Disabled, but not enough for job protections
Broad coalition aims to strengthen civil rights of the chronically ill
By Kristen Gerencher, MarketWatch
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Last update: 7:35 p.m. EDT Aug. 7, 2008

SAN FRANCISCO (MarketWatch) -- An irony of the landmark Americans with Disabilities Act has turned out to be that people who most need its protections often can't get them.
The ADA, signed into law in 1990 by President George H. W. Bush, was designed to give people with disabilities an equal crack at employment, public services and accommodations. It was hailed as a long-awaited recourse for those who face discrimination.

But a series of Supreme Court decisions beginning in the late 1990s narrowed the definition of disability and laid the groundwork for lower courts to do the same. That means many people who suffer from a chronic disease but manage their illness well aren't considered disabled and therefore aren't covered by the law -- even if an employer fires or refuses to hire them because of their disease.

The courts' decisions have resulted in a Catch-22 for people with a range of disabilities, including diabetes, cancer, epilepsy, muscular dystrophy and mental illness, said Jennifer Mathis, deputy legal director for the Bazelon Center for Mental Health Law in Washington.
"You can be disabled enough to be fired but not disabled enough to sue," she said.
"What tends to happen in ADA cases, particularly in the employment arena, where most of the problems have occurred, is people's medications will be used against them in considering whether they have a disability that rises to the level of the protections of the ADA," Mathis said.

That soon may change. Concern about the ADA has been percolating for years among disability groups and some lawmakers, but efforts to expand coverage and overturn the Supreme Court's interpretation of the law have won broad support only recently. The new consensus culminated in June, when the House of Representatives voted 402 to 17 to pass a compromise bill called the American with Disabilities Act Amendments Act.

Last week, Sen. Tom Harkin, D-Iowa, and Sen. Orrin Hatch, R-Utah, introduced a similar bill in the Senate. It has the support of more than 60 co-sponsors, including presidential candidates Barack Obama and John McCain. More than 200 organizations, including the U.S. Chamber of Commerce and the National Association of Manufacturers, back it as well.

Who's affected

The bill would help some of the three million Americans, or 1% of the population, who suffer from epilepsy, said Sandy Finucane, vice president legal and government affairs for the Epilepsy Foundation in Landover, Md.
"If you're not covered by the ADA because your seizures are periodic, or they don't occur frequently or are controlled by medication, then you're not protected from unfair discrimination," she said.
Many employers who know about an employee's epilepsy are afraid of seizures, even though many patients report their condition doesn't affect their workday, she said. "It's very clear that the reason many people are not hired is because of fear and stigma and not because they can't do the job."
That's material because people with epilepsy have an unemployment rate of 25%, about five times the national average, and the figure is nearly 50% for those whose seizures aren't well controlled, Finucane said. Those numbers haven't changed in 30 years.
"We need to do a lot more work to help get people with disabilities into the work force," she said. "We think that was one of the goals of the ADA, and hopefully we can move forward with that goal."

Rethinking diabetes

The new bill attempts to override the Supreme Court, which set the bar for disability so high that many cases are thrown out, said Dan Kohrman, chair of the legal advocacy subcommittee of the American Diabetes Association in Washington.
"This bill fundamentally is about the definition of disability," he said. "Unfortunately, for nearly 20 years most ADA...cases have turned on whether someone's disabled. Imagine a race or sex case where all the case is whether someone is white or black, male or female. No one would put up with that."
People with diabetes are forced to monitor their blood sugar throughout the day and may have to make adjustments based on food consumption, exercise and other factors, he said.
"It's a 24/7 disease, and yet most people with diabetes have been found not to be disabled," Kohrman said. "The business community has acknowledged that's fundamentally unfair and not what Congress intended."
If the compromise bill passes as expected, it likely won't lead to frivolous lawsuits, he said.
"This law isn't going to make it easy for workers to claim discrimination," Kohrman said. "These are hard cases, and where the facts don't support it they're going to lose."
Mathis agreed that if the bill passes, it wouldn't change the substance of the protections in the Americans with Disabilities Act but would change who's covered by them.
"A lot of resources are being spent around the issue of whether a person has a disability, and this (bill) would shift those resources more around the merits of the case," she said. "I don't think it will significantly change the number of cases that are brought."

Managing at work

Stephen Orr, 58, a pharmacist in Rapid City, S.D., said he knows firsthand how patients who responsibly manage their conditions are vulnerable under the ADA.

A Type 1 diabetic for 22 years, Orr started a job at a Wal-Mart pharmacy in Chadron, Neb., in early 1998 with the understanding that he could take an uninterrupted half-hour lunch break in order to keep his blood sugar from dropping dangerously low. But the manager who had agreed to that provision soon left the company. The new manager told Orr he could no longer close the pharmacy to eat and check his blood sugar and would have to squeeze in meals between helping customers.

Orr testified before the Senate Committee on Health, Education, Labor and Pensions in November that he couldn't put off eating lunch indefinitely because his health was deteriorating. He said he tried talking with the new manager on several occasions but the manager wouldn't budge. Soon after Orr returned to his habit of briefly looking after his blood sugar in the middle of the day, the manager terminated him.

"I asked him why I was being fired and he stated straight out it was because of my diabetes," Orr said.
He sued Wal-Mart under the ADA but was deemed not disabled. The U.S. District Court granted summary judgment against him and his appeal was rejected based on the Supreme Court's previous interpretations. "I still to this day feel like I would have won the case in a jury trial," Orr said.
Daphne Moore, spokesperson for Wal-Mart in Bentonville, Ark., wouldn't discuss the particulars of the case but reiterated that the company was not found in violation of the ADA.
"It's, of course, always our goal to comply with all laws governing employment," she said.
Wal-Mart has been following the progress of the ADA Amendments Act but hasn't taken a position on it, Moore said.
The company is a member of the U.S. Chamber of Commerce, which has been involved in negotiating the compromise bill, said Randy Johnson, a chamber vice president who heads the labor, immigration and employee benefits policy division.
"This bill is not going to be a big disruption in the employer community," he said.
Kristen Gerencher is a reporter for MarketWatch in San Francisco.

August 10, 2008
Disabilities
Moves to Strengthen Disabled Access Law
By JULI S. CHARKES, NY TIMES

Peekskill

ON a Saturday afternoon here in her hometown, Lisa Tarricone wants a cup of coffee from her local coffee shop. For Ms. Tarricone, a director at Westchester Independent Living Center who uses a wheelchair, that everyday wish brings a series of maneuvers.

First is a call to the shop to ask that a rudimentary wooden ramp be positioned atop a deep step; then a request to an employee to prop open the door so Ms. Tarricone can use both arms to wheel herself up the nonregulation ramp (no handles; improper pitch); finally, the navigation of a crowd of customers that is complicated on this day by a performer stationed near the door.

It is time-consuming and cumbersome “and all of it in front of an audience of people who are staring while you’re trying to get inside, maybe annoyed that you’re letting the air-conditioning out — just for the sake of a latte,” she said several days later.

Life in a wheelchair is a series of carefully calculated moves, Ms. Tarricone said, and some of the obstacles are not merely inconvenient — they are also a violation of the federal Americans With Disabilities Act, enacted 18 years ago last month.

Advocates for people with disabilities hope such incidents of noncompliance will diminish with recent changes to state law that allow for a new level of enforcement of existing A.D.A. law, said Michael Hellmann, a Westchester lawyer specializing in disability law. “Westchester businesses are filled with A.D.A. violations,” he said. “Now that it’s part of New York law, they run a much greater risk of having legal action taken against them.”

Federal law prohibits discrimination against anyone with a disability, which it defines as a physical or mental impairment that substantially limits a major life activity. There are 50 million Americans with a disability, according to the United States Department of Justice based on the 2000 census. About 147,000 live in Westchester, based on figures compiled at the same time by the county.

Until now, legal recourse for anyone encountering a violation of the Americans With Disabilities Act was limited to filing a complaint with the federal Justice Department, which had a backlog of cases, or pursuing a federal lawsuit, Mr. Hellmann said.

In January, the New York State Division of Human Rights incorporated a section of the federal A.D.A. covering businesses or places of public accommodation. That allows state enforcement of the part of the A.D.A. requiring “places of public accommodation to make reasonable modifications in policies, practices and procedures when providing access for a person with a disability,” said John P. Herrion, director of disability rights for the State Division of Human Rights.

The law not only provides an additional resource for bringing a complaint, but also provides a broader definition of a disability, protecting individuals who were previously excluded from the federal definition, he said.

Mr. Herrion stressed that the division is sensitive to the costs to businesses and pointed to considerations within the Americans With Disabilities Act that are intended to prevent “undue burden” or “fundamentally alter the nature of the public accommodation,” he said.

But determining that discretion can be difficult, particularly as misinformation and confusion over A.D.A. compliance are commonplace — even among lawmakers and business advocates.

James Lorr, a co-owner of the Peekskill Coffee House where Ms. Tarricone occasionally ventures for coffee, said his operation complied with the A.D.A, pointing to remodeling the bathroom as one change. He also pointed to the wooden ramp that sits inside the cafe for use whenever wheelchair accessibility is needed, calling it a reasonable accommodation given the building’s historic status.

BUT Mr. Hellmann dismissed the use of a temporary ramp by any business, pointing to requirements in the A.D.A. about the pitch and stability of access ramps. He said that businesses often fail to go far enough in adhering to A.D.A., part of what he described as the myths of complying with the law. The biggest myth, by far, he said regards the so-called grandfather clause.

“Unlike building codes, the A.D.A. does not have a grandfather clause,” Mr. Hellmann said. “No matter how old a building, it is not totally excused from complying with the A.D.A.”

Some of the education for businesses is being provided on the county level. Westchester’s Office for the Disabled regularly dispatches staff members to investigate businesses that may not be complying with the A.D.A. The purpose, said Evan Latainer, the director of the office, is to help businesses understand what they must do to avoid a next step of possible litigation.

On a recent weekday morning, Anna M. Masopust and Andrea Sadowski of the county’s Office for the Disabled spoke with staff members at a local gym about the use of an elevator designated for people with a disability.

Frank Sessa, 84, a Yonkers retiree who frequents the club, paused from exercising in the pool to describe his aggravation when gym employees continuously misplaced the elevator key. He said he relies on the key for access to the pool and locker room, adding, “The custodian finally duplicated the key for me.”

Having his own key has brought only partial satisfaction, he said, because the elevator is regularly used to transport freight. “It’s illegal to use this lift for anything other than a person with a disability,” Ms. Masopust said, pointing to a plaque on the adjoining wall that states what she was saying.

Besides changes in state law, changes by the county have added resources for disability claims. Last month, the county Human Rights Commission used county government support to achieve countywide jurisdiction over its human rights law, said Delores Scott Brathwaite, director of the division. Previously, the commission jurisdiction was excluded from municipalities like White Plains, Yonkers, Mount Vernon, Mamaroneck, Larchmont, New Rochelle and Peekskill.

Advocates for the disabled say the recent changes in state and county law are important in educating the public on what is guaranteed under the federal law. Ms. Tarricone and others stressed how changes in law address not only the logistical rights of access, but also help transform society’s views about a segment of the population they say has been historically overlooked.

“There are millions of physically or mentally disabled people who deserve something better,” said Howard W. Rasher, a retired lawyer and disability advocate from Briarcliff Manor. “Now, we can put meaningful teeth into the existing laws.”

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