doing so, the court rejected the EEOC guidelines for interpreting
the Act, which state that "a person does not have to be totally unable to work to be substantially limited in the major life activity of working.

The ruling came after Duncan, a former Washington Metropolitan Area Transit Authority employee, suffered the first of several back injuries in 1989 as a result of on-the-job heavy lifting. By 1992, the injuries incurred time off from work.  Since there were no light duty positions available, he was placed on leave without pay.  During 1993, he was terminated.  He sued under the ADA, claiming wrongful termination because he was disabled.  He won the original case, but it was overturned because the worker failed to prove he couldn't work at other positions, and he did not enlist the aid of a
qualified vocational rehabilitation counselor as testimony.

"Deal to provide aid for deaf ends U.S. investigation"
Chicago, IL Tribune, April 1, 2000

Houston, Texas agreed to provide sign language interpreters and other assistive devices for people who were deaf or hard of hearing, and to
retrain workers in the police department, courts, and jail.  This was in response to a federal investigation by the U.S. Department of Justice's
civil rights division, looking for violations of the Americans with Disabilities Act.

In a private lawsuit, the deaf man complained that he did not know why Houston police arrested him, or where he was being taken.

"Bias claim rejected in math disorder"
Kentucky Enquirer, Cincinnati, OH, March 25, 2000

A Fort Thomas woman studying elementary education at Northern Kentucky University lost a discrimination appeal against the school in January. The Sixth Circuit Court of Appeals upheld a January summary judgment.

She claimed a "math learning disorder" kept her from learning math and caused her to repeatedly fail a math class required for graduation.  When
the university denied her degree in 1997, she sued, claiming her rights were violated under the Rehabilitation Act of 1973, the Americans with
Disabilities Act, and the Kentucky Civil Rights Act.  An attorney for the school said the ruling matched the university's standards of academic excellence.

"Docket Defections"

New Jersey Law Journal, Newark, NJ, March 6, 2000

Two cases that were supposed to be heard by the Supreme Court have been shelved. The cases were supposed to settle whether states as employers could be sued under the Americans with Disabilities Act. Under the 11th Amendment, states are immune from being sued. In the first case, Florida Department of Corrections vs. Dickson, the state sought to repel the security guard's ADA claim that he was denied a promotion because of a heart condition. The state of Florida seeks to settle out of court, probably because Gov. Jeb Bush does not want to be seen as weakening legislation put into place by his father, according to one theory.

In the second case,  Alsbrook vs. Arkansas, the plaintiff, a police officer, had trouble proving the existence of his visual disability. His vision could
be corrected to 20/30. He also settled out of court.

"Alabama allowed to segregate prisoners with HIV"

Southern Voice, Atlanta, GA, January 20, 2000

The Supreme Court decided on January 18 to let some states, for now, keep the practice of segregating prisoners with HIV from most activities
available to general prison populations-including vocational, recreational, educational and religious programs. Without comment, the Court rejected an
appeal by the prisoners, saying it violated federal disability discrimination laws, including the Americans with Disabilities Act. The Court's action does not set a legal precedent, and they may review the case sometime in the future. The denial of review lets stand a federal appeals court ruling that said Alabama's policy does not go against federal anti-bias laws because prison officials have a great deal of leeway in setting policies.

The policy means that HIV-infected prisoners will serve longer prison terms, and therefore may be less prepared to live in the outside world upon
release. Lawyers for the Alabama inmates said the lower courts wrongly based such a policy on the "possibility" of infecting other inmates, not the
"probability" of that occurring. In 1998, the Supreme Court ruled that the ADA can protect people with HIV from the moment of infection, as in the case of a dentist who refused to treat an HIV-positive patient in his office.

"Rays Sued Over Seating for the Disabled"

Lakeland, FL, Ledger, March 19, 2000

Alleging a violation of Title II of the Americans with Disabilities Act, parents of a disabled girl are suing the Tampa Bay Devil Rays because she
had no seat for a Backstreet Boys concert at Tropicana Field. They complained, but no one solved the problem. The family bought
disabled-seating tickets well before the show, but when they arrived, no seats were provided.  The Rays operate the city-owned stadium.

Disability advocates won a 1988 suit over the lack of accessible seating, but some say accommodations are still inadequate.

Two more articles on the same subject were published in the Star-Banner,
Ocala, FL, and the News-Press, Ft. Myers, FL on March 19, 2000.

"Disabled win suit over fee on parking tag"

Shane Anthony, Lincoln, NE Journal Star, March 8, 2000

Five people with disabilities won their class-action lawsuit Feb. 29 against the (Nebraska) Department of Motor Vehicles, demanding that the state stop charging disabled people $3.00 for special parking tags. The plaintiffs asked the DMV to pay back money it began charging them in 1992, and to pay their attorneys' fees. The five plaintiffs represent 50,000 people  affected by the law. The state is expected to appeal.

In the ruling, Judge Bernard J. McGinn said the charge violates the Americans with Disabilities Act, and violates the precedent of not charging
for federal programs.  A lawyer for the plaintiffs used the following example: If people with disabilities are charged $3.00 for the tags, then a
deaf person on a jury could be charged a higher price for an interpreter.  The plaintiffs felt all taxpayers could bear the cost of the tags.

"Lawsuits from wheelchair mom ordeal pending against Sandusky"

Napoleon, OH Northwest Signal (March 22, 2000)

Although the woman arrested for using her wheelchair to get around town with her daughter doesn't plan on returning to Sandusky, her battle with the city isn't over. Two lawsuits accusing the city of violating Kelly Dillery's civil rights and the Americans with Disabilities Act are moving forward slowly in a Toledo U.S. District court.  The lawsuits ask the city to rebuild curb ramps built or altered since January 1992 and to pay unspecified compensatory and punitive damages.  The judge is considering a motion to combine the lawsuits.  It's been about a year since Dillery was acquitted of a child-endangerment charge.

"Cases focus on police interaction with the deaf"

Peter Pochna, Portland, ME Press Herald (March 22, 2000)

According to two lawsuits filed in Portland federal court under the ADA, some local police departments have ignored requests to provide deaf criminal defendants with interpreters. The lawsuits are part of an effort by deaf advocates to get police to improve communications with deaf people-seen as a major problem in the state.

The state legislature gave $120,000 to the Maine Center on Deafness for
advocacy efforts-twice as much as usual.

Certified American Sign Language interpreters are sorely needed-particularly those well versed in the nuances of legal language. Maine has about 100 registered interpreters, but only about 12 are trained in interpreting legal language.

"Fixes spelled out in ADA agreement"

Sean Cavanagh, Ft. Lauderdale, FL Sun-Sentinel (March 30, 2000)

A proposed settlement of a federal lawsuit requires the City of Plantation, FL to make its buildings and services accessible to people with disabilities
and to pay an unspecified amount in attorneys' fees.  The buildings include City Hall, Central Park, the police department, various fire stations, and a
stadium. The City denies it violated the ADA.

The City is required to select a coordinator to monitor compliance and prepare regular surveys to measure progress. Plaintiff John Garon called for the City to take initiative and train building inspectors to be on guard for out-of-compliance new and existing buildings.

"City Sued for Refusing To Hire Cop With HIV"

Lawyers Weekly USA, Boston, MA (April 3, 2000)

The City of Chattanooga, TN can be sued under the Americans with Disabilities Act for revoking a job offer to a police officer after it found
out he was HIV-positive, the Sixth Circuit said, reversing a summary judgment.  The plaintiff passed the City's written and physical tests, and
was offered the job-provided he passed a medical exam.  The City didn't normally test applicants for HIV, and didn't have a policy requiring
officers to be HIV-negative.

After the plaintiff told the examining doctor he had HIV, the doctor refused to pass him. The city then revoked the job offer, saying it couldn't "put
other employees and the public at risk" by hiring him.  The city said the job offer was withdrawn because he failed the medical exam, not because he
had HIV.

But the court said the ADA "mandates an individualized inquiry when determining whether a disability or other condition disqualifies him from a
particular position."  The employer has to ask about the person's actual medical condition and how it impacts his ability to perform the job.  The
medical report listed the officer's HIV status as support for the doctor's opinion that he was unfit for police work without examining him for fatigue,
sluggishness, shortness of breath, or any other sign of weakness or lack of endurance.  Therefore, the court said, "a jury could conclude that the city
refused to hire the plaintiff as a police officer because of its unsubstantiated fears of HIV transmission."

"Plantation OKs settling access lawsuit"

Miami Herald (April 6, 2000)

The Plantation City Council settled a federal ADA lawsuit by signing an agreement to pay the legal fees of both sides-estimated at $150,000.  The
City will retrofit existing buildings and plan for accessibility as new ones are built. By 2002, community centers, libraries, voting facilities, and
other town locations will be accessible.  By 2003, restrooms in Pop Travers Field will be accessible.

"The Drug of Preference"

Daryl Van Schouwen, Chicago Sun-Times, April 18, 2000

This article examines the extent of alcohol abuse among high school students, particularly among athletes.  The students interviewed estimates
that it's a big problem-more than 50 percent. The article mentions a basketball star suspended from the team for a year because of drunk driving incidents.  He sued the school, saying his alcoholism was a disability under the Americans with Disabilities Act. While the outcome was not clear in the story, coaches and teachers said parents would have to be responsible for changes in attitudes.

"Court kills state worker's ADA suit: Circuit panel says no to federal action, but it's OK in state court."
Mark H. Madler, National Law Journal, New York, NY (April 10, 2000)

State employees cannot sue their employers in federal court under the Americans with Disabilities Act, the U.S. Court of Appeals for the 7th
Circuit ruled on March 27th. The majority said the 11th Amendment makes states immune to such lawsuits.  However, the court stressed that plaintiff
Melinda Erickson can still pursue a disability discrimina-tion lawsuit in state court because Illinois has not asserted its right to blanket immunity.
In 1995, Erickson sued her former employer, the Board of Governors of State Colleges and Universities, saying they fired her illegally because of the absences she incurred while seeking infertility treatments.

The Court said the 14th Amendment was at the center of the issue-the power of Congress in section 5 to pass legislation to enforce 14th Amendment provisions, including the right to due process and equal protection.

Title III

"NYRRC, Wheelchair Racers Settle"

Metro Sports: New York Edition, New York, NY, March 2000

The New York Road Runners Club (NYRRC) and the nine wheelchair athletes who brought suit against the organization last July settled out of court in January. The plaintiffs said New York City Marathon organizers violated the Americans with Disabilities Act in their treatment of wheelchair racers. Among other things, the racers were asked to stop and let runners pass.  Other cities, like Boston and Chicago, already have wheelchair divisions. According to organizers, the reasons for this had to do with street size, bridges, and construction.

As a result of the settlement, a formal wheelchair division will be established for the Nov. 5 race, wheelchair racers will start 30 minutes earlier than runners, and there will be no limit to wheelchair athlete registration.

"Club Pro Denied Use of Cart"

Associated Press, Ft. Myers, FL News-Press, March 8, 2000

Ford Olinger, a club pro from Indiana, sued the U.S. Golf Association for the right to ride a cart in U.S. Open qualifying. Olinger, who has a
degenerative hip condition, lost his appeal on March 7. The 7th U.S. Circuit Court in Chicago decided a cart would change the nature of competition.

The decision comes one day after the 9th U.S. Circuit Court in San Francisco upheld a lower court ruling that allows Casey Martin to ride a cart on the PGA Tour.  Spokespersons for the USGA and PGA declined comment until they could review the opinion from a Chicago court. Martin and Olinger both sued under the Americans with Disabilities Act.

Eight more articles on this subject appeared in other papers.

"Appeals court says Martin can use cart"

Steve Waters, Ft. Lauderdale, FL Sun-Sentinel, March 7, 2000

The 9th U.S. Circuit Court of Appeals upheld a federal magistrate's decision allowing Casey Martin to ride a cart in PGA Tour events. Martin was born
with Klippel-Trenauney-Weber Syndrome, a circulatory disorder in his right leg that makes walking difficult and painful. Martin contended that under
the Americans with Disabilities Act, he was entitled to accommodation-i.e., a golf cart. The PGA appealed the ruling, claiming that allowing Martin to
use a cart fundamentally changed a golf tournament. The appeals court disagreed by a 3-0 vote.

The judge said the central competition in shot-making would be unaffected by the accommodation, pointing out that the cart allows Martin to participate in a type of competition that otherwise he wouldn't be able to do because of his disability. The judge said this reflected the purpose of the ADA.

Eleven more articles on this topic appeared in other papers.

"PGA Tour vs. Casey Martin: Appeal settled, ramifications loom"

Jeff Barr, Golfweek, Orlando, FL, March 18, 2000

This story details how Martin won his appeal against the PGA Tour, and how he can use a cart during tournament play. However, Ford Olinger, a pro
golfer with a degenerative hip disorder, also sued under the Americans with Disabilities Act for the right to use a cart, and lost. That case could
force the PGA Tour to take the case to the Supreme Court.

Sidebar: Jeff Babineau -- "Fiori makes cart inquiry"
(Same publication as above.)

Pro golfer Ed Fiori, reacting to the Martin case, said he wished he could use a cart during golf tournaments because of his chronic bad back-the discs
of which have degenerated to the point where he has five hours of physical therapy after a game. He asked PGA officials if he could use a cart, and was
told `no, you'll have to sue us.' Fiori said he knew of 10 or 12 other people with bad knees, hips, etc. who could also benefit from the use of a
cart, and that it doesn't give players an unfair advantage. However, Fiori said that may be the reason why the PGA was reluctant to allow a cart in the
first place-that it would "open up a can of worms."

"Insurers Can Place Limits On AIDS Coverage: Supreme Court"

Physicians Financial News, Internist and Radiologist, New York, NY, February 28, 2000

The U.S. Supreme Court, striking down allegations of illegal bias, recently ruled to let Mutual of Omaha provide less health-care coverage for
AIDS-related conditions than for other conditions under the same policy. The Supreme Court ruled in 1998 that people who carry the HIV virus are covered by the Americans with Disabilities Act even though they have no visible symptoms of AIDS. The appeals court said it was similar to a furniture store not selling wheelchairs.

Mutual of Omaha recognized that the Americans with Disabilities Act prohibits discrimination that denies people with disabilities access to
businesses. They said the decision meant that the ADA does not require that every product be modified to accommodate disabilities.

"ADA doesn't regulate policy terms, content"

National Law Journal, New York, NY, March 13, 2000

On February 24, the U.S. Court of Appeals, 5th Circuit, decided in McNeil vs. Time Insurance Co. that anti-discrimination provisions of the Americans
with Disabilities Act don't regulate the terms and conditions of an insurance policy.

"South Side: 3 restaurants sued over accessibility"

Pittsburgh, PA Post-Gazette, March 24, 2000

On March 23, the Disabilities Law Project filed three additional suits in U.S. District Court on behalf of wheelchair users against East Carson Street
eating establishments. According to the law project, the owners of Smokin' Joe's, City Grill, and Pittsburgh Steak Co. refused to build access ramps in
accordance with the Americans with Disabilities Act. The suit says the businesses have one or two-step barriers that prevent people in wheelchairs
from entering.

Earlier, in January, the law project filed similar suits against three other South Side bars and restaurants, and vowed to keep suing businesses that
didn't respond to November letters warning them against noncompliance.  Defendants in the March suit were all sent letters with copies of the first
complaints, and they were encouraged to contact the law project to discuss compliance. No one responded, according to the plaintiffs.  The Disabilities
Law Project used the same strategy last year in Harrisburg's Midtown Market section.

"Group for Disabled Sues Ames Department Stores"

Bill Miller, The Washington Post, March 24, 2000

The Disability Rights Council of Greater Washington filed a class action lawsuit March 23 against Ames Department Stores Inc. on behalf of two
Northeast Washington, D.C. residents who use wheelchairs. The suit alleges the store failed to make aisles, counters, and dressing rooms accessible.
The suit is an amended version of an August complaint against 10 Northeast Washington Ames stores. The expansion allows lawyers to represent the
chain's customers nationwide. A survey of 50 other Ames stores across the nation revealed similar problems.

Company officials said the suit surprised them. In a statement, Ames said it had promised improvements going beyond legal requirements, and that they
were committed to making stores accessible.

Lawyers for the plaintiffs said Ames was alerted in May 1998 of the difficulties disabled customers experienced, but didn't do anything for 15
months. Attorneys also said it was important for corporations to understand, if the allegations could be proven, that they could not ignore the Americans
with Disabilities Act and state statutes, and only obey them after they are brought to court.

"Suit makes Wal-Mart retrofit for the disabled"

James L. Rosica, Tallahassee, FL, Democrat (March 21, 2000)

Wal-Mart settled with plaintiff Thomas Schmokel regarding his charges of ADA violations. The company will pay more than $200,000 to make its Apalachee Parkway store accessible.  Changes include 1) providing a smooth transition from the asphalt to the sloping entrance of the store; 2) Replacing fire extinguishers and ensuring their position is not in the direct path of customers; 3) Correcting all handrails on stairs and ramps-ensuring they are 1.25 to 1.5 inches in diameter; 4) Adding paper towel dispensers in wheelchair-accessible restroom stalls and relocating the grab bars;
5) Relocating mirrors in dressing rooms; 6) Making sure that all counters-excluding those for refrigeration service-are 36 inches high; 7)
Ensuring that all aisles are 36 inches wide; 8) Adjusting doors so they open with five pounds of pressure or less; 9) Installing a TTY; 10) Providing a hand-held blood pressure machine in the pharmacy for customers with disabilities.
 

"Regal Cinemas sued over seats"

Ashbel S. Green, The Portland, Oregonian (April 12, 2000)

The Oregon Paralyzed Veterans of America sued Tennessee-based Regal Cinemas for violating the Americans with Disabilities Act. The suit aims to force Regal to retrofit its theaters and pay unspecified damages. The group accuses the chain of giving the worst seats to patrons with disabilities-and
targets six theaters in the Portland and Salem areas.  The suit says that seating for people with disabilities in those theaters does not provide
views comparable to those of other patrons.  The theaters' design has a front entrance, and patrons have to navigate steps to get a better view.
People using wheelchairs were left in the front rows and typically at the far ends.  PVA suggested a better design to architects and building
designers.  Under the new design, patrons would enter in the middle of the theater and walk up or down to get to their seats. People with disabilities
would sit in the middle. The company has no comment about current legislation.

PVA threatened to sue in 1998, but didn't when Regal admitted violations and promised to fix the problems. It never happened.  When confronted, Regal said they were putting compliance on hold because DOJ was considering new rules that could affect movie theater seating.

Items of Interest

"Perseverance in Dillery case futile"

Sandusky, OH, Register, March 19, 2000

This is an editorial in the former hometown paper of Kelly Dillery, a parent who uses a motorized wheelchair. (See numerous February and June 1999 court cases)  Although acquitted of a child-endangerment charge, she and disability advocates sued the city under the ADA to install curb cuts.
Though Dillery and her daughter have moved to Indiana, the accessibility suit trial begins. The paper disapproves of prolonging the case, and
encourages the city to make the access changes-as many other localities were forced to do.

"Businesses balk at attorney fees in access flap"

Frank Cerabino, Palm Beach Post, March 5, 2000

Citizens Concerned about Disability Access is an advocacy group in Pompano Beach, founded by a lawyer and his neighbor-a parent of a disabled child. The woman and her daughter sued local businesses for lack of access, although sometimes not in person. They often depended on hearsay to determine what a business was like.  After complaining that they were sued without warning, some owners made changes, like grab bars, ramps, and Braille signs.  Their lawyers informed them that they owed them $5000.  When the businesses refused to pay, a judge ruled the advocacy group had no standing because they couldn't prove they had been denied access.  The business' attorneys' fees were lessened.

"The total tutor"

Times Union, Albany, NY, March 14, 2000

According to an NCAA investigation report published in the Knoxville News-Sentinel, a University of Tennessee English Department official claimed a student-a star football player-plagiarized a paper. The university concluded that an athletic department tutor misinterpreted the Americans
with Disabilities Act. The tutor thought a student with a learning disability could consult with her about a paper, and that it was okay for the tutor to draft a paper for the student.

"Stand up and be counted-Census 2000: No cause for paranoia"

Kentucky Enquirer, Cincinnati, OH, March 26, 2000

This is an editorial from an Ohio paper urging reluctant people to fill out Census 2000 forms. Some people fear their answers may be used against them. The editors cite Title 13 of U.S. Code, imposing a $100 fine for not filling out the forms, and a $500 fine for giving knowingly false answers. They talk about the Census Bureau's $167 million campaign to encourage people to fill them out.

Ohio lost two Congressional seats from the 1990 Census, and is in danger of losing a third. What some people consider intrusive questions, like mental
disability or plumbing go beyond the Constitution's call for a simple head count, according to editors. But they also point out that a wide variety of
decisions are made based on citizens' answers, including "local levies, federal funding and controversial laws, like the Americans with Disabilities
Act."

"Georgia case may impact Massachusetts home care program"

Al Norman, 50+ Senior Advocate, Worcester, MA, March 9, 2000

This editorial talks about the case of two mentally retarded Georgia women confined to the psychiatric unit of an Atlanta hospital, even though when
clinicians evaluated them, they were judged able to live and get treatment in the community. Attorneys on behalf of the plaintiffs sued in 1995, saying
the state violated Title II of the Americans with Disabilities Act (The Olmstead case).  The author further discusses the cost of nursing home care, community-based care, and home care.

"Applying the Americans with Disabilities Act to the Internet"

Jonathan Bick, New Jersey Law Journal, Newark, NJ (March 27, 2000)

This article discusses in detail the National Federation of the Blind's November 1999 suit against America Online Inc. and the "broader picture" of public accommodations on the Internet. The suit was initiated in part because the software needed to use AOL doesn't work with software required to translate computer signals into Braille or synthesized speech, in violation of Title III of the Americans with Disabilities Act.  The suit
says AOL refused to remove communication barriers. The suit also charges that AOL violates the "reasonable modification" and "full and equal enjoyment" mandates of the ADA.

"Department stores vs. disabled shoppers"
Store Equipment and Design, Chicago, IL, March 2000

A Wall Street Journal article reports that Federated Department Stores, Inc. and their divisions-Macy's East, Macy's West, and Burdines-face three
lawsuits by disability activists who say the stores are becoming too difficult to navigate because of cluttered aisles, making it difficult for those in wheelchairs to get around.  The vague language of the Americans with Disabilities Act is at the heart of the suit.

Federated says its abundant displays are intended to "stop shoppers in their tracks," and that their stores are unlike boutiques with wide aisles, where salespeople wait on customers. The Americans with Disabilities Act requires commercial facilities to make room for wheelchairs-usually about three feet-wherever it is "readily achievable," except when those adjustments would result in "a significant loss of selling space."

Retailers say they are trying to make reasonable accommodations, but a lawyer for the National Retail Federation says what some lawsuits are trying to do goes beyond what the ADA requires.  The Journal noted that the ADA affects all retailers, but that department stores are a frequent target in lawsuits because of frequent sales and cluttered aisles.

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The mission of the DLRP is to promote proactive compliance with the ADA in Texas, Arkansas, Louisiana, New Mexico and Oklahoma.  Based at ILRU (Independent Living Research Utilization), a program of TIRR in Houston, Texas, the DLRP is funded by NIDRR, an agency of the Department of Education, under grant #H133D60012, to provide information, materials, and technical assistance on the ADA.  NIDRR is not an enforcement agency.

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