DBTAC: Great Lakes ADA Center

Welcome to the DBTAC:
Great Lakes ADA Center's monthly Newsletter

Trainings & Events

The Great Lakes Center offers technical assistance on a variety of issues under the ADA and Accessible Information Technology

Federal Agencies

The Great Lakes Center offers customized trainings on a variety of issues under the ADA and Accessible Information Technology.

Great Lakes Affiliates

The Great Lakes offers resource materials on a variety of issues under the ADA and Accessible Information Technology.

Resources from the Technical Assistance Desk

In the Headlines

The DBTAC Great Lakes ADA Center has begun providing technical assistance over its toll-free line between the hours of 8:00 AM and 4:30 PM CST on January 1, 2007. Individuals may also submit questions through the Center's on-line contact form. Electronically submitted questions will be responded to within 2 to 3 business days. If you have questions about the technical assistance services provided by the Center you may contact Peter Berg, Project Coordinator of Technical Assistance and Employer Outreach, by calling 312-413-1407 (V/TTY). Read more about the Services of the DBTAC Great Lakes Center at http://www.adagreatlakes.org/ProgramsAndServices/.

The U.S. Department of Justice (DOJ) has added several new technical assistance documents to the ADA Business Connection Page on its web site. The purpose of these materials is to illustrate the benefits for businesses when complying with the ADA. The 3 new documents are:

• Accessible Customer Service Practices for Hotel and Lodging Guest with Disabilities
• Building a Diverse Customer Base
• Tax Incentives for Business

Read more about the DOJ's new technical assistance documents at http://www.ada.gov/business.htm#Anchor-Accessible-35882.

The U.S. Congress has extended the Work Opportunity Tax Credit (WOTC) through the end of 2007. The WOTC extension was for two years with the first year being retroactive to January 1, 2006. Employers may claim a maximum tax credit of $2400 when they hire individuals with disabilities meeting certain criteria. The credit can be claimed during the first year of employment. Read more about the Tax Credits at http://www.doleta.gov/business/Incentives/opptax/.

The U.S.Department of Transportation (DOT) is proposing extending the ADA regulations to all passenger vessels, including foreign-flagged cruise ships. The regulation proposals address the policies, practices and procedures of passenger vessels regarding the transportation of passengers with disabilities. The proposal doesn't address architectural barrier issues as the U.S. Access Board is currently working on guidelines for access to passenger vessels for individuals with disabilities. The DOT is accepting public comments on the proposed regulatory changes through April 23, 2007. Read more about the Proposed Regulations at http://dms.dot.gov/reports/fr.htm.

The Office of Special Education and Rehabilitative Services (OSERS), U.S. Department of Education has released a CD ROM version of the Tool Kit on Teaching and Assessing Students with Disabilities: Parents' Materials. It is designed to assist parents and states in their efforts to work together to raise the achievement of all students with disabilities. The Parent Tool Kit offers a collection of resources including assessment, instructional practices, behavior and accommodations. Read more about the CD Rom at http://www.osepideasthatwork.org/.

The U.S. Department of Justice (DOJ) has announced 2 new settlement agreements under its Project Civic Access initiative. The initiative was launched to insure that residents with disabilities have full access to the wide range of programs, services and activities offered by state and local government entities. The latest agreements involve:

• Kanawha County, West Virginia
• Metro 911 of Kanawha County, West Virginia

Read more about the settlement agreements at http://www.ada.gov/civicac.htm#Anchor-49575.

The General Services Administration (GSA) has released a checklist for federally leased facilities. The Architectural Barriers Act (ABA) Accessibility Standards contain provisions specific to leased facilities. The standards address access to accessible routes to primary function areas, restrooms, and other spaces and elements. The new standards will apply to facilities leased by GSA after February 6, 2007. Read more about the Checklist at http://www.gsa.gov/Portal/gsa/ep/channelView.do?pageTypeId=8195&channelPage=%252Fep%252Fchannel%252FgsaOverview.jsp&channelId=-12937.

The U.S. Department of Labor has announced that it is seeking information and comment from the public on the Family and Medical Leave Act (FMLA) and its implementing regulations. The request for information (RFI) was published in the Federal Register on December 1^st. Information on submitting comments on the FMLA regulations may be found on the DOL web site. Read more about the Public Comments at http://www.dol.gov/opa/media/press/esa/ESA20062032.htm.

The U.S. Department of Justice has posted the latest issue of its Disability Rights Online News on its web site. The document is a bi-monthly update about the DOJ's Civil Rights Division's activities in the area of disability rights. Read more about the Newsletter at http://www.ada.gov/newsltr1206.htm.

Great Lakes In Focus

The U.S. Department of Justice (DOJ) has announced the release of a new technical assistance document entitled, "The ADA Best Practices Tool Kit for State and Local Governments".located at http://www.ada.gov/pcatoolkit/toolkitmain.htm The purpose of the technical assistance document is to assist state and local officials in improving compliance with Title II of the Americans with Disabilities Act (ADA). The DOJ plans to release the new technical assistance document in several installments over the next 10 months

The Tool Kit is designed to instruct state and local government officials on how to identify and fix problems that prevent people with disabilities from having equal access to state and local government programs, services, and activities. It will also provide information on how to conduct accessibility surveys of buildings and facilities to identify and remove architectural barriers.

The first installment of the document now available on the DOJ web site includes:

• About This Tool Kit is located at http://www.ada.gov/pcatoolkit/abouttoolkit.htm. A (PDF) version of "About this Tool Kit" is also available at http://www.ada.gov/pcatoolkit/abouttoolkit.pdf
• Chapter 1, ADA Basics: Statutes and Regulations is located at http://www.ada.gov/pcatoolkit/chap1toolkit.htm. A (PDF) version of "Chapter 1, ADA Basics: Statutes and Regulations" is also available at http://www.ada.gov/pcatoolkit/chap1toolkit.pdf
• Chapter 2, ADA Coordinator: Notice and Grievance Procedure is located at http://www.ada.gov/pcatoolkit/chap2toolkit.htm. A (PDF) version of "Chapter 2, ADA Coordinator: Notice and Grievance Procedure" is also available at http://www.ada.gov/pcatoolkit/chap2toolkit.pdf
• Chapter 2, Addendum: Title II Checklist is located at http://www.ada.gov/pcatoolkit/noticetoolkit.htm. A (PDF) version of "Chapter 2, Addendum: Title II Checklist" is also available at http://www.ada.gov/pcatoolkit/noticetoolkit.pdf

Please continue to visit the Chronicle to get information about future releases of the tool kit. To get print copies of the tool kit materials please contact the DBTAC Great Lakes ADA Center by calling (800) 949-4232 (V/TTY) or by visiting the on-line contact form at http://www.adagreatlakes.org/WebForms/ContactUs/

Accessible Technology

The DBTAC Great Lakes Accessible Technology Initiative provides individuals, businesses, governmental entities, and organizations with technical assistance, training, referrals, materials, and resources on information technology and its accessibility. The Center's trainings are customized to fit the specific needs of the organizations requesting the presentations.

Visit the accessible technology section at http://www.adagreatlakes.org/AIT/ of the Great Lakes web site for more information on the services provided by the Center.

To get additional information about accessible technology visit the Accessible Technology Bulletin at http://www.adagreatlakes.org/Publications/ATBulletin/.

For technical assistance questions contact the Great Lakes Center by calling (800) 949-4232 (V/TTY) or by visiting the on-line contact form at http://www.adagreatlakes.org/WebForms/ContactUs/.

The Docket

Kampmier V. Emeritus Corp

Holding:

The Court of Appeals for the Seventh circuit (IN,WI,IL) held that the plaintiff/ Appellant, Ms. K, failed to establish a claim of discrimination under the Americans with Disabilities Act. The Appellate court thus affirmed the trial court's grant of summary judgment to Defendant/ Appellee. The Court based its ruling on two grounds: First, the Plaintiff's disabling condition, endometriosis, did not constitute a disability within the meaning of the ADA. It was based on the fact that there was no showing that the medical condition affected any "major life activity". Second, the Court held that, since Plaintiff was claiming difference in treatment, she was required to invoke the indirect burden-shifting method of proof to establish that she was treated less favorably from a non-disabled employee.

Facts:

Plaintiff/Appellant Shannon K., a practical nurse, was terminated by E Corporation that operates assisted living communities, on the ground of job abandonment or excessive, undocumented absences. Ms. K requested leave for a two week period in order to have a hysterectomy to relieve the effect of her endometriosis. It is a medical condition in which tissue similar to that found in the lining of the uterus (the endometrial stroma and glands, which are only located inside the uterus) is found elsewhere in the body. Ms. K was granted the requested leave but was required to submit a doctor's verification. When no such notification was forthcoming, despite multiple calls to both Ms. K and her physician, she was terminated under Defendants attendance policy.

In her court complaint, Ms K alleged disability discrimination as well as sex discrimination and retaliation. In her ADA claim, she alleged that, as a person with a disability, she was treated differently from non-disabled individuals.

Discussion

The court held that Ms. K's chronic medical condition was not covered under the ADA. This was so even though she has had an average of one to two surgeries a year, including fifteen laparoscopic surgeries and cervical scrapings, had pregnancy complications with both of her children and had an ectopic pregnancy. The Court accepted Ms. K's claim that her condition flairs up a week or two before and after her menstrual periods, and for over a month after many of her surgical procedures. However, she did not inform Defendant of her medical condition. She never requested any accommodation nor did she ever take any leave on account of it.

Because Ms. K had no direct evidence of discrimination, she was required to prove her case using the indirect, burden shifting method. Under that formulation, she has the burden of showing that (1) she was disabled within the meaning of the ADA, (2) she was meeting her employer's legitimate expectations, (3) she was subject to an adverse employment action, and (4) similarly situated non-disabled employees received more favorable treatment. The court held that Ms. K did not establish the first and fourth prongs.

In holding that Ms. K's medical condition was not an ADA,-covered disability, the court found that she had not established that she was limited in the "performance of one or more major life activities." She testified that she cleans her house, cooks without limitation, plays with her children, does her own shopping, and dresses and grooms herself. She had two natural pregnancies. There is also no limitation in her ability to work, illustrated by the fact that she had requested no accommodation and had routinely worked 16 hour shifts. She had taken no leave due to her condition. The court noted that, while her condition is painful, it does not rise to the level of a covered ADA disability.

Although the court did not have to reach the issue, it also found that Ms. K did not show that a non-disabled employee had been treated differently.

Comments:

This case illustrates that it is the alleged disabled person's burden to factually demonstrate the limitation in the performance of one or more major life activities. While it is an individualized factual showing, some readily apparent conditions, such as a significant visual or hearing impairment, a lingual dysfunction such as a speech stammer, or those with mobility issues, the limitation is assumed or easily inferred. However, with many non-physically apparent conditions, such as diabetes or, as here, endometriosis, the person invoking the ADA must factually demonstrate the existence of a limitation in a major life activity. That was not done, at least to the Court's satisfaction.

This case is not a usual ADA matter where the issue concerns whether the employer has satisfactorily made a reasonable accommodation to the person with a covered disability. Rather, it relates to the issue of equal or disparate treatment that arises more commonly under Title VII. The more usual ADA situation relates to accommodation or an exception from the norm while other forms of discrimination, such as race and sex discrimination matters, generally concern inclusion or the equal treatment of excluded individuals. In that situation, it is important that the ADA claimant, demonstrate that she was less favorably treated than was a similarly-situated non-disabled person. This was not done by Ms. K.

Technical Assistance Desk

Question: I have an employee that is pregnant and is currently unable to work because of some issues with the pregnancy and has exceeded the allowed number of absences. This employee has not worked long enough to qualify for the Family and Medical Leave Act (FMLA.) What are my obligations under the ADA regarding this employee as she has requested leave as an accommodation?

The ADA prohibits covered employers from discriminating on the basis of disability in all employment practices. As an employer you would handle this employee's request for a reasonable accommodation as you would handle any other request for an accommodation based on a medical condition. The request from the employee triggers the interactive process and dialogue should occur between you and the employee.

During the interactive process an employer has the right to request documentation of a disability when the need for the accommodation or the disability is not apparent. An employer only has the right to receive documentation relating to the specific medical condition/disability for which the individual has requested the accommodation. The employee is not obligated to provide nor is the employer entitled to receive a complete medical history.

Pregnancy in and of itself is not a disability under the ADA. The definition of disability under the ADA is:

• A physical or mental impairment that substantially limits one or more major life activities or:
• A record of such an impairment or:
• Being regarded as having such an impairment.

Additionally, an employee must be qualified to perform the essential job functions to be covered by the law. If an individual is unable to perform the functions of the job with or without a reasonable accommodation then they are not a qualified individual with a disability under the ADA.

There may be under lying medical conditions in addition to the pregnancy that substantially limit a major life activity and therefore would be covered by the ADA. An employer is obligated under the law to accommodate the functional limitations of the covered disability. An employer must provide a reasonable accommodation when it is needed to provide equal access to the application process, to allow a qualified individual to perform the essential functions of the job or to provide equal access to a benefit of the employment.

The requirement to provide the accommodation is limited to the point where it poses an undue hardship for the employer. An undue hardship is something that entails significant difficulty or expense.

If you determine from the documentation from the employee that this employee is not substantially limited in a major life activity then there is no responsibility to provide an accommodation under the ADA. The Equal Employment Opportunity Commission (EEOC) enforces the Pregnancy Discrimination Act, which prohibits discrimination on the basis of disability. You may contact the EEOC by calling (800) 669-4000 or by visiting their web site at www.eeoc.gov to get additional information about this federal law.

If the employee has a covered disability then you would look at providing an effective accommodation that doesn't pose an undue hardship. In this situation it would likely be a modification of the absenteeism policy and additional time off.