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Supreme court rules on cruise ship case
ADA Update
SUPREME COURT RULES ON CRUISE SHIP CASE Lewis E. Vierling, MS, NCC, NCCC, CRC, CCM
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his ADA Update discusses the U.S. Supreme Court opinion in Spector v. Norwegian Cruise Line related to whether or not Title III, the public accommodation provision of the Americans with Disabilities Act (ADA), applies to foreign-flagged ships in U.S. ports. Implications for case managers as a result of this decision will be identified. The Court also has accepted a case involving Title II, the public services provision, for review in its 2005-2006 term. The Court will review whether Title II applies to the administration of the prison system. The Court has ruled in four other cases related to suits against local and state governments under the ADA, and a summary of those cases will be provided. Another case will be discussed that provides valuable insight and specific case law of which case managers should be aware. The issue discussed through presentation of a Circuit Court of Appeals decision answers the question of whether an individual’s inability to perform to an employer’s expectation should be a factor in determining whether or not he or she is a “qualified individual” with a disability under the ADA. Specific implications for case managers will be identified from the opinion of the Court in this case. On June 6, 2005, the U.S. Supreme Court ruled that Congress intended the ADA to apply to cruise lines. However, the Court noted that there were some exceptions. In Spector v. Norwegian Cruise Line Limited, a disabled individual who uses a motorized scooter because of a tumor on his spine, which limits the activity of walking, sued Norwegian Cruise Line for not being accessible. Mr. Spector said the ship was ill-equipped to deal with passengers with disabilities. He noted that steps in TCM 24
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front of entrances that were meant to seal water out of the ship’s interiors also made services such as restaurants, swimming pools, and public restrooms inaccessible to individuals with disabilities. He alleged that he was charged extra for an accessible cabin on the ship. Spector and four other plaintiffs filed a class-action suit against Norwegian Cruise Line for violating Title III of the ADA, which bans discrimination against disabled individuals in “any place of public accommodation.” The U.S. District Court for the Southern District of Texas ruled that Title III applies to foreign ships within U.S. territorial waters. However, in January 2004, the Fifth Circuit Court of Appeals unanimously reversed this decision, saying Title III does not apply to foreign ships. The opinion further stated that there is no evidence that Congress intended the law to apply to these ships. In contrast, the Eleventh Circuit Court of Appeals decided a case in 2000 that Title III did apply to foreignflagged cruise ships, stating, “A foreignflagged ship sailing in the United States waters is not extraterritorial”; therefore, domestic law could apply. This is an important case because the Fifth and Eleventh Circuits have arrived at opposite opinions on whether or not Title III covers foreign-flagged ships sailing in U.S. waters. It is especially important for those circuits because more than two thirds of the cruises departing from the United States leave from ports within their jurisdictions. Prior to the decision, it was uncertain if ships departing from Texas ports violated Title III once they enter ports for the Eleventh Circuit territory on the Florida coast. Both parties in this case had requested that the Supreme Court resolve these issues and set a national standard for the application of Title III to foreign ships.
On June 6, 2005, a divided Supreme Court reversed the decision of the Fifth Circuit Court of Appeals and said that Congress intended the ADA to apply to cruise ships. In the opinion, delivered by Justice Kennedy, the Court concluded, “The statute is applicable to foreignflagged cruise ships in U.S. waters.” However, there were some exceptions. Within the decision, it was noted that cruise lines do not have to comply with the ADA if it creates “too much international discord or disruption of internal affairs.” The ADA defines Title III barrier removal as “readily achievable,” further defined as “easily accomplished and able to be carried out without much difficulty or expense.” Title III also directs that this readily achievable determination take into account the impact on facilities’ operation. They also must take into consideration the modifications’ effect on shipboard safety. It is important to note that the nondiscrimination and accommodation requirements of Title III do not apply if individuals with disabilities would pose a “significant risk to the health or the safety of others that cannot be eliminated by the modification of policies, practices, or procedures.” The Court concluded that it was not the intent of Congress to require modifications that may threaten others’ safety because of the accommodation itself. The Court noted that cruise ships that fly foreign flags and that depart from and return to the United States transport over 7 million people annually. This includes a large number of individuals with disabilities. The Court reasoned that to conclude that there is no Title III protection for individuals with disabilities would be “a harsh and unexpected interpretation of a statute designed to provide broad protection for them.” The Court also noted that Title III does not require structural modifications that conflict with international
legal obligations. As noted, the Court declared, “Title III does not require any permanent and significant structural modifications that interfere with cruise ships’ internal affairs.” Despite the decision, it remains ambiguous whether cruise lines will have to make pools, restaurants, and emergency equipment accessible to individuals in wheelchairs. In the 5 to 4 opinion, the decision of the Fifth Circuit was reversed, and the case was remanded for trial. Therefore, the passengers with disabilities who filed the suit will now be able to proceed to trial to prove whether or not they were discriminated against. In a dissenting opinion, Justice Scalia stated that Congress had included an exhaustive list of facilities that were considered “public accommodations,” but it did not include foreign-flagged cruise ships. Therefore, he contends that Congress did not intend to extend the provisions of the ADA to such vessels. Justice Scalia argued that if the ADA was extended to foreignflagged ships, it would “create international discord.” Justice Scalia was joined in his dissenting opinion by Justices Rehnquist, O’Connor, and Thomas. While it appears that this decision in some circumstances may not actually affect foreign-flagged ships, it does apply to domestic cruise lines. However, the majority of cruise lines are almost exclusively foreign flagged. There remains for the courts to decide whether or not barrier removal is readily achievable, whether it poses a direct threat to others, or whether making necessary modifications would be a violation of international law. It will be interesting to follow this case when it is again reviewed by the lower courts in determining whether or not Spector was discriminated against. The Ninth Circuit Court of Appeals had postponed a decision on a case involving
the Crystal Cruise Line until the Supreme Court had decided the Spector case. The defense attorneys noted that it remains unclear as to whether ships need to actually make physical accommodations based on the decision, particularly when these physical accommodations require structural changes. This Ninth Circuit Court of Appeals case is Gaicopin v. Crystal Cruise Line. It will be interesting to note not only how the lower courts review this decision but also how the Ninth Circuit Court of Appeals will respond in this case. This is the 19th ADA case to be reviewed and decided by the Supreme Court. This case will be followed in this column when it is remanded back to the lower courts. Implications for Case Managers The overall goal of the ADA is to extend maximum opportunities for full community integration to persons with disabilities in both public and private sectors of our society. The law was enacted to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities. Knowledge of this case offers new understanding of the far-reaching impact of the ADA. Public accommodation is an important issue for individuals with disabilities. Case managers who may come in contact with individuals who require an accessible environment can provide some insight to them as a result of the outcome of this decision. Title III has directed that barrier removal be “readily achievable.” This concept is now being expanded to include foreign travel. This is, indeed, a far-reaching impact of the ADA. It also provides some insight into the possible future implications for international application of American law. Supreme Court to Review Prison Case The Supreme Court has accepted for review a case involving the ADA and the
administration of the prison system. Actually, the Supreme Court accepted for review two cases on May 16, 2005, but consolidated them into one. The case is U.S. v. Georgia, et al./Goodman, Tony v. Georgia, et al. The question presented and accepted for review is “whether Title II of the Americans with Disabilities Act of 1990, 42 U.S.C. 12131 Two 12165, is a proper exercise of Congress’ power under Section 5 of the Fourteenth Amendment, as applied to the administration of prison systems.” Mr. Goodman was arrested on July 1, 1995, for firing a shot at his girlfriend and then beating her. He was convicted of aggravated assault, possession of a firearm by a convicted felon, and possession of cocaine with intent to distribute. He was sentenced to 30 years in the Georgia prison system. Court records indicate that Goodman was placed in a special management unit because of his “continuous disruptive conduct and the special requirements associated with him being wheelchairbound.” He claimed that he was confined to a cell that measured 12 feet long by 3 feet wide for 23 to 24 hours each day. He also claimed that from April 1998 through May 1999, he lived in substandard conditions and was denied basic rights as a prisoner. One of the claims was that Goodman had to “hurl” his body from the wheelchair onto the toilet. It is claimed that this incident caused an epileptic seizure, a broken right toe, and a crushed knee. Goodman filed an ADA Title II discrimination suit in 1999 against the state of Georgia, the Georgia Department of Corrections, and eight prison officials. He sought declaratory, injunctive, and monetary relief, including $600,000 from each individual defendant. He claimed that prison officials had knowledge of his “precarious and perilous September/October 2005
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placement in the prison cell,” which was in “total disregard of his health, safety, and well-being.” It was determined that the ADA applies to services, programs, and activities of a public entity, which focused specifically on Georgia as the actual defendant in his ADA claim. Therefore, the District Court dismissed Goodman’s claims against prison officials but not against the state and the Department of Corrections. The U.S. Department of Justice intervened on Goodman’s behalf, joined his suit against Georgia, and filed an appeal. This case is interesting because the Supreme Court has ruled in four other cases related to suing local and state governments under the ADA. A summary of the ADA Supreme Court cases involving local and state governments is provided in Table 1. In the Tennessee v. Lane decision, Justice Stevens cited evidence and made references to the institutionalization of mentally retarded individuals, marriage, and voting rights for the disabled. Some observers have speculated that the breadth of this decision and the language of the decision provide advocates for the disabled additional material for a broad range of Title II cases beyond the courthouse accessibility issue. It also was noted that the Eleventh Amendment gives individual states immunity from being sued in federal court. However, this ruling implies that states are not immune when disabled people sue under the ADA, particularly to gain access to courthouses. In the Supreme Court opinion of Board of Trustees v. Garrett, the Court ruled that states are immune from suits for money damages under Title I. Title II clearly has the Supreme Court’s support as a resource for individuals with disabilities that relates to courthouse accessibility and possibly many TCM 26
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other programs and services issues. Title II provides that “no qualified individual with a disability” shall be subject to discrimination by public agencies offering services or programs. The acting solicitor general, Paul Clement, stated in his petition for review to the Supreme Court regarding the Goodman case that this needs to be resolved urgently because “delay is particularly inappropriate in the context of prison administration because, as this case illustrates, Title II’s operation in that setting not infrequently redresses the inhumane, degrading, and health-endangering conditions of daily life for inmates.” This is the 20th ADA case to be heard by the Supreme Court since the bill was signed into law in July 1990. When the decision is released by the Court, it will be discussed in this column. Employer Expectation and Qualified Individuals Should an individual’s ability to perform up to an employer’s expectation be a factor in determining whether or not he or she is “a qualified individual with a disability” under the ADA? This question was central to a recently decided case, Hammel v. Eau Galle Cheese Factory (ECF) by the Seventh Circuit Court of Appeals. This case is instructive, because it provides the case manager working with an employer some insight into circumstances that may involve terminating an employee with a disability who may not be meeting the employer’s expectation for job performance. Paul Hammel began his employment as a general laborer at ECF in Durand, Wisconsin. He has congenital glaucoma in both eyes, resulting in total loss of sight in the right eye and narrow “gun-barrel vision” in his left eye. Because of his visual deficits, he is considered legally blind.
On January 8, 2000, Hammel was hired after assuring the employer that he would be able to perform the necessary tasks of a general laborer without any special accommodation. He was hired on a trial basis and was informed that his employment would be conditional and subject to a probationary period of 90 days. It became evident during the first few days of his employment that he lacked the general aptitude and/or ability to perform the specific tasks of his job. It also became apparent that he exhibited a poor attitude and performed many of his tasks carelessly and without regard for his safety or for that of his coworkers. He demonstrated arrogance and insubordination toward his supervisor. Besides warning Hammel about his carelessness, the company attempted an accommodation to try to improve his efficiency. However, even with this accommodation, his work performance failed to improve. ECF’s business manager, Ron Hemmy, met with Hammel and informed him that he was being discharged due to his limited vision and the fact that it “interfered to some extent with his work and caused management concern for his safety and the safety of his coworkers.” In July 2002, Hammel filed suit against ECF under the ADA, alleging the company intentionally discriminated against him by terminating his employment on the basis of a disability and failing to afford him reasonable accommodations. ECF responded by saying that he was terminated because of his insubordination, consistent carelessness, poor work attitude/ethic, and concerns for his safety and the safety of other employees. The company also stated that they had been unable to work out any reasonable accommodation for Hammel but did not challenge his allegation that he is disabled within the meaning of the ADA.
To prove discrimination in a Title I employment discrimination case, the plaintiff has the burden to prove the following: 1. Plaintiff must demonstrate that he has a disability within the meaning of the ADA. 2. Plaintiff must demonstrate that he is a qualified individual to engage in the disputed activity (the job). 3. Plaintiff must demonstrate that an adverse employment action occurred as a result of his disability. In this case, there was no dispute regarding whether or not Hammel had a disability within the meaning of the ADA. However, to prove the next step—that he is a qualified individual to engage in the disputed activity—the plaintiff must establish that he possessed the skills, the education, the experience, and the training for the position; is able to perform the essential functions, with or without reasonable accommodation; and is not a threat to the safety and the well-being of himself or others.
TABLE 1. ADA CASES INVOLVING GOVERNMENTS Title I - Board of Trustees v. Garrett Question presented to the Court: Does the Eleventh Amendment bar federal suits by state employees against nonconsenting states under certain federal laws, specifically the ADA, the Rehabilitation Act, and the Family Medical Leave Act? Opinion of the Court: The Court held that Congress did not have the authority to overcome the states’ Eleventh Amendment immunity. Therefore, individuals cannot sue a state for money damages under Title I. Title II - Pennsylvania Department of Corrections v. Yeskey Question presented to the Court: Does Title II of the ADA cover state prisons and prisoners? Opinion of the Court: The Supreme Court held that ADA Title II does cover prisons and prisoners. Barns v. Gorman Question presented to the Court: Do cities have constitutional immunity against being sued for damages in federal courts under the ADA? Opinion of the Court: Cities, boards, and agencies that accept federal money are not liable for punitive damages for accommodations violations under the ADA or the Rehabilitation Act. Punitive damages are allowed under other sections of the ADA relating to private employers. Title III - Tennessee v. Lane Question presented to the Court: Did Congress have the constitutional authority to require states to pay money damages for violations of Title II of the ADA? Opinion of the Court: Title II, as it applies to the class of cases implicating the fundamental rights of access to the courts, constitutes a valid exercise of Congress’ section 5 authority to enforce the guarantees of the Fourteenth Amendment.
The trial judge determined that Hammel was discharged because of his disability; however, he found that there was a genuine factual dispute as to whether Hammel was a qualified individual under the ADA. The judge reserved this issue for trial, along with the question of whether ECF’s termination violated the ADA.
a vocational school prior to his employment with ECF.
Vocational Expert Testimony Hammel claimed that he had not been provided with reasonable accommodations and offered the testimony of a vocational expert as a witness who proposed various accommodations. The expert witness believed that ECF could have implemented the accommodations that would allow Hammel to perform the essential functions of his job. Specifically, four accommodations were offered that involved Hammel’s use of “adaptive techniques” that he had learned to use at
The judge noted that reasonable accommodations under the ADA are defined, in part, as “modifications or adjustments to the work environment by the employer that enable an individual with a disability to perform the essential functions of a position.” The court decided that these accommodations were not modifications or adjustments to the work environment by the employer that would enable him to perform the essential job functions. The court ruled that the adaptive techniques were modifications or adjustments
in Hammel’s own work performance that he was expected to use without any accommodations from his employer. The vocational expert also proposed that a coworker check on Hammel’s performance and teach him how to do a specific job task. However, the court determined that employers are not required to provide accommodations that necessitate the involvement of another person to assist an ADA claimant in performing essential functions of the job. The court noted that the ADA does not require an employer to accommodate by making special, individualized training or superSeptember/October 2005
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vision available to be able to “shepherd that employee through what is an essential and legitimate requirement of the job.” The court also noted that accommodations that require “special preferential treatment” are not reasonable under the ADA. Therefore, the vocational expert’s recommendations are not considered reasonable accommodations. Hammel also argued that the consideration of nondisability-related evidence, such as poor attitude, careless behavior, and deficient work performance, was not a valid way to determine if he was a qualified individual capable of performing the essential job functions. The court did not agree with this contention and stated that the ADA does not protect individuals with disabilities from adverse employment actions if the individual, for reasons unrelated to the disability, such as poor work ethic, carelessness, bad attitude, is not qualified for the job and is unable to perform the essential functions or “fails to meet his employer’s expectations.” Implications for Case Managers This case is instructive for case managers who deal with the issue of employer expectations of job performance and whether or not the individual is considered as qualified with a disability under the ADA. The following is a list of implications that relate to employer expectations and reasonable accommodations: 1. The courts have said that an employer is entitled to expect workers, disabled or otherwise, to use care and caution in the workplace and to adhere to safety policies and requirements, as well as directives. 2. The ADA does not require any employer to condone or to accept irresponsible behavior from an employee, nor does it protect an employee who is insubordinate and refuses to obey and accept direct orders from their supervisors. TCM 28
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TRANSPORTATION REPORT RELEASED The National Council on Disability (NCD) released the report “The Current State of Transportation for People with Disabilities in the United States.” The report was developed with input from individuals with disabilities and transportation professionals from around the country. According to the NCD chairperson, Lex Friden, “There have been many advances in America’s transportation systems and services for citizens with disabilities, particularly since the passage of the Americans with Disabilities Act. However, research reveals that many barriers to transportation continue to exist that prevent the full inclusion and full participation of people with disabilities in society.” The report identifies a variety of recommendations for service improvement and additional research that will, hopefully, lead to increased options for the 6 million Americans with disabilities who experience problems obtaining the transportation they need to live independently. The report can be found at the NCD’s Website, www.ncd.gov/newsroom/publications/2005/publications.htm
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The appeals court determined that the district court judge did not commit an error when it considered nondisability-related evidence, such as careless behavior, poor attitude, insubordination, and deficient work performance when considering whether this individual is qualified within the meaning of the ADA. The provisions of the ADA that relate to employment protect only a qualified individual, one who can perform the essential functions of the job with or without reasonable accommodation by the employer. It is the employee’s burden to demonstrate reasonable accommodations that could or should have been put in place by the employer that would allow that individual to perform the job in question. No employer should be required to accept serious employment infractions from an employee who also has a disability within the meaning of the ADA. Employers are justified in discharging an employee based upon behavior, attitude, and carelessness, without regard to his disability. Generally speaking, an employer is in violation of the ADA if a terminated employee can demonstrate that reasonable accommodations exist
that would have enabled that person to perform the essential functions of the job. 9. Reasonable accommodations are defined as modifications or adjustments to the work environment by the employer that enables an individual with a disability to perform the essential functions of the job. 10. The ADA does not require an employer to accommodate a disabled employee by making special, individualized training or supervision available to fulfill the essential job functions.
Conclusions In their decision, the Seventh Circuit Court of Appeals stated that Hammel is not a qualified individual with a disability under the ADA and is not entitled to its protections. They also agreed with the trial judge’s conclusion that Hammel was insubordinate, reckless, and an undesirable employee; therefore, no accommodation would make a difference in this situation. The district judge stated in his decision that “perhaps [ECF’s] business manager should have told [Hammel] exactly why he was being fired rather than try to sugarcoat the news.” But despite this, ECF was not liable to Hammel under the ADA.
Judge Upholds DuPont Verdict It was reported in the January/February 2005 issue of The Case Manager that a jury in U.S. District Court for the Eastern District of Louisiana had awarded a former DuPont employee $1.29 million in an employment discrimination case. The case was filed by the U.S. Equal Opportunity Commission (EEOC) under the ADA. In October 2004, the jury awarded plaintiff Laura Barrios $1 million in punitive damages, $200,000 in front pay, and $91,000 in back pay. The lawsuit asserted that DuPont violated the ADA when it illegally required Barrios, who has a severe physical impairment, to take a functional capacity evaluation (FCE) that was neither job related nor consistent with business necessities, a requirement under the ADA. Barrios had successfully worked for DuPont from 1981 to 1999, despite an impairment that severely limited a number of major life activities. In 1996, a DuPont physician placed her on extensive work restrictions, even though no medical evidence supported them. In 1997, DuPont changed Barrios’ job position, presumably attempting to accommodate her impairments. Then in 1999, she was required to take the FCE, which was not related to her job functions. Results from the examinations rated her capacity of lift-
ing in the “light” category—more demanding than the category of her sedentary secretarial work. The FCE, however, indicated “significant instability” while walking and carrying weight. DuPont then decided she could not safely move about the premises of the worksite. Barrios’ employment was terminated based on the knowledge that she was restricted from walking anywhere on site, and DuPont asserted that she was a direct threat because of her inability to safely evacuate the worksite. But it was determined at the trial that she was not a direct threat and, in fact, was capable of safely evacuating. The EEOC noted that evidence presented to the jury showed that Barrios was qualified, ready, willing, and able to perform her job, even though she had substantial physical impairments. The judge upheld the verdict, but the judgment was reduced and DuPont was ordered to pay $591,000, including $300,000 in punitive damages, the maximum allowed under the law. EEOC Senior Trial Attorney Gregory T. Juge, said, “The message to employers is simple: disability does not mean inability. Employment decisions must be based on one’s ability to do the job, not on disability-based myths, fears, or stereotypes.” ❏
DEPARTMENT OF JUSTICE SETTLES LAWSUIT WITH MOVIE THEATER CHAIN The Department of Justice recently announced that it has settled a federal lawsuit with Regal Entertainment Group, the country’s largest movie theater chain, to improve lines of sight for wheelchair users. Regal has agreed to place the wheelchair-accessible areas as close to the middle of their auditoriums as possible. This includes Regal’s current and future stadium-styled cinemas. Regal estimates that they will spend $15 million in these modifications. The changes will be made within a 5-year period. Regal Entertainment Group operates in 40 states.
Lewis E. Vierling, MS, NCC, NCCC, CRC, CCM, is the vice president and rehabilitation consultant for MC/RS in Ankeny, Iowa. He wrote Court Decision Involving the Americans with Disabilities Act: A Resource Guide for Rehabilitation Professionals. He can be reached at [email protected]. Reprint orders: E-mail authorsupport@ elsevier.com or phone (toll-free) 1-888-8347287; reprint no. YMCM 309 doi:10.1016/j.casemgr.2005.07.001
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SUPREME COURT RULES ON CRUISE SHIP CASE Lewis E. Vierling, MS, NCC, NCCC, CRC, CCM
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his ADA Update discusses the U.S. Supreme Court opinion in Spector v. Norwegian Cruise Line related to whether or not Title III, the public accommodation provision of the Americans with Disabilities Act (ADA), applies to foreign-flagged ships in U.S. ports. Implications for case managers as a result of this decision will be identified. The Court also has accepted a case involving Title II, the public services provision, for review in its 2005-2006 term. The Court will review whether Title II applies to the administration of the prison system. The Court has ruled in four other cases related to suits against local and state governments under the ADA, and a summary of those cases will be provided. Another case will be discussed that provides valuable insight and specific case law of which case managers should be aware. The issue discussed through presentation of a Circuit Court of Appeals decision answers the question of whether an individual’s inability to perform to an employer’s expectation should be a factor in determining whether or not he or she is a “qualified individual” with a disability under the ADA. Specific implications for case managers will be identified from the opinion of the Court in this case. On June 6, 2005, the U.S. Supreme Court ruled that Congress intended the ADA to apply to cruise lines. However, the Court noted that there were some exceptions. In Spector v. Norwegian Cruise Line Limited, a disabled individual who uses a motorized scooter because of a tumor on his spine, which limits the activity of walking, sued Norwegian Cruise Line for not being accessible. Mr. Spector said the ship was ill-equipped to deal with passengers with disabilities. He noted that steps in TCM 24
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front of entrances that were meant to seal water out of the ship’s interiors also made services such as restaurants, swimming pools, and public restrooms inaccessible to individuals with disabilities. He alleged that he was charged extra for an accessible cabin on the ship. Spector and four other plaintiffs filed a class-action suit against Norwegian Cruise Line for violating Title III of the ADA, which bans discrimination against disabled individuals in “any place of public accommodation.” The U.S. District Court for the Southern District of Texas ruled that Title III applies to foreign ships within U.S. territorial waters. However, in January 2004, the Fifth Circuit Court of Appeals unanimously reversed this decision, saying Title III does not apply to foreign ships. The opinion further stated that there is no evidence that Congress intended the law to apply to these ships. In contrast, the Eleventh Circuit Court of Appeals decided a case in 2000 that Title III did apply to foreignflagged cruise ships, stating, “A foreignflagged ship sailing in the United States waters is not extraterritorial”; therefore, domestic law could apply. This is an important case because the Fifth and Eleventh Circuits have arrived at opposite opinions on whether or not Title III covers foreign-flagged ships sailing in U.S. waters. It is especially important for those circuits because more than two thirds of the cruises departing from the United States leave from ports within their jurisdictions. Prior to the decision, it was uncertain if ships departing from Texas ports violated Title III once they enter ports for the Eleventh Circuit territory on the Florida coast. Both parties in this case had requested that the Supreme Court resolve these issues and set a national standard for the application of Title III to foreign ships.
On June 6, 2005, a divided Supreme Court reversed the decision of the Fifth Circuit Court of Appeals and said that Congress intended the ADA to apply to cruise ships. In the opinion, delivered by Justice Kennedy, the Court concluded, “The statute is applicable to foreignflagged cruise ships in U.S. waters.” However, there were some exceptions. Within the decision, it was noted that cruise lines do not have to comply with the ADA if it creates “too much international discord or disruption of internal affairs.” The ADA defines Title III barrier removal as “readily achievable,” further defined as “easily accomplished and able to be carried out without much difficulty or expense.” Title III also directs that this readily achievable determination take into account the impact on facilities’ operation. They also must take into consideration the modifications’ effect on shipboard safety. It is important to note that the nondiscrimination and accommodation requirements of Title III do not apply if individuals with disabilities would pose a “significant risk to the health or the safety of others that cannot be eliminated by the modification of policies, practices, or procedures.” The Court concluded that it was not the intent of Congress to require modifications that may threaten others’ safety because of the accommodation itself. The Court noted that cruise ships that fly foreign flags and that depart from and return to the United States transport over 7 million people annually. This includes a large number of individuals with disabilities. The Court reasoned that to conclude that there is no Title III protection for individuals with disabilities would be “a harsh and unexpected interpretation of a statute designed to provide broad protection for them.” The Court also noted that Title III does not require structural modifications that conflict with international
legal obligations. As noted, the Court declared, “Title III does not require any permanent and significant structural modifications that interfere with cruise ships’ internal affairs.” Despite the decision, it remains ambiguous whether cruise lines will have to make pools, restaurants, and emergency equipment accessible to individuals in wheelchairs. In the 5 to 4 opinion, the decision of the Fifth Circuit was reversed, and the case was remanded for trial. Therefore, the passengers with disabilities who filed the suit will now be able to proceed to trial to prove whether or not they were discriminated against. In a dissenting opinion, Justice Scalia stated that Congress had included an exhaustive list of facilities that were considered “public accommodations,” but it did not include foreign-flagged cruise ships. Therefore, he contends that Congress did not intend to extend the provisions of the ADA to such vessels. Justice Scalia argued that if the ADA was extended to foreignflagged ships, it would “create international discord.” Justice Scalia was joined in his dissenting opinion by Justices Rehnquist, O’Connor, and Thomas. While it appears that this decision in some circumstances may not actually affect foreign-flagged ships, it does apply to domestic cruise lines. However, the majority of cruise lines are almost exclusively foreign flagged. There remains for the courts to decide whether or not barrier removal is readily achievable, whether it poses a direct threat to others, or whether making necessary modifications would be a violation of international law. It will be interesting to follow this case when it is again reviewed by the lower courts in determining whether or not Spector was discriminated against. The Ninth Circuit Court of Appeals had postponed a decision on a case involving
the Crystal Cruise Line until the Supreme Court had decided the Spector case. The defense attorneys noted that it remains unclear as to whether ships need to actually make physical accommodations based on the decision, particularly when these physical accommodations require structural changes. This Ninth Circuit Court of Appeals case is Gaicopin v. Crystal Cruise Line. It will be interesting to note not only how the lower courts review this decision but also how the Ninth Circuit Court of Appeals will respond in this case. This is the 19th ADA case to be reviewed and decided by the Supreme Court. This case will be followed in this column when it is remanded back to the lower courts. Implications for Case Managers The overall goal of the ADA is to extend maximum opportunities for full community integration to persons with disabilities in both public and private sectors of our society. The law was enacted to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities. Knowledge of this case offers new understanding of the far-reaching impact of the ADA. Public accommodation is an important issue for individuals with disabilities. Case managers who may come in contact with individuals who require an accessible environment can provide some insight to them as a result of the outcome of this decision. Title III has directed that barrier removal be “readily achievable.” This concept is now being expanded to include foreign travel. This is, indeed, a far-reaching impact of the ADA. It also provides some insight into the possible future implications for international application of American law. Supreme Court to Review Prison Case The Supreme Court has accepted for review a case involving the ADA and the
administration of the prison system. Actually, the Supreme Court accepted for review two cases on May 16, 2005, but consolidated them into one. The case is U.S. v. Georgia, et al./Goodman, Tony v. Georgia, et al. The question presented and accepted for review is “whether Title II of the Americans with Disabilities Act of 1990, 42 U.S.C. 12131 Two 12165, is a proper exercise of Congress’ power under Section 5 of the Fourteenth Amendment, as applied to the administration of prison systems.” Mr. Goodman was arrested on July 1, 1995, for firing a shot at his girlfriend and then beating her. He was convicted of aggravated assault, possession of a firearm by a convicted felon, and possession of cocaine with intent to distribute. He was sentenced to 30 years in the Georgia prison system. Court records indicate that Goodman was placed in a special management unit because of his “continuous disruptive conduct and the special requirements associated with him being wheelchairbound.” He claimed that he was confined to a cell that measured 12 feet long by 3 feet wide for 23 to 24 hours each day. He also claimed that from April 1998 through May 1999, he lived in substandard conditions and was denied basic rights as a prisoner. One of the claims was that Goodman had to “hurl” his body from the wheelchair onto the toilet. It is claimed that this incident caused an epileptic seizure, a broken right toe, and a crushed knee. Goodman filed an ADA Title II discrimination suit in 1999 against the state of Georgia, the Georgia Department of Corrections, and eight prison officials. He sought declaratory, injunctive, and monetary relief, including $600,000 from each individual defendant. He claimed that prison officials had knowledge of his “precarious and perilous September/October 2005
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placement in the prison cell,” which was in “total disregard of his health, safety, and well-being.” It was determined that the ADA applies to services, programs, and activities of a public entity, which focused specifically on Georgia as the actual defendant in his ADA claim. Therefore, the District Court dismissed Goodman’s claims against prison officials but not against the state and the Department of Corrections. The U.S. Department of Justice intervened on Goodman’s behalf, joined his suit against Georgia, and filed an appeal. This case is interesting because the Supreme Court has ruled in four other cases related to suing local and state governments under the ADA. A summary of the ADA Supreme Court cases involving local and state governments is provided in Table 1. In the Tennessee v. Lane decision, Justice Stevens cited evidence and made references to the institutionalization of mentally retarded individuals, marriage, and voting rights for the disabled. Some observers have speculated that the breadth of this decision and the language of the decision provide advocates for the disabled additional material for a broad range of Title II cases beyond the courthouse accessibility issue. It also was noted that the Eleventh Amendment gives individual states immunity from being sued in federal court. However, this ruling implies that states are not immune when disabled people sue under the ADA, particularly to gain access to courthouses. In the Supreme Court opinion of Board of Trustees v. Garrett, the Court ruled that states are immune from suits for money damages under Title I. Title II clearly has the Supreme Court’s support as a resource for individuals with disabilities that relates to courthouse accessibility and possibly many TCM 26
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other programs and services issues. Title II provides that “no qualified individual with a disability” shall be subject to discrimination by public agencies offering services or programs. The acting solicitor general, Paul Clement, stated in his petition for review to the Supreme Court regarding the Goodman case that this needs to be resolved urgently because “delay is particularly inappropriate in the context of prison administration because, as this case illustrates, Title II’s operation in that setting not infrequently redresses the inhumane, degrading, and health-endangering conditions of daily life for inmates.” This is the 20th ADA case to be heard by the Supreme Court since the bill was signed into law in July 1990. When the decision is released by the Court, it will be discussed in this column. Employer Expectation and Qualified Individuals Should an individual’s ability to perform up to an employer’s expectation be a factor in determining whether or not he or she is “a qualified individual with a disability” under the ADA? This question was central to a recently decided case, Hammel v. Eau Galle Cheese Factory (ECF) by the Seventh Circuit Court of Appeals. This case is instructive, because it provides the case manager working with an employer some insight into circumstances that may involve terminating an employee with a disability who may not be meeting the employer’s expectation for job performance. Paul Hammel began his employment as a general laborer at ECF in Durand, Wisconsin. He has congenital glaucoma in both eyes, resulting in total loss of sight in the right eye and narrow “gun-barrel vision” in his left eye. Because of his visual deficits, he is considered legally blind.
On January 8, 2000, Hammel was hired after assuring the employer that he would be able to perform the necessary tasks of a general laborer without any special accommodation. He was hired on a trial basis and was informed that his employment would be conditional and subject to a probationary period of 90 days. It became evident during the first few days of his employment that he lacked the general aptitude and/or ability to perform the specific tasks of his job. It also became apparent that he exhibited a poor attitude and performed many of his tasks carelessly and without regard for his safety or for that of his coworkers. He demonstrated arrogance and insubordination toward his supervisor. Besides warning Hammel about his carelessness, the company attempted an accommodation to try to improve his efficiency. However, even with this accommodation, his work performance failed to improve. ECF’s business manager, Ron Hemmy, met with Hammel and informed him that he was being discharged due to his limited vision and the fact that it “interfered to some extent with his work and caused management concern for his safety and the safety of his coworkers.” In July 2002, Hammel filed suit against ECF under the ADA, alleging the company intentionally discriminated against him by terminating his employment on the basis of a disability and failing to afford him reasonable accommodations. ECF responded by saying that he was terminated because of his insubordination, consistent carelessness, poor work attitude/ethic, and concerns for his safety and the safety of other employees. The company also stated that they had been unable to work out any reasonable accommodation for Hammel but did not challenge his allegation that he is disabled within the meaning of the ADA.
To prove discrimination in a Title I employment discrimination case, the plaintiff has the burden to prove the following: 1. Plaintiff must demonstrate that he has a disability within the meaning of the ADA. 2. Plaintiff must demonstrate that he is a qualified individual to engage in the disputed activity (the job). 3. Plaintiff must demonstrate that an adverse employment action occurred as a result of his disability. In this case, there was no dispute regarding whether or not Hammel had a disability within the meaning of the ADA. However, to prove the next step—that he is a qualified individual to engage in the disputed activity—the plaintiff must establish that he possessed the skills, the education, the experience, and the training for the position; is able to perform the essential functions, with or without reasonable accommodation; and is not a threat to the safety and the well-being of himself or others.
TABLE 1. ADA CASES INVOLVING GOVERNMENTS Title I - Board of Trustees v. Garrett Question presented to the Court: Does the Eleventh Amendment bar federal suits by state employees against nonconsenting states under certain federal laws, specifically the ADA, the Rehabilitation Act, and the Family Medical Leave Act? Opinion of the Court: The Court held that Congress did not have the authority to overcome the states’ Eleventh Amendment immunity. Therefore, individuals cannot sue a state for money damages under Title I. Title II - Pennsylvania Department of Corrections v. Yeskey Question presented to the Court: Does Title II of the ADA cover state prisons and prisoners? Opinion of the Court: The Supreme Court held that ADA Title II does cover prisons and prisoners. Barns v. Gorman Question presented to the Court: Do cities have constitutional immunity against being sued for damages in federal courts under the ADA? Opinion of the Court: Cities, boards, and agencies that accept federal money are not liable for punitive damages for accommodations violations under the ADA or the Rehabilitation Act. Punitive damages are allowed under other sections of the ADA relating to private employers. Title III - Tennessee v. Lane Question presented to the Court: Did Congress have the constitutional authority to require states to pay money damages for violations of Title II of the ADA? Opinion of the Court: Title II, as it applies to the class of cases implicating the fundamental rights of access to the courts, constitutes a valid exercise of Congress’ section 5 authority to enforce the guarantees of the Fourteenth Amendment.
The trial judge determined that Hammel was discharged because of his disability; however, he found that there was a genuine factual dispute as to whether Hammel was a qualified individual under the ADA. The judge reserved this issue for trial, along with the question of whether ECF’s termination violated the ADA.
a vocational school prior to his employment with ECF.
Vocational Expert Testimony Hammel claimed that he had not been provided with reasonable accommodations and offered the testimony of a vocational expert as a witness who proposed various accommodations. The expert witness believed that ECF could have implemented the accommodations that would allow Hammel to perform the essential functions of his job. Specifically, four accommodations were offered that involved Hammel’s use of “adaptive techniques” that he had learned to use at
The judge noted that reasonable accommodations under the ADA are defined, in part, as “modifications or adjustments to the work environment by the employer that enable an individual with a disability to perform the essential functions of a position.” The court decided that these accommodations were not modifications or adjustments to the work environment by the employer that would enable him to perform the essential job functions. The court ruled that the adaptive techniques were modifications or adjustments
in Hammel’s own work performance that he was expected to use without any accommodations from his employer. The vocational expert also proposed that a coworker check on Hammel’s performance and teach him how to do a specific job task. However, the court determined that employers are not required to provide accommodations that necessitate the involvement of another person to assist an ADA claimant in performing essential functions of the job. The court noted that the ADA does not require an employer to accommodate by making special, individualized training or superSeptember/October 2005
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vision available to be able to “shepherd that employee through what is an essential and legitimate requirement of the job.” The court also noted that accommodations that require “special preferential treatment” are not reasonable under the ADA. Therefore, the vocational expert’s recommendations are not considered reasonable accommodations. Hammel also argued that the consideration of nondisability-related evidence, such as poor attitude, careless behavior, and deficient work performance, was not a valid way to determine if he was a qualified individual capable of performing the essential job functions. The court did not agree with this contention and stated that the ADA does not protect individuals with disabilities from adverse employment actions if the individual, for reasons unrelated to the disability, such as poor work ethic, carelessness, bad attitude, is not qualified for the job and is unable to perform the essential functions or “fails to meet his employer’s expectations.” Implications for Case Managers This case is instructive for case managers who deal with the issue of employer expectations of job performance and whether or not the individual is considered as qualified with a disability under the ADA. The following is a list of implications that relate to employer expectations and reasonable accommodations: 1. The courts have said that an employer is entitled to expect workers, disabled or otherwise, to use care and caution in the workplace and to adhere to safety policies and requirements, as well as directives. 2. The ADA does not require any employer to condone or to accept irresponsible behavior from an employee, nor does it protect an employee who is insubordinate and refuses to obey and accept direct orders from their supervisors. TCM 28
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TRANSPORTATION REPORT RELEASED The National Council on Disability (NCD) released the report “The Current State of Transportation for People with Disabilities in the United States.” The report was developed with input from individuals with disabilities and transportation professionals from around the country. According to the NCD chairperson, Lex Friden, “There have been many advances in America’s transportation systems and services for citizens with disabilities, particularly since the passage of the Americans with Disabilities Act. However, research reveals that many barriers to transportation continue to exist that prevent the full inclusion and full participation of people with disabilities in society.” The report identifies a variety of recommendations for service improvement and additional research that will, hopefully, lead to increased options for the 6 million Americans with disabilities who experience problems obtaining the transportation they need to live independently. The report can be found at the NCD’s Website, www.ncd.gov/newsroom/publications/2005/publications.htm
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The appeals court determined that the district court judge did not commit an error when it considered nondisability-related evidence, such as careless behavior, poor attitude, insubordination, and deficient work performance when considering whether this individual is qualified within the meaning of the ADA. The provisions of the ADA that relate to employment protect only a qualified individual, one who can perform the essential functions of the job with or without reasonable accommodation by the employer. It is the employee’s burden to demonstrate reasonable accommodations that could or should have been put in place by the employer that would allow that individual to perform the job in question. No employer should be required to accept serious employment infractions from an employee who also has a disability within the meaning of the ADA. Employers are justified in discharging an employee based upon behavior, attitude, and carelessness, without regard to his disability. Generally speaking, an employer is in violation of the ADA if a terminated employee can demonstrate that reasonable accommodations exist
that would have enabled that person to perform the essential functions of the job. 9. Reasonable accommodations are defined as modifications or adjustments to the work environment by the employer that enables an individual with a disability to perform the essential functions of the job. 10. The ADA does not require an employer to accommodate a disabled employee by making special, individualized training or supervision available to fulfill the essential job functions.
Conclusions In their decision, the Seventh Circuit Court of Appeals stated that Hammel is not a qualified individual with a disability under the ADA and is not entitled to its protections. They also agreed with the trial judge’s conclusion that Hammel was insubordinate, reckless, and an undesirable employee; therefore, no accommodation would make a difference in this situation. The district judge stated in his decision that “perhaps [ECF’s] business manager should have told [Hammel] exactly why he was being fired rather than try to sugarcoat the news.” But despite this, ECF was not liable to Hammel under the ADA.
Judge Upholds DuPont Verdict It was reported in the January/February 2005 issue of The Case Manager that a jury in U.S. District Court for the Eastern District of Louisiana had awarded a former DuPont employee $1.29 million in an employment discrimination case. The case was filed by the U.S. Equal Opportunity Commission (EEOC) under the ADA. In October 2004, the jury awarded plaintiff Laura Barrios $1 million in punitive damages, $200,000 in front pay, and $91,000 in back pay. The lawsuit asserted that DuPont violated the ADA when it illegally required Barrios, who has a severe physical impairment, to take a functional capacity evaluation (FCE) that was neither job related nor consistent with business necessities, a requirement under the ADA. Barrios had successfully worked for DuPont from 1981 to 1999, despite an impairment that severely limited a number of major life activities. In 1996, a DuPont physician placed her on extensive work restrictions, even though no medical evidence supported them. In 1997, DuPont changed Barrios’ job position, presumably attempting to accommodate her impairments. Then in 1999, she was required to take the FCE, which was not related to her job functions. Results from the examinations rated her capacity of lift-
ing in the “light” category—more demanding than the category of her sedentary secretarial work. The FCE, however, indicated “significant instability” while walking and carrying weight. DuPont then decided she could not safely move about the premises of the worksite. Barrios’ employment was terminated based on the knowledge that she was restricted from walking anywhere on site, and DuPont asserted that she was a direct threat because of her inability to safely evacuate the worksite. But it was determined at the trial that she was not a direct threat and, in fact, was capable of safely evacuating. The EEOC noted that evidence presented to the jury showed that Barrios was qualified, ready, willing, and able to perform her job, even though she had substantial physical impairments. The judge upheld the verdict, but the judgment was reduced and DuPont was ordered to pay $591,000, including $300,000 in punitive damages, the maximum allowed under the law. EEOC Senior Trial Attorney Gregory T. Juge, said, “The message to employers is simple: disability does not mean inability. Employment decisions must be based on one’s ability to do the job, not on disability-based myths, fears, or stereotypes.” ❏
DEPARTMENT OF JUSTICE SETTLES LAWSUIT WITH MOVIE THEATER CHAIN The Department of Justice recently announced that it has settled a federal lawsuit with Regal Entertainment Group, the country’s largest movie theater chain, to improve lines of sight for wheelchair users. Regal has agreed to place the wheelchair-accessible areas as close to the middle of their auditoriums as possible. This includes Regal’s current and future stadium-styled cinemas. Regal estimates that they will spend $15 million in these modifications. The changes will be made within a 5-year period. Regal Entertainment Group operates in 40 states.
Lewis E. Vierling, MS, NCC, NCCC, CRC, CCM, is the vice president and rehabilitation consultant for MC/RS in Ankeny, Iowa. He wrote Court Decision Involving the Americans with Disabilities Act: A Resource Guide for Rehabilitation Professionals. He can be reached at [email protected]. Reprint orders: E-mail authorsupport@ elsevier.com or phone (toll-free) 1-888-8347287; reprint no. YMCM 309 doi:10.1016/j.casemgr.2005.07.001
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