Posted in disability civil rights

“Please Fasten Your Seat Belts and Refrain from Nipping other Passengers”

92CB669B-F744-4BE9-A65E-F1D0E755C264.jpegYou’ve probably been reading about or experiencing the increasing presence of animals on airplanes. They range from the bizarre (an unsuccessful attempt to bring a peacock on board) to tragic (a passenger believing she had to flush her hamster down the toilet, a dog suffocating in a storage bin).

All of this is in reference to the federal law that requires airlines to accommodate passengers with disabilities. The Air Carrier Access Act (ACAA) defines “disability” in the same way as does the Americans with Disabilities Act: a physical or mental impairment that substantially limits a major life activity. That legalese is another way of saying that the limitation must be significant – a temporary illness or  even a broken leg are usually not serious enough to fit within the legal definition.

But those lines have become increasingly blurred by press coverage and public discourse, and the prevailing belief now seems to be that ANYONE can have  a service or emotional support animal on a plane – just because they can get a doctor to say that  they need one.

I and others have written extensively about the damage this does to people with real disabilities who genuinely need those animals to help them while they are on a plane and maneuvering through he rest of life.

Fortunately, as the attached article shows, several airlines are examining their policies on passengers with animals. And there is still time to give your input to the Department of Transportation on this issue.

For more information, see:

 https://www.cnbc.com/2018/05/16/dot-seeks-public-comment-about-emotional-support-animals-on-flights.html

For general information, use my search engine and/or see:

:/https://www.usatoday.com/story/travel/flights/todayinthesky/2018/06/21/delta-one-comfort-animal-per-passenger-no-pit-bulls/720957002/

https://www.transportation.gov/airconsumer/passengers-disabilities

Nothing on this site is intended to be legal advice.

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Posted in disability civil rights, drugs and alcohol, Reasonable accommodation

Getting Real about Disability Laws # 3: Can an Employer Terminate a Drug Addict?

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As explained previously, these “getting real” posts are attempts to shed daylight on some of the wildly mistaken beliefs about disability laws. In today’s piece, I’ll talk about the myths and realities of  illegal drugs at work.

MYTH

Even if an employer has a policy prohibiting the use of drugs in the workplace, that employer cannot terminate an employee if he claims that he is a drug addict. This is because drug addiction is considered a disability under the Americans with Disabilities Act (ADA).

FACT

Actually, current users of illegal drugs are NOT protected under  the ADA. Neither are kleptomaniacs, pyromaniacs, compulsive gamblers or people with sexual behavior disorders.

This may seem strange, because there is little doubt that these conditions would ordinarily fit the legal definition of “disability.”  So why are they excluded? The reason, pure and simple, is politics. The drafters of the ADA knew they would face an even bigger battle if certain stigmatized activities were legally protected, so they simply wrote them out of the law.

This may also help explain why alcoholics are protected under the ADA. Regardless of the damage alcohol can do, it is still legal and hence occupies a higher “status” than other addicting drugs.

BUT, REALITY CHECK!

Even if alcoholism is protected under the ADA,  an employer can still discipline and even terminate an employee who is under the influence on the job. (The employer should have a policy stating this, of course.)

There were actually some early cases where terminated employees claimed that the ADA allowed them to be drunk on the job. The courts did not buy that, however, and the usual accommodation is to give the employee time off for treatment.

Finally, please keep in mind that although current drug users are not legally protected, former users are. The idea is that the addict who has gone through treatment and is ready to return to work should be able to do so without being stigmatized.

For more information, go to https://www.ada.gov/copsq7a.htm

Nothing on this site is intended to be legal advice.

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Posted in disability civil rights, Employment, Essential job functions and disabilities, Reasonable accommodation

Getting real about disability laws, Part 2: Can an employer ever fire an employee with a disability?

 

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We’re all on information overload these days. So much seems to be coming at us from all sides. Worse yet, it’s very hard to tell if the information we’re absorbing is accurate. And it can be even worse if you have a disability, because you’re more likely to be isolated and not as able to access the people or documents that can help you work towards the truth.

Speaking of disabilities, one of the areas rife with misinformation is the AMERICANS WITH DISABILITIES ACT (ADA) and other laws designed to help people with disabilities get as fair a shake as possible in our society. That is why I am writing this series about some of the most common mistaken beliefs about these laws.

Today, I’m going to shed some light on the myth that an employer cannot fire an employee with a disability.

MYTH
If an employee with a disability cannot do her job, the employer cannot fire her but has to hire someone extra or make other employees do the work.

TRUTH
Like with anyone else, an individual with a disability does not have an automatic right to stay in a job unless she can actually perform it.

But the ADA is different from other discrimination laws in this respect: If an otherwise qualified employee needs reasonable accommodation in order to perform the essential functions of the job, the employer must provide the accommodation unless it would result in an undue hardship to the employer or cause a fundamental alteration in the workplace.

EXAMPLE
An office receptionist with a spinal deformity cannot sit for more than an hour or so at a time. It would probably be a reasonable accommodation for the employer to let him get up and stretch his legs for a few minutes every hour. This would allow him to do the job, and would result in little or no cost to the employer. But if his condition worsened to the point where he often had to leave his desk in the middle of customer calls, it would likely become an undue hardship for the employer to tolerate this situation.

POSSIBLE SOLUTION
As previously discussed, the ADA challenges both employers and employees to put fresh eyes on workplace tasks and determine whether they can be done in an effective (and possibly non-traditional) way. The law also requires that employers and employees work together to determine the best way for that to happen.

In this case, one option might be for the employer to purchase a desk that allows the employee to stand up as needed to do the job. Another might be to supply a cot or couch where the employee can answer the phone for part of the day. There are many potential solutions to this problem, and one of the best places to find them is at a government website called the JOB ACCOMODATION NETWORK. https://askjan.org

For more information, go to the “Employment” section on this website, or to https://www.ada.gov.

Nothing on this site is intended to be legal advice.

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Posted in disability civil rights, Employment, Essential job functions and disabilities

Getting Real about Disability Laws, Part 1

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Who knows what’s true anymore? Is the above photo a joke or would an airline really have to allow an “emotional support elephant” on a flight?

Spoiler alert: The photo is obviously a joke. But there really is a tremendous amount of misinformation out there about what our disability laws require. So in the next few posts, I am going to try to correct some of these “urban legends” that add to the already  misleading view of people with disabilities.

Myth:The Americans with Disabilities Act (ADA) requires employers to hire people with disabilities, even if they are not the most qualified applicants for a job.

Fact: The ADA specifically states that it does not prevent employers from hiring the most qualified person for a position. What it does prohibit, however, is employers imposing job requirements that  BOTH screen out people with disabilities AND are not “essential functions” of the job.

Example: A law office needs to hire a legal assistant. That person’s job is to do legal research and draft court pleadings. Occasionally, that person may be asked to drive to the courthouse and file papers, but there are plenty of other people around who could do that if s/he were not available.

Andrea applies for the job and would be the leading candidate, were it not for the fact that she has a nerve disorder that prevents her from driving.  If the employer decides not  to hire her for this reason, the employer might be violating the ADA, because it is not essential that Andrea be able to do that task.

But let’s change the facts a bit: This is a small office and the legal assistant must be depended on to file court papers on a regular basis. In that case, it would probably be legal for the employer to pass over Andrea, because she would be unable to perform the essential functions of the position.

As is clear, phrases like “essential functions” and “job descriptions” become crucial in analyzing these kinds of cases. And the ADA requires that each situation be judged on its own facts, to determine the meaning of these phrases in each particular setting.

So essentially, the ADA is requiring employers (and everyone) to free ourselves from outdated and unwarranted assumptions. And that would be a desirable step forward, even without the law.

For more information, to to the “employment” link on this website or to www.ada.gov.

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Posted in disability civil rights, Reasonable accommodation

What’s Wrong With This Picture?

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Well, nothing – unless you happen to be an individual with mobility and/or balance problems. Then, this scene could quickly turn into a nightmare.

More realistically, we probably just wouldn’t go to whatever this game is. Then we would lose the opportunity to have a pleasant evening, contribute to the economy and be more integrated into mainstream society.

This and thousands of similar scenes are part of the reason the Americans with Disabilities Act(ADA)  was enacted in 1990.

The ADA defines sports arenas as public accommodations (see the “public accommodations”  link on this site). As such, they are required to accommodate people with disabilities, as long as that accommodation does not create an undue burden.

So what might “accommodation” look like in this scenario? It could be a number of different things: installing hand railings, designating certain seats outside of this area for people with disabilities and their companions, providing physical assistance with getting up and down the stairs, etc.

In 2011, new regulations were issued that clarify much of what the law requires, as well as practical examples of what compliance might look like. Those regulations are in the link below.

Play ball!

https://adata.org/publication/disability-law-handbook#Ticketing,%20Reservations,%20and%20the%20ADA

Nothing on this site is intended to be legal advice.

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Posted in disability civil rights, Disability sterotypes

Play Ball – Legally


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The baseball season is fast approaching, and that includes Little League. These are indelible symbols of our American values, but they still must comply with the Americans with Disabilities Act (ADA).

In 1992,  Little League, Inc. adopted a policy saying that coaches in wheelchairs were not allowed on the baseball field, but had to coach from the dugout. After one tries to visualize how that could possibly work, the logical next question to ask is why. That’s the question that was asked by the players and the parents, but no clear answer was given.

A coach who was a wheelchair user sued Little League Baseball, Inc. and he won. The Arizona federal district court first held that Little League  met the definition of a “public accommodation” (see the “public accommodation” page on this website.) The court also clarified  that the ADA does not require any organization to put people in danger, but that danger must be real:

“In determining whether an individual, such as plaintiff, poses a direct threat to the health or safety of others, a public accommodation must make an individualized assessment, based on reasonable judgment that relies on current medical knowledge or on the best available objective evidence, to ascertain: (1) the nature, duration, and severity of the risk; (2) the probability that the potential injury will actually occur; and (3) whether reasonable modifications of policies, practices, or procedures will mitigate the risk.”

In other words, the court said, Little League Baseball, Inc. had a legal obligation to assess the realistic danger posed by this particular individual in this situation. And in this case, the coach had been coaching from the field for three years without posing any kind of safety hazard and was very popular among parents and players.  “Moreover,” the court said, “plaintiff’s significant contributions of time, energy, enthusiasm, and personal example benefit the numerous children who participate in Little League activities as well as the community at large. Plaintiff’s work with young people teaches them the importance of focusing on the strengths of others and helping them rise to overcome their personal challenges.”

Baseball was the first sport that accepted an African-American player on a major league team. Baseball also has players from a wide variety of countries and cultures, exemplifying diversity and inclusion. It is very reassuring that the court extended that philosophy to include people with disabilities.

See:  https://scholar.google.com/scholar_case?case=15062551550943221829&hl=en&as_sdt=6&as_vis=1&oi=scholarr

Nothing on this site is intended to be legal advice.

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Posted in disability civil rights, Disability etiquette

Sometimes “political correctness” just means seeing people for who they are.

The term, “politically correct” has taken quite a beating in recent years.

The phrase can mean a lot of things, but these days it seems to be used in an insulting manner  – poking fun at people who are trying to be attentive to diversity in our society.

Granted, there are situations where “political correctness” is overdone. (Examples might be describing a janitor as a “sanitation engineer” or  a bald person as “folically challenged.”) But for every situation where the wording seems a bit overstrained, there are several where in fact, an individual is consistently defined not by who they are, but by what they have. (Examples here would be calling someone in a wheelchair “a cripple” or labeling someone with mental illness “a psycho.”}

Words matter, and the attached article does an excellent job of providing alternatives to some of the labels traditionaly used to describe people with disabilities. If there is a common theme, it is the recommendation to use “people first” language, where the fact that someone has a disability is not the first thing you learn about her. Because quite often, it ends up being the only thing that is remembered.

http://ncdj.org/style-guide/

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Nothing on this site is intended to be legal advice.

Posted in disability civil rights, Disability etiquette, Franklin d. Roosevelt

“Fear Itself”

The First Ball

Because Franklin D. Roosevelt had contracted polio, he was unable to use his legs. But he was counseled to hide this fact as much as possible, to keep him from appearing “weak.”

In the book, “Roosevelt’s Splendid Deception,” Hugh Gallagher chronicles the extraordinary lengths that Roosevelt took to hide his disability from the world. He believed that this would cause him to be perceived as “weak” in his ability to lead the country through very troubling times. Therefore, he asked the press not to photograph him in a wheelchair. And for the most part, the press complied.

Mr. Roosevelt also did other things to hide the fact that he was a wheelchair user. Although he had virtually no strength from the waist down, he built up his upper body and arm muscles so that he could literally hold himself up from whatever podium he was speaking from, disguising the fact that his legs were effectively useless. And in getting to the podium, he would enlist the help of someone (often his son) to walk with him. Grasping his escort’s arm, he would use that leverage and his upper body strength to propel his legs forward – one at a time – until he could reach the podium.

Was this the best way to handle his disability? It is hard to say – those were different times in a different world. But there are some myths and stereotypes that seem to have stubbornly persisted through the years – chief among them that people with disabilities are not quite “complete” and should not be treated as if they are. Perhaps that is why a doctor who is a wheelchair user recently wrote in the New York Times that her competence has often come into question – both from patients and colleagues. She also suggests that much of this anxiety might be mitigated if there were more physicians with disabilities on the scene.

https://mobile.nytimes.com/2017/12/06/opinion/doctor-wheelchair-disability.html?rref=collection%2Ftimestopic%2FDisabilities&action=click&contentCollection=health&region=stream&module=stream_unit&version=latest&contentPlacement=13&pgtype=collection&referer=https://www.nytimes.com/topic/subject/disabilities

As those with disabilities know, a common reaction to us is discomfort and anxiety. That can turn into fear, because people are reminded that at any time, they could join the ranks of the disabled population. And although Roosevelt did not mention his disability during his inauguration, surely he spoke from experience when he said, “the only thing we have to fear is fear itself.”

Note: The photographs below reflect a change in attitude that Roosevelt would have been very happy to see: The first one represents a perpetuation of the “splendid deception,” portraying him as standing tall and proud. Largely because of  pressure brought by disability advocates, a new statue was added in the late 90’s. This one shows him as he really was – every bit as proud and presidential.

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Nothing on this site is intended to be legal advice.