Settlement Agreement: Carilion Roanoke Memorial Hospital
Is the Texas House Violating the Americans with Disabilities Act by Refusing to Caption Legislative Hearings?
The Texas Observer
Disability rights experts are questioning the methods Capitol staff use to determine when to fill an accommodation request.
Plaintiffs File Lawsuit Against Seattle Mariners and Ballpark for Those With Disabilities
Lexology
A nonprofit disabilities-rights law firm filed a lawsuit on behalf of four disabled Seattle Mariners fans in October 2018 against the Mariners and the Washington State Major League Baseball Stadium Public Facilities District, which owns the team’s ballpark, T-Mobile Park. The four plaintiffs claim that the ballpark violated state and federal law, including the Americans with Disabilities Act of 1991 (ADA). These plaintiffs are Washington residents who claim they encountered issueswith seating, food service, or access to certain parts of the stadium and endured “second-class treatment” when they attended games at the ballpark.
On June 11, 2019, both the Mariners and the Washington State Major League Baseball Stadium Public Facilities District urged a Washington court via summary judgement to consider that claims over poor sightlines and seat distribution “are complex accessibility matters that have evolved and have had varying and inconsistent interpretations over time.”
According to the initial complaint, nearly all wheelchair-accessible seats are distant from the field or have obstructed views compared to other seats Additionally, in the stadium’s 100-level, the only wheelchair accessible seat is located in the Diamond Club, where tickets cost up to $500. In addition, gaps in the floor are hazardous, some food service counters are too high, and some line areas are too narrow for fans in wheelchairs.
On Tuesday, the defendants contended that because the stadium was constructed in 1997, the ballpark qualifies as a “new construction” under ADA guidelines. Specifically, the stadium operators argued that “. . . the [ADA] statute’s aspirational goals do not permit the law to be stretched so as to retrospectively create material new design and construction requirements for a 20-year-old facility . . . .” The Mariners and the stadium authority assert that although they will make changes within the stadium to improve accessibility, the particular request by the plaintiffs for a better view for those who require wheelchairs is unfair given that ADA requirements for sightlines did not exist when the stadium was built in 1997.
However, the four disabled fans argue that the stadium must greatly increase the number of wheelchair accessible seats near the playing field, specifically those in the first 15 rows. Conrad Reynoldson, an attorney with the nonprofit firm Washington Civil and Disability Advocate, stated in 2018 that fans whom require wheelchairs “. . . can’t have the same experience of being in the front row where they can hear the players talking, can see the action . . . they just want to feel like they’re given the same opportunity to enjoy the game like anybody else.” An attorney for the plaintiffs said they plan to file a response to this new summary judgement with the court.
Increasing wheelchair seating in T-Mobile Park could involve an expensive renovation given the current seating structure, but the lawsuit seeks to require such alterations to grant all fans access to the same experience regardless of their disability status. We will continue to follow this case as it is still ongoing.
Are loud restaurants an ADA violation for people with hearing impairment?
ABA Journal
People with hearing impairment can have difficulty understanding speech in a noisy restaurant, even with hearing aids. Noise also poses a problem for people with ringing in their ears and noise-induced pain, which can intensify with exposure.
Does the noise violate the Americans with Disabilities Act, which bars places of public accommodation from discriminating against people with disabilities? The Washington Post considers the question.
Daniel Fink, a retired Los Angeles doctor and a noise activist, contends that the law should apply. He recently presented a paper on the issue to the Acoustical Society of America.
“High-ambient noise levels pose an access barrier, just as curbs pose an access barrier for wheelchairs,” Fink told the Washington Post. “Auditory disorders are invisible disabilities. The problems associated with hearing loss are underestimated.”
Restaurant noise often reaches 70 decibels, at which only half of speech can be understood by people with normal hearing, according to the Post. At 75 decibels, people have to shout to be heard. Some restaurant noise reaches a decibel level in the mid-80s.
Noise is rising at many restaurants because table linens and curtains have been eliminated as part of a more modern or rustic vibe. Crowds contribute to the noise.
The simplest modification that restaurants can make is to turn down amplified music, Fink said.
But modifications that would fundamentally alter a business don’t have to be made under the law, according to Ruth Colker, a law professor at Ohio State University who has expertise in disability law. Modifications that are cost-prohibitive also are not required.
“I could imagine that a court would say the fundamental nature of a restaurant is serving food,” Colker told the Washington Post. “Is it fundamental to the nature of a restaurant to offer background noise? That is an untested legal question.”
Seventh Circuit: Obesity Alone Is Not A Disability Under the ADA (US)
Lexology
As we previously reported here, the issue of whether obesity is a legally-protected impairment is complex, and jurisdictions differ on the extent to which they consider obesity to be a disability under the Americans with Disabilities Act (“ADA”). On June 12, 2019, the United States Court of Appeals for the Seventh Circuit joined the Second, Sixth, and Eighth Circuits in holding that without evidence that an underlying physiological disorder caused the individual’s extreme obesity, a plaintiff’s weight does not qualify as an impairment under the ADA or the Equal Employment Opportunity Commission’s (“EEOC”) interpretive guidance.
In Richardson v. Chicago Transit Authority, the plaintiff, a bus driver weighing nearly 600 pounds, claimed that his employer took adverse action against him because of his morbid obesity in violation of the ADA. However, his employer – the Chicago Transit Authority, Chicago’s mass transit operator – countered that it had a legitimate, nondiscriminatory reason for its employment decision because Richardson exceeded the weight requirement to operate the bus, making it difficult, and potentially unsafe, for him to do so. The court considered two issues: (1) whether the Richardson’s obesity is an actual impairment under the ADA; and (2) alternatively, whether the employerperceived his extreme obesity to be an impairment.
Richardson argued that under Congress’s 2008 amendment to the ADA, courts must broadly construe “impairment” to include extreme obesity, with or without evidence of an underlying physiological condition causing or contributing to the obesity. However, the Seventh Circuit disagreed, reasoning that Congress had instructed the EEOC to alter some of its definitions, but made no such instruction with respect to the agency’s definition of impairment. Further, the court held that Richardson’s preferred interpretation of the EEOC’s guidance regarding the definition of the term “impairment” was overbroad. Instead, the court relied on the Eighth Circuit’s interpretation, which favors a “more natural reading of the interpretative guidance” and holds that an individual’s weight only qualifies as a physical impairment if it falls outside the normal range and it occurs as the result of a physiological disorder.
The court also rejected Richardson’s argument that his employer took adverse action against him because it perceived his obesity to be a disability. (Recall that the ADA protects individuals who are actually disabled, as well as those that may not be actually disabled but perceived by their employer to be disabled.) For Richardson to succeed on this claim, he had to prove that his employer discriminated against him not just based on its knowledge of his physical characteristic (obesity) but also based on its belief that this characteristic was an impairment under the ADA. The court found that Richardson failed to make this showing because the evidence suggested that his employer perceived Richardson’s weight as a physical characteristic that made it unsafe for him to drive, not as a disability. Further, the court rejected Richardson’s reliance on a First Circuit holding that a jury could find that an employer perceived an employee’s extreme obesity to be a physical impairment where the plaintiff presented expert testimony that obesity is a physiological disorder. The court reasoned that Richardson’s reading of that case was overbroad and he presented no such evidence; thus, he could not prove that his employer perceived his obesity to be a legally-protected impairment.
The Seventh Circuit is the fourth federal appeals court to hold that obesity, by itself, is not a physical impairment under the ADAA. However, other jurisdictions have reached the opposite conclusion, and this issue remains unsettled in others. Therefore, employers should continue to be cautious when making employment decisions involving this issue and should consult with counsel to ensure compliance in their particular jurisdiction.