The ADA played a typically minor role in the recent election. Democrats made it clear they were for the disabled but did not propose specific new programs. Republicans barely mentioned the disabled except for a brief controversy involving Trump mocking a disabled reporter. With disability rights playing such a minor role in Republican politics one might think that Trump’s election means no change, but in fact a Trump presidency may lead to a significant narrowing of the ADA’s application and reduced federal enforcement action. More
After reading a recent blog in which the author asserted that “handicap” under the Fair Housing Act had the same meaning as “disability” under the Americans with Disabilities Act I thought it would be useful to re-visit this question, which I last wrote about in 2014. There have been a few new decisions, none decisive, and the bottom line remains the same. The 2008 amendments to the ADA changed the definition of “disabled,” but there was no equivalent amendment to the FHA. Ordinary principles of statutory interpretation require the conclusion that the two words no longer have the same meaning. For all the details see my earlier blog by clicking this LINK. It has been updated with the more recent decisions in this area.
A news story about a children’s theater group caught my eye this week because it so vividly illustrates the trouble a business can get into if it does not understand the law of reasonable accommodation under the ADA. You can read the story HERE. In brief, a potential theater member with a severe peanut allergy requested that the theater have a “no nuts” policy and that the director be willing if necessary to help the child with his epi-pen. The owner declined and probably said some unfortunate things about the request. Eventually the DOJ got involved and now, unless the matter settles, everyone will be off to court.
What went wrong? First, it is clear that the theater director did not understand the reasonable accommodation obligation and even more important, did not understand the “interactive process” that the ADA regulations encourage.* The name of the game in reasonable accommodation is trying to find a solution to the problem presented. A requested accommodation is not something to be accepted or rejected; it is something to be talked about. For a business this has the value of creating the appearance of reasonableness and, even more important, the opportunity to think about the issue carefully. In this case the first requested accommodation – making the theatre nuts free – is about as cheap and easy as it gets. All the theater owner had to do notify other parents that nuts were forbidden.
The second accommodation – willingness to use the child’s epipen – was more problematic. Many organizations are reluctant to administer prescription drugs. In a litigation happy society, it just seems like too big a risk to take. Here too, though, simply thinking through the problem and doing a little on-line research would have led to a different result. First, it only takes a little time with the internet to find that the Department of Justice has been suing or investigating child oriented business about epipens for more than 15 years. Unless you really want to take on Uncle Sam about whether peanut allergies are a disability** the battle isn’t worth fighting.
Perhaps more important, it seems likely that the theater already had a general release of some kind that all the parents had to sign. The owner’s demand for a special waiver of liability might not have been necessary and certainly looked like discrimination against one particular child based on a disability.
Finally, it would have been worth while to think through when an epipen is to be used. Epipens are for emergency use, and in many ways a child or adult in anaphylactic shock is like a person who has suffered a severe wound. Would the theater director really stood by and watch a child suffer because he didn’t want the risk of liability? Probably not. The refusal in advance to do something he would have done in the event of an emergency was pointless.
The moral of the story? Consider every request for accommodation as an invitation to try to solve a problem, and then think through – perhaps with the help of a lawyer – what risks would come from granting the accommodation and what risks might come from denying it. Reasonable accommodations are all about being reasonable, and that requires knowledge and a rational analysis of the various risks and costs involved.
* The “interactive process” is best defined in employment cases under Title I of the ADA and landlord tenant cases under the Fair Housing Act, but courts apply it in Title III cases as well.
**Many courts hold that food allergies are not disabilities. (See my blog HERE) DOJ disagrees, and the Supreme Court has not opined on the subject. Since DOJ will fight and has unlimited resources it isn’t the best opponent to take on with respect to this kind of claim.
Just a quick note concerning obesity. In an April 5, 2016 decision the Eighth Circuit joined the Sixth and Second Circuits to hold that even morbid obesity is not a disability unless it is accompanied by an underlying physiological disorder or condition. Morriss v. BNSF Ry. Co., 2016 WL 1319407, (8th Cir. Apr. 5, 2016). The Court’s discussion is thorough, but boils down to a straightforward reading of the ADA. The definition of “disability” in the ADA starts with the phrase “physical or mental impairment.” EEOC regulations define “physical impairment” as a “physiological disorder or condition,” and its interpretive guidance, according to the Court, states that weight is only a physical characteristic, not a physiological disorder, unless it is the result of some other physiological disorder. Obesity as the result of a thyroid disorder is a disability; obesity as a result of eating is not. Konishiki, the famous sumo wrestler, is not disabled.
The decision is notable as the first circuit court decision in a case decided after the 2008 ADA Amendments went into effect. The Amendments were broadly intended to expand ADA coverage, and there was some belief that morbid obesity would fit the more liberal standard. This does not mean the law is uniform. Some lower courts have found that morbid obesity is a disability in and of itself. Employers who want to rely on Morriss v BNSF Ry. need to make sure it is the law in their circuit, and carefully consider whether the obesity in question is not the result of some other disorder or condition.
My colleague William Goren (see his blogs at www.williamgoren.com/blog) passed along a recent interview with Daniel Goldstein (http://www.bna.com/fighting-accessible-websites-n57982065991) that shows, I think, a serious disconnect is between the disabilities rights community and ordinary American businesses with respect to web accessibility.
I’ll start with what Mr. Goldstein said about making a web site accessible. He said: “It’s pretty easy to resolve most of these barriers [to access]” and “the expense is usually small.” His examples of common problems including things like failure to properly use the “H1 tag” or to write code that properly moves the “focus” of a web page. “Pretty easy” and “small expense” are words whose meaning depends on the business involved. This blog was set up by myself using a WordPress template. I didn’t write any code, and I couldn’t find an “H1 tag” to save my life. I do know, because a web programmer helped me look at it, that this single page is created by about 1000 lines of computer code. If that code is wrong, fixing it would not be “pretty easy” for me or any of the tens of thousands of small businesses that use WordPress or similar template based web design tools. More