Understanding the Americans with Disabilities Act

October 1, 2002

By: Robert H. Panman

Although all Titles of the ADA strive to elimination of discrimination against persons with disabilities, each Title has different rules, regulations, affirmative defenses and remedies available to plaintiffs. Title I governs employment situations, Title II governs public entities and Title III governs access to public accommodations and services.

Employers Do Not Violate ADA Where An Employees' Disability Poses A Direct Threat To His Own Health

Although Title I of the ADA protects disabled persons from job discrimination, it provides that employers "may include a requirement that an individual not pose a direct threat to the health or safety of other individuals in the workplace." The Equal Employment Opportunity Commission ("EEOC") expanded this to allow employers to screen out potential workers whose disabilities created a risk on the job to the employees' own health or safety. In Chevron U.S.A., Inc. v. Echazabal, 2002 DJDAR 6379, the United States Supreme Court held that this EEOC regulation was permissible.

There, plaintiff worked for an independent contractor at an oil refinery owned by Chevron. He applied for a job directly with Chevron, who agreed to hire him if he passed a physical examination. Because Plaintiff's examination showed liver damage caused by Hepatitis C, Chevron withdrew its employment offer after its doctor said plaintiff's condition would worsen with continued exposure to toxins at the refinery. Chevron also asked the contractor to reassign plaintiff to a job where there was no exposure to harmful chemicals or to remove plaintiff from the refinery altogether. When the contractor laid plaintiff off, plaintiff filed suit alleging that Chevron violated the ADA by refusing to hire him and let him continue to work at the refinery on account of his liver condition.

The District Court granted summary judgment for Chevron based on the EEOC regulation, which was reversed by the 9th Circuit. The United Supreme Court disagreed, reversing the 9th Circuit and finding the EEOC regulation applicable to ADA claims.

Plaintiff Need Not Attempt To Gain Access To Premises To Have Standing Under Americans With Disabilities Act

In Pickern v. Doran, 2002 DJDAR 6829, an architectural barrier ADA case, the Ninth Circuit recently held that, (1) where a disabled person has actual knowledge of illegal barriers, plaintiff need not attempt to gain access to premises if such an attempt would be futile, and (2) so long as plaintiff visits the premises a year before he files suit, his action is timely. Plaintiff, a paraplegic who used a wheelchair, alleged that he could not go shopping at a particular grocery store due to inadequate access to and from the parking lot, the check-stands, restrooms and vending machines. Plaintiff admitted that the first time he was aware of the alleged illegal barriers was prior to 1998 while visiting his grandmother, and that he visited the store only once again in late 1998.

On appeal to the 9th Circuit, the court held that the plain language of the ADA does not require a disabled person ". . . to engage in a futile gesture if such person has actual notice that a person or organization . . . does not intend to comply" with the ADA. Accordingly, under ADA, once a plaintiff is aware of discriminatory conditions at a place of public accommodation and is deterred from visiting the accommodation, plaintiff need not have personally encountered all of the barriers barring access to seek an injunction to remove those barriers. Such a plaintiff has suffered an "actual harm" and, thus, has standing to sue. The 9th Circuit also found that plaintiff is entitled to injunctive relief for any injury occurring within the limitations period, as well as for "threatened future injury". Because plaintiff stated that, at the time he filed his complaint, he was aware of barriers to access that continued to exist at the store and that the barriers currently deter him, his lawsuit was not time-barred.

United States Supreme Court Rules On Availability Of Punitive Damages Under The Americans With Disabilities Act And Rehabilitation Act

In Barnes v. Gorman, 2002 DJDAR 6713, the US Supreme Court held that punitive damages are not available to plaintiffs in ADA suits brought under Section 202 of the ADA (prohibiting discrimination against disabled individuals by public entities) or section 504 of the Rehabilitation Act (prohibiting discrimination against the disabled by recipients of federal funding), noting that these statutes apply only to public entities and programs which are the recipients of federal funding. In this matter from the 8th Circuit, after reviewing these ADA statutes in connection with cases which invoke Congress' power under the Spending Clause of the Constitution, the court found that because Spending Clause legislation is in the nature of a contract, the scope of damages is likewise contractual and punitive damages are not available for breach of contract claims. Thus, no punitive damages are recoverable for violations of these particular statutes.

Here, Plaintiff, a paraplegic confined to a wheelchair, was arrested after fighting with a bouncer at a nightclub. The arresting police removed plaintiff from his wheelchair and used a seatbelt to strap him to a narrow bench in the rear of their van. Fearing that the seatbelt placed excessive pressure on his urine bag, plaintiff released his seatbelt causing him to fall to the floor, injuring his shoulder and back and resulting in his inability to work. Plaintiff sued members of the police commission, the officer who drove the van and the chief of police claiming they had discriminated against him by failing to maintain appropriate policies for the arrest and transport of disabled persons. The jury awarded one million dollars in compensatory damages and 1.2 million in punitive damages, which punitive damages were disallowed by the Supreme Court's ruling.