Tag: americans with disabilities act

Feds Delay ADA Pool Lift Rules Again

Did anyone think the U.S. Department of Justice was really up for a flood of “pool closes for fear of ADA liability” stories over Memorial Day weekend? So instead they’ve announced another delay in their rules, this time carrying them until safely after the election, specifically Jan. 31. The Department is murmuring about being “flexible” when it eventually gets around to enforcing the mandatory permanent-lift regulations, which have raised a storm of criticism (more here and here) as unreasonably burdensome to pool operators. The House has passed a rider cutting off funds for the enforcement of the regulation, over objections from Rep. Steny Hoyer (D-MD) and others, but the fate of the rider in the Senate is considered less promising.

New York Times Covers ADA Shakedown Lawsuits

As the New York Times reports today, mass filing of accessibility lawsuits against Main Street businesses, long a cottage industry for Florida and California lawyers, has now reached Gotham in a big way:

A small cadre of lawyers, some from out of state, are using New York City’s age and architectural quirkiness as the foundation for a flood of lawsuits citing violations of the Americans With Disabilities Act.

The lawyers are generally not acting on existing complaints from people with disabilities. Instead, they identify local businesses, like bagel shops and delis, that are not in compliance with the law, and then aggressively recruit plaintiffs from advocacy groups for people with disabilities.

The cases then settle for a few thousand dollars in what are described as legal fees, as well as a payment (token or otherwise) to the named client, and a promise to relocate or replace the shelf or doorknob or paper towel dispenser whose ADA-noncompliant status was complained of in the suit.

I’ve been covering these shakedown operations for years, and some other New York press outlets have already gotten to the same case histories in livelier fashion, as with the New York Post, which last June reported on the same attorney (Bradley Weitz) and client (Zoltan Hirsch) who figure prominently in today’s Times report. (Best detail from the Post: “[Hirsch] targeted a pedicure station at the Red & White Spa in SoHo—even though he has no feet.”) Still, the Times adds some helpful details, such as that the number of similar suits nationwide has more than doubled in five years (to 3,000, “including more than 300 in New York”) and that New York’s pro-plaintiff city and state Human Rights Laws encourage things by allowing damages for complainants, thus raising the suits’ extraction value beyond the level of attorneys’ fees. (California has the worst ADA shakedown racket—to the point where liberal Democratic senator Dianne Feinstein recently threatened to intervene unless Sacramento does something to clean it up—because of the distinctively high damages available under its Unruh Act).

Inevitably, the Times also quotes advocates including a law professor, in this case Ruth Colker of Ohio State, defending the use of the law in this fashion. That Colker and other top ADA specialists in legal academia actually defend the law’s use as a shakedown mechanism—after all, doesn’t that deter violations?—is about as severe a judgment on the ideological state of legal academia as anything in Schools for Misrule.

‘My Disability Made Me Do It’

James J. McDonald, Jr., a California attorney with the firm of Fisher & Phillips, has long been one of the more incisive critics of the employment provisions of the Americans with Disabilities Act (ADA), in particular the law’s coverage not just of physical handicaps like deafness and paraplegia but also emotional, mental and behavioral disabilities, which often bring with them a high potential for disrupting the workplace. Last month McDonald spoke on this topic at the annual convention of the Society for Human Resource Management (SHRM), the professional organization of the HR field. Here are some highlights from his speech of cases in which employers, he said, were required to accommodate employees:

*A 911 operator whose narcolepsy made him [or her? – W.O.] fall asleep on the job.

*A county custodian with borderline mental retardation who was twice criminally convicted of stealing items from offices she was cleaning.

*A medical transcriptionist with obsessive-compulsive disorder who repeatedly came to work late, or not at all.

*An employee with bipolar disorder, who, when given a performance improvement plan, threw it across the room and shouted profanities. She later kicked her desk and said “They’ll regret this.”

To find out more about why the language of the ADA has led to such cases, how the Ninth Circuit (joined by the Tenth) has developed legal standards even more protective of misbehaving employees than those proposed by the Equal Employment Opportunity Commission (EEOC), and why McDonald thinks it is (perversely) shrewd for employers to keep themselves in ignorance about some employee disabilities, follow the link. (In this 2010 paper, by the way, McDonald gets into detail on a long list of ADA/misconduct cases, each seemingly more extreme than the last.) It’s worth remembering that the U.S. Supreme Court for a while attempted to interpret the ADA narrowly so as to focus the law’s benefits on traditional disabled groups, only to be slapped down by the George W. Bush-era U.S. Congress, which overrode those decisions (to general applause in the press) and instead instituted ultra-broad definitions of disability for ADA purposes. Earlier on the ADA here, here, here, etc.

Wal-Mart v. Dukes: The Court Gets One Right

In today’s decision in Wal-Mart v. Dukes, the Supreme Court unanimously found that the Ninth Circuit had jumped the gun in certifying what would have been one of the largest class actions in history, a job-bias action against the giant retailer on behalf of female employees. A five-justice majority led by Justice Scalia found that the plaintiffs had clearly not met the requirements needed to have the case certified for class treatment; four dissenters led by Justice Ginsburg would have sent the case back for more consideration.

While some press commentary simplistically treated this case as a “Which Side Are You On” parable of workplace sexism, both the majority and the dissent spend much time grappling with more lawyerly issues specific to class actions as a procedural format, such as the exact role of “common questions,” whose implications will inevitably be felt in litigation far removed from the employment discrimination context. To sweep hundreds of thousands of workers (or consumers or investors) into a class as plaintiffs even if they personally have suffered no harm whatsoever – to use sexism at Arizona stores to generate back pay awards in Vermont, and statistical disparities to prove bias without allowing defendants to introduce evidence that a given worker’s treatment was fair – bends the class action mechanism beyond its proper capacity. Also to the point, it is unfair.

Because both class action law and employment discrimination law are in the end creatures of federal statute, the elected branches will have the last word. Advocates of expansive employment litigation can be expected to introduce legislation in Congress to overturn key elements of today’s decision, a strategy that has worked well for them in the past on issues like back pay, “disparate-impact” law and the scope of coverage of the Americans with Disabilities Act (ADA). While we will soon be hearing a drumbeat to that effect, Congress should resist it, because the majority’s opinion today is to be preferred as a matter of policy, fairness, and liberty.

In particular – to take just one of the policy issues in employment law brought to center stage by today’s case – plaintiffs seek to establish that Wal-Mart’s policy of decentralized manager discretion over pay and promotions is itself an unlawful practice because (they argue) it allows too wide a scope for (unconscious or otherwise) bias on the part of store managers, notwithstanding the company’s adoption of overall policies banning sex bias. The majority led by Scalia marveled that Wal-Mart’s corporate non-policy – that is, its decision not to micromanage its local executives on personnel choices – would wind up being legally interpreted as amounting to an affirmative centralized decision to discriminate. But it’s not – and we should be glad lawyers at every big company aren’t yet insisting that every local HR decision be sent to a distant headquarters for fear of liability.

John Stossel, the ADA, and the Art of Selective Outrage

On September 3 John Stossel’s Fox Business show took an unsparing look at the seldom-criticized Americans with Disabilities Act on its 20th anniversary (I was a guest commentator during part of the show, including this segment.) Now the American Association of Persons with Disabilities has reacted with outrage and urged its constituents to fire off protest letters to Stossel, to Fox, and also to me since my criticisms of the law were featured on the show.

But it didn’t play fair. In a related syndicated column, after recounting some of the abuses and excesses associated with ADA litigation – including settlement mills that file assembly-line suits against Main Street businesses and Equal Employment Opportunity Commission demands that alcoholics in rehab be put back on safety-sensitive jobs – Stossel says prolonged litigation over such matters means “more money for the parasites”. Harsh words, perhaps, but in context he’s clearly referring to those who profit from ADA litigation, and in particular opportunistic lawyers.

Now observe how the AAPD edits his words. By cutting most of what precedes “more money for the parasites,” it encourages readers to assume that Stossel is somehow referring to disabled persons themselves as parasites. And in case readers don’t pick up on that implication, AAPD makes it explicit: Stossel, it charges, “sees people with disabilities as manipulative parasites.” For the past day, disabled persons have been dashing off furious emails to Stossel (and cc’ing them to me) on variations of the theme, “How dare you call me a parasite!?”

But that’s not what he said. And AAPD owes both its readers and Stossel an apology for pretending otherwise. There’s nothing wrong with having a public debate over the ADA, but wouldn’t it be more constructive to respond to what Stossel actually did argue?

On Tonight’s John Stossel Show (FBN)

I’m a guest on tonight’s John Stossel program on the Fox Business Network, on the subject of the consequences of the twenty-year-old Americans with Disabilities Act (ADA). The show was shot live to tape yesterday in New York and was fascinating throughout; even those who think they know this subject well will learn a lot. I’m also quoted in John’s latest syndicated column on the same issue.

Among the highlights of the taping: a disabled-rights lobbyist defended several extreme applications of the law, including the notion that it might be appropriate to force networks to hire someone who suffers from stuttering as on-air television talent. We also shed some light on the state of California’s up-to-$4,000-a-violation bounty system for freelancers who identify ADA violations in Main Street businesses, and the case for at least requiring complainants to give business owners notice and an opportunity to fix an ADA violation before suing. (The disabled-rights lobby has managed to stifle that proposal in Congress for years.) Also mentioned: the suit against the Chipotle restaurant chain recently covered in this space.

Other recent coverage of the ADA here and here.

ADA’s 20th Anniversary

Today marks the 20th anniversary of the Americans with Disabilities Act, and celebratory discussions, events and rallies are underway (sometimes with taxpayer help) in Washington, D.C. and around the country. Few if any of the events will include any panelists who are skeptical about the law, and indeed much press coverage nowadays treats the ADA as if it were uncontroversial, with at best a nod to libertarian commentators who see it as a coercive and fabulously expensive government venture into what ought to be private decision-making. When Kentucky Senate candidate Rand Paul recently voiced some relatively mild criticism of the law, he drew heated criticism for days.

Which is not to say the ADA and related legislation does not continue to generate startling and unsettling results on a regular basis. Thus in recent months a New Jersey jury ordered a rheumatologist to pay $400,000 for not providing a deaf patient with a sign language interpreter at his own expense; the Ninth Circuit ruled that the law may require movie theaters to provide captions and descriptions for blind or deaf viewers; a federal appeals court ruled that the nation’s paper currency unfairly discriminates against the disabled and must be redesigned (thus taking a different view from the National Federation of the Blind, which doesn’t think there’s a problem); a police dispatcher won a settlement in her lawsuit saying she was unfairly discriminated against because of her narcolepsy (tendency to fall asleep at inappropriate times); a large online tutoring service agreed to provide interpreters; miniature golf courses learned they will have to make 50 percent of their holes accessible to wheelchair users; and so forth. On Friday the Department of Justice announced that it would revisit the high-stakes question of whether and to what extent website operators must make their designs and services “accessible” to disabled computer users, perhaps in onerous and expensive ways.

One reason for the law’s immunity from criticism is that it is defended as a matter of identity politics: if you’re against it, then you must be against the people it protects. So it is treated as rude, not merely provocative, to bring up the failure of the original ADA premise that the new law would “pay for itself” by increasing the labor force participation of the disabled (the rate declined instead). Or to question the law’s “all for one, one for all” extension of the disability label to cover alcoholics, the mentally ill, and the mentally retarded, groups whose problems have historically been seen as quite different from those of the blind, deaf or paraplegic. Or to mention the money-driven ADA “filing mills” in California, Florida and other states under which complainants roam the land filing hundreds of similar complaints against local businesses which their lawyers then convert into assembly-line cash settlements.

No, the most suitable way to mark an identity-politics milestone may be to turn to those who have been obliged to think through some of the identity-politics issues from the inside. Among those who’ve criticized the ADA from a disabled perspective are Russell Redenbaugh, a blind businessman and member of the U.S. Civil Rights Commission (“My own fear is that the ADA implementing regulations can have a chilling effect on the hiring of the disabled.”), attorney and wheelchair user Julie Hofius (law makes job-seeking harder by “inhibiting free discussion between interviewer and interviewee”), and Greg Perry, author of the book Disabling America: The Unintended Consequences of the Government’s Protection of the Handicapped (“caring by gunpoint”). Their writings might be a place to start in figuring out whether we should aspire to another 20 years of ADA more intense than the last.