In a recent case in New York, a pro se parent (“Parent”) argued that her child’s school district is legally obligated to reheat her diabetic child’s homemade lunch meal. Parent sued under 504, the Americans with Disabilities Act (“ADA”), the Individuals with Disabilities in Education Act (“IDEA”), and other “statutes” and “regulations” that purportedly form a basis upon which to seek relief (see p. 2 and footnote 1, 2). Parent seemed to try to test the limits of a school district’s obligations under 504 and ADA. Ultimately, the court determined that the school district’s refusal to reheat homemade lunches did not violate 504 or the ADA.

The facts of the case are somewhat confusing. For reasons of brevity, let’s review the pertinent,
undisputed facts of the case and focus on why the court held that the school’s failure to reheat J.M.’s homemade lunches did not violate 504 or ADA.

In 2007, J.M. was diagnosed with Type 1 Diabetes Mellitus when he was 11 years old. On the advice of J.M.’s nutritionist, Parent made homemade lunches for J.M. to take to school. “This was to enable the parent and J.M.’s doctors to monitor his diet–specifically his caloric/carbohydrate intake–at least until J.M. became more accustomed to his ‘new situation.’” (see p. 6). Apparently, there were menu choices available to students with diabetes (see p. 6-7), but J.M. did not like the lunches provided at the school (see p. 31).

When Parent asked whether J.M. could heat his homemade lunch in a microwave, a school staff member agreed to warm up J.M.’s food using the microwave in the teacher’s lounge (see p. 7). For reasons that aren’t clear, however, J.M.’s food was not microwaved on a regular basis; as a result, J.M. did not always eat his lunches. It is not clear whether J.M. was afraid or too self-conscious to ask a staff member to microwave his lunches. It is not even clear if J.M. did not always eat his lunches solely because it was not heated up.

In any event, Parent became concerned about J.M.’s health and access to a microwave. Parent expressed concerns to a number of people, including school personnel and J.M.’s pediatrician, regarding J.M.’s glucose levels and not eating his lunches.

J.M.’s pediatrician signed a Glucose form and a request for a 504 accommodation, which contained very general statements and the importance that staff supervise J.M. to ensure that he “ingests adequate amount[s] of food to prevent hypoglycemia.” Significantly, when J.M.’s pediatrician signed a request form for 504 accommodations, it did not contain an “order or [a] request to heat J.M.’s lunch” (see p.9).

The school superintendent was concerned about “potential liability” associated with microwaving
the lunch meals (see p.10). The superintendent discussed alternative options with the parent, such as “training [the] student to make appropriate menu choices” (see p. 10). When Parent insisted that the school reheat J.M.’s homemade lunches, school personnel repeatedly denied the request (see p. 10).

Parent subsequently filed a petition for a due process hearing, ultimately seeking that the school provide J.M. a microwave so that he can heat up his homemade lunches (see p. 12). The hearing officer appeared sympathetic to the parent, but found against the parent (see p.13). Parent appealed to the State Review Officer and the matter was dismissed for lack of Subject Matter Jurisdiction to review Section 504 claims (see p. 14). Parent then filed a complaint in federal court seeking injunctive relief and damages.

The federal court determined that “Although diabetics must monitor their food intake, there is no medical necessity for them to consume hot food” (see p. 7). The court also determined that since J.M. was diagnosed with diabetes 5 years prior to the federal litigation, and since Parent argued that reheating homemade lunches would only be needed “until such time that [J.M.] was able to adjust to the dietary demands of his newly diagnosed condition,” the request for an injunctive relief was moot (see p. 22).

Parent also argued that the school’s failure to accommodate J.M. to reheat his homemade food and supervise J.M. food intake was discrimination under 504 and ADA. The court disagreed (see p. 27-30). In fact, the court held that the “request to heat up J.M.’s homemade food represents the archetype of a preferential, as opposed to a necessary, accommodation” (see p.30). As for supervising J.M.’s food intake, this, too “represents a preferential, as opposed to a necessary, accommodation” (see p. 32).

The court was unable to evidence of any discrimination (see p. 35). Since school staff had been monitoring J.M.’s glucose levels during lunch for years by this point (see p. 33-35), and since there was no evidence or proof that reheating lunches were medically necessary, summary judgment to the defendants was appropriate.

This case is rather remarkable because it seems to me that if the school had simply provided a microwave in the cafeteria so that students could heat up their own homemade lunches, the school district (and the taxpayers) could have saved an enormous amount of money. Alternatively, Parent could have purchased the microwave and donated it to the school cafeteria. Microwaves can be purchased for less than $100 these days. This litigation probably cost the taxpayers tens of thousands of dollars. Was it worth it? On the other hand, the school district and its attorneys may have been concerned with slippery slope — today, a microwave; tomorrow, a blender. That’s certainly what they might have been thinking. And there are certainly dangers associated with the use of kitchen appliances, especially among young children.

© 2012, Matthew Stoloff, Esq.. All rights reserved.

Matthew Stoloff, Esq.

Matthew Stoloff, Esq. is an attorney in New Jersey. He focuses on special education matters, disability discrimination issues, employment law and animal law throughout northern and central New Jersey. For more information about Mr. Stoloff and his practice, see his website.

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Diabetes, Microwaves, and 504 originally appeared on Matthew Stoloff's Blog on January 30, 2012.

Accessible technology is an important topic since many K-12 schools, colleges, and universities are transitioning towards “e-books” (electronic book readers), and some of these e-books are not accessible to students who are visually impaired or mobility impaired. Likewise, schools that deploy web applications on their websites may not be accessible to visually impaired students. As schools transition to e-books and other emerging technologies, it is important that school personnel provide equal educational opportunities to students with disabilities.

The “Dear Colleague” letter to the K-12 schools is similar to the “Dear Colleague” letter sent to colleges and universities. Both letters reference a “Dear Colleague” letter that was previously sent in June 29, 2010, which explained the importance of providing equal educational opportunities to students with disabilities:

The [Dear Colleague Letter of June 29, 2010] explains that under the Americans with Disabilities Act of 1990 and Section 504 of the Rehabilitation Act of 1973, educational institutions cannot require the use of electronic book readers in a classroom setting if the readers are not fully accessible to individuals with disabilities, including individuals who are blind or have low vision, unless those individuals are provided accommodations or modifications that permit them to receive all the educational benefits provided by the technology in an equally effective and equally integrated manner. (Emphasis added.)

The FAQ explains that the “Dear Colleague” letters on accessible technology and e-books do not impose any additional requirements on K-12 schools, colleges, and universities. Rather, these letters are clear reminders that K-12 schools, colleges, and universities must comply with federal anti-discrimination laws, including the Americans with Disabilities Act of 1990, as amended, and Section 504 of the Rehabilitation Act of 1974.

These “Dear Colleague” letters stress that school personnel need to be familiar with federal anti-discrimination laws and know when to develop individualized accommodations and modifications for students with disabilities. If you know of a student who is not being provided equal educational opportunities due to inaccessible technology, you may wish to consult an attorney to evaluate your options.

© 2011, Matthew Stoloff, Esq.. All rights reserved.

Matthew Stoloff, Esq.

Matthew Stoloff, Esq. is an attorney in New Jersey. He focuses on special education matters, disability discrimination issues, employment law and animal law throughout northern and central New Jersey. For more information about Mr. Stoloff and his practice, see his website.

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Technology Accessibility in Schools originally appeared on Matthew Stoloff's Blog on June 10, 2011.

Since mid-May, a number of bloggers (here, there, over there, and way yonder) have commented about a federal complaint filed by the Equal Employment Opportunity Commission (“EEOC”) on behalf of a person with dwarfism against Starbucks, Inc. According to the complaint, Elsa Sallard is a person with dwarfism who was training to become a barista at Starbucks. Ms. Sallard requested “a stool or small stepladder” in order to be able to perform her job as barista. Starbucks allegedly refused to provide the requested stool or stepladder and subsequently fired Ms. Sallard.

The EEOC and Ms. Sallard allege that Starbucks violated the Americans with Disabilities Act by not providing the stool or stepladder and demand injunctive relief, money damages, and punitive damages.

The EEOC issued a press release, stating that “Employers cannot blithely ignore a request for a reasonable accommodation by a qualified individual with a disability.”

Assume that the alleged facts occurred. The legal question remains: “Is dwarfism a disability?”

Under the Americans with Disabilities Act, a disability is a “physical or mental impairment that substantially limits a major life activity.” Here, the definition of disability has three parts: (1) physical or mental impairment, (2) substantially limits, (3) major life activity. The concepts “substantially limits” and “major life activity” were recently broadened in a recent amendment to the Americans with Disabilities Act, which took effect on January 1, 2009. The EEOC implemented revised regulations which took effect on May 24, 2011. A non-exhaustive list of “physical impairment,” “mental impairment,” and “major life activity” are provided in the EEOC regulations.

A “physical impairment” could include, but is not limited to: “Any physiological disorder or condition, cosmetic  disfigurement, or anatomical loss affecting one or more body systems, such as neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular,  reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin, and endocrine.”

A “major life activity” could include, but is not limited to: “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.”

The concept “substantially limits” is broad and open to legal interpretation. The regulations provide that an impairment that “substantially” limits a “major life activity” may mean that the person’s disability “substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population. An impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting.”

To address the question whether dwarfism is a “disability,” the court needs to know and understand each of the three parts of the definition of “disability” under the Americans with Disabilities Act (“ADA”), as amended. Then, the court is going to have to make a determination whether dwarfism meets the legal definition of “disability” under the ADA.

If this case is not settled, the court will likely review caselaw to see how other courts have addressed anachondroplasia dwarfism in the context of disability discrimination cases, including Dexler v. Tisch, Telesca v. Long Island Housing Partnership, and Roloff v. SAP America.

Assuming, for the sake of the argument, that the court rules that dwarfism is a disability as defined under the Americans with Disabilities Act, Starbucks’ argument that a stool or stepladder is dangerous and may impair productivity would not be far fetched: In a case that predates the Americans with Disabilities Act, a court accepted the employer’s argument that providing a stool or stepladder to a person with anachondroplasia dwarfism may pose safety risks and impair productivity.

Gary Arnold pointed out that Starbucks has had two years to settle this case prior to the filing of the complaint. My guess is that Starbucks feels very strongly that providing the stool or stepladder as an accommodation may pose safety risks not only to Ms. Sallard, but to the other baristas who will be working alongside with her.

I have been to Starbucks several times and have observed that the space where baristas work is often narrow and cramped. Starbucks might feel that it is necessary to invest a significant sum of money to expand the area where the baristas work to address any potential safety risks to Ms. Sallard and her co-workers. Construction to expand the space where the baristas work may require that Starbucks close the location for a period of time. Moreover, such construction may cause the size of the sitting area for customers to shrink, which could mean less profits for Starbucks.

An interesting case indeed!

(Note: My understanding is that “dwarves” prefer to be called “little people,” “LP,” or “person of short stature.” I mean no offense by using the word “dwarfism”–by using that term, I am referring to those who have anachondroplasia dwarfism, which affects 85% of those who are short in stature. The federal complaint that the EEOC filed repeatedly uses the word “dwarfism.”)

© 2011, Matthew Stoloff, Esq.. All rights reserved.

Matthew Stoloff, Esq.

Matthew Stoloff, Esq. is an attorney in New Jersey. He focuses on special education matters, disability discrimination issues, employment law and animal law throughout northern and central New Jersey. For more information about Mr. Stoloff and his practice, see his website.

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Is Dwarfism a Disability? originally appeared on Matthew Stoloff's Blog on June 3, 2011.

Fellow blogger Ann Kiernan, an employment attorney in New Jersey, recently blogged that the Equal Employment Opportunity Commission has issued its final rule interpreting the employment provisions of the Genetic Information Non-Discrimination Act (GINA), a law that provides protection against genetic discrimination. The regulations will take effect on January 10, 2011.

GINA is an important federal law that took more than 12 years to come to fruition. Signed into law by former President George W. Bush in May 2008, Senator Ted Kennedy described GINA the “first major new civil rights bill of the new century.” One purpose of GINA is to prohibit employers from making employment decisions on the basis of the adverse genetic information. Thus, under GINA, an employer cannot make hiring, firing, job placement, or promotion decisions on the basis of an employee or potential employee’s genetic information. Moreover, under GINA, employers are prohibited from retaliating against employees who allege genetic discrimination. (Note: the term ‘employees’ include ‘applicants’ and ‘former employees.’)

According to the GINA statute, “genetic information” includes:

• Genetic tests of an individual and their family (including fetuses);
• Individual or family medical history; and
• Requests for, or receipt of, genetic tests or genetic services.

Genetic tests include tests “for a genetic variant for Huntington’s Disease and carrier screenings of adults using genetic analysis to determine the risk of conditions such as cystic fibrosis, sickle cell anemia, spinal muscular atrophy, or fragile X syndrome in future offspring.”

Thus, an employer who requests or requires certain genetic information as a condition of employment has violated the GINA law. Likewise, an employer requiring that an employee undergo genetic testing in order to be eligible for health insurance benefits has likely violated the GINA law.

An individual who believes that her rights has been violated under the GINA law may file a claim against the employer. At this time, the procedural rules under GINA appears similar, if not identical, to the procedural rules under Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, sex, color, religion, and national origin. Interestingly enough, the EEOC points out that the remedies under GINA is identical to the remedies under Title VII, which includes: reinstatement, back pay, injunctive relief, as well as compensatory and punitive damages.

Over the past few months, employment attorneys, including Adria B. Martinelli, have written some interesting articles about GINA, including “Do Bald Employees Finally Have a Cause of Action Under GINA?” and “Does GINA Provide a Cause of Action for Overweight (or Overly Attractive) Employees?” In the coming months and years there will be no doubt very interesting cases that will test the scope of the GINA statute. In the meanwhile, employees and employers alike are encouraged to familiarize themselves with the GINA law. A good starting point is the GINA Q&A.

© 2010, Matthew Stoloff, Esq.. All rights reserved.

Matthew Stoloff, Esq.

Matthew Stoloff, Esq. is an attorney in New Jersey. He focuses on special education matters, disability discrimination issues, employment law and animal law throughout northern and central New Jersey. For more information about Mr. Stoloff and his practice, see his website.

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EEOC Issues GINA Regulations originally appeared on Matthew Stoloff's Blog on November 22, 2010.

The response to Lucy and Otto’s story was all over the map. Some readers thought Lucy was “sick,” “bizarre,” or “creepy.” Others wondered about the damage Lucy may be doing to Otto. Still others thought Lucy was doing the right thing in helping Otto find love and enjoy life. I leave it to the reader to form his or her own judgement about Lucy. But before you do, consider what Otto had to say: he said that he would like a girlfriend so that he can “have a shower together, wash her back and have a lazy day in bed. Also go to the cinema and things like that.”

This post is not about Lucy. Rather, this post aims to change public perception that it is abnormal for disabled people to want sex, companionship, and marriage. Disabled people who marry and have sex shouldn’t be a taboo topic. Sex and companionship are basic human needs. Individuals with different kinds of disabilities have such needs. Yet, the idea that someone with cerebral palsy or an intellectual disability cannot–or should not–date, marry, and/or have sex is very dated.

Perhaps because people in general are more used to the idea of physically disabled individuals dating and marrying, more people struggle with the idea of an intellectually challenged individual (like Down’s Syndrome) marrying and having sex. In a Frequently Asked Questions webpage on Sexuality and Intellectual Disabilities, the American Association on Intellectual and Developmental Disabilities writes:

“[A]ll individuals are sexual beings. Expressions of sexuality include, but are not limited to, socialization, activities of friendship, boundaries in relationships, body awareness, human connectedness, genital interactions, assertiveness, self image, self-care, decision making, and personal code of ethics.”

For specific information about issues of sexuality in Down’s Syndrome, see Dr. William Schwab’s interview and this study.

Caption: Photo of man and woman both holding a heart symbol.

Regardless of the extent of one’s physical or intellectual impairments, the fact is that a great deal of people with disabilities want companionship and have sexual needs. And yes, many are married! A google search can turn up hundreds of stories about individuals with disabilities who marry.

Not too long ago, the San Francisco Chronicle recently ran a wonderful story about Kim Bazile and Noah Kessler who met 20 years ago and married in 2004. Both are developmentally disabled. Similarly, artist extraordinaire Dan Keplinger, otherwise known as “King Gimp” in that well-made 1999 documentary, has cerebral palsy and recently married. Back in 2005, the Wall Street Journal profiled Carrie Bergeron, a 29 year old New York woman with Down’s who married.

In June 2006, the Daily Mail (a U.K.-based newspaper) ran a long article about a Down’s couple. The romance between this particular couple is described in intimate detail and is quite amazing. (The reporter writes that they “share a love and devotion so raw that it is almost painful to watch. With their simple logic and searing honesty, they enjoy a relationship which perhaps every husband and wife should aspire to.”)

Isn’t it interesting that reporters and academics are beginning to recognize the things we can learn from about sex and marriage from people with disabilities? In fact, The Sunday Times recently ran a terrific story about what the disabled can teach us about sexual fulfillment.

Academics and practitioners at The National Sexuality Resource Center in San Francisco have been hard at work changing how the public thinks about disabled people and love and marriage. Their website is full of useful information and is a testament to their commitment to changing public perception. Additional professional and academic support may be found here.

In some countries, disabled people are prohibited from marrying. For example, in the country of Georgia, there is a law that prohibits some physically and mentally disabled persons to marry. That law is sorely outdated. Indeed, such laws should be invalidated because they violate basic human rights. It is hoped that in the future, everyone around the world will have a right to marry if they so choose, regardless of disability.

For the rest of the world where no such discriminatory laws exist, the internet has been boon for people with disabilities and finding love can be easier for many at such dating sites as Dating4Disabled.com, DisabledSinglesConnection, and LoveByrd, among countless others. The ways in which people with disabilities can find romance will increase as technology continues to develop. Many people with disabilities are reaching out not only to dating sites to find love and friendship, but also to other online communities, like Disaboom, where they can read articles (such as”Dating with a Disability: The Best Ways to Disclose Embarassing Sex Issues” and “Be A Sex Advocate For Your Sexual Health“) and ask other people with disabilities questions and advice about love, sex, and marriage.

Beautiful, isn’t it?

Happy Valentine’s Day.

© 2010 – 2011, Matthew Stoloff, Esq.. All rights reserved.

Matthew Stoloff, Esq.

Matthew Stoloff, Esq. is an attorney in New Jersey. He focuses on special education matters, disability discrimination issues, employment law and animal law throughout northern and central New Jersey. For more information about Mr. Stoloff and his practice, see his website.

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Valentine’s Day is for Disabled People Too originally appeared on Matthew Stoloff's Blog on February 14, 2010.

Charter schools are elementary or secondary schools in the United States that receive public money but have been freed from some of the rules, regulations, and statutes that apply to other public schools in exchange for some type of accountability for producing certain results . . .

In Charters: Students With Disabilities Need Not Apply?, Thomas Hehir reminds us that charter schools are not exempt from special education law. Indeed charter schools must comply with the Individuals with Disabilities in Education Act, Section 504, Americans with Disabilities Act, as well as applicable state anti-discrimination laws. Randy Chapman, the Director of The Legal Center for People with Disabilities and Older People in Colorado, provides a concise overview of the laws that charter schools must comply with in The IDEA and Charter Schools. For more specific examples in Question and Answer Format, see the Pennsylvania Education Law Center’s pamphlet, Students With Disabilities Attending Public Charter Schools.

Yet, according to studies and anecdotal evidence that Mr. Hehir cites, charter schools apparently serve few students with disabilities and may be discouraging students with disabilities from enrolling.

There is at least one white paper about the special education challenges that charter schools must face: Lauren Morando Rhim’s Special Education Challenges and Opportunities in the Charter School Sector (NCSRP Working Paper # 2008-12, Center on Reinventing Public Education) (cited with permission).

This paper clearly illustrates the many special education issues that charter schools face due to their small size. Here is an excerpt:

[C]harter schools are generally too small to realize economies of scale when it comes to special education staff or programs. For instance, a charter school with a child with autism is required to provide the same services and supports as a district with a large number of children with autism. Furthermore, the district can place the students with autism in a single school and concentrate specialized staff, materials, and equipment, thereby distributing the overall program cost across multiple children. A charter school with only one or two children with autism cannot distribute the cost of the services across multiple students.

If charter schools are too small to realize economies of scale, then parents and their children will, inevitably, face challenges too.

Another interesting challenge for parents of students with disabilities is that a charter school can be its own district or it can be its own Local Educational Agency (LEA), which may be problematic. A good overview of these two challenges can be found in Public Charter Schools and Students with Disabilities. For more details about the relationship between charter schools and LEAs, I suggest reading Charter School Legal Status and Linkage to an LEA.

In late 2009, the Boston Globe ran a story, Charter schools lag in serving the neediest, which questioned the successes of charter schools due to the fact that charter schools recruit fewer children with special needs and children whose native tongue is not English. The reporter asked a very important question: “Are many charter schools achieving dazzling [achievement test] scores because of innovative teaching or because they enroll fewer disadvantaged students?”

I don’t know the definitive answer to that question, though the evidence we have seems to suggest that charter schools aren’t terribly in favor of school diversity. Based on what I’ve read thus far, it appears that school segregation is increasingly becoming a hot topic once again–this time in charter schools.

When charter schools do not serve the needs of disadvantaged students, including students with disabilities, this gives the public a distorted view why charter schools may be so successful.

Whether or not the public has a distorted view of charter schools, the reality is that there are more than 5,000 charter schools throughout the country. That number will surely increase; and the government, children’s advocates, and special education attorneys must work together to ensure that charter schools comply with applicable federal and state laws governing special education.

Charter schools are a viable option for many children. In some cases, it may be a viable option for children with disabilities. Before enrolling your child at a charter school, it is important to do your research and due diligence. If you are considering finding a charter school for your child, see this map.

© 2010, Matthew Stoloff, Esq.. All rights reserved.

Matthew Stoloff, Esq.

Matthew Stoloff, Esq. is an attorney in New Jersey. He focuses on special education matters, disability discrimination issues, employment law and animal law throughout northern and central New Jersey. For more information about Mr. Stoloff and his practice, see his website.

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Special Education Services in Charter Schools originally appeared on Matthew Stoloff's Blog on February 1, 2010.

But I’m not interested in those guys.

I’m interested in Doug Barron and his case against PGA Tour.

Who’s Doug Barron?

Apparently, many people did not even know who Doug Barron was until November 2009 when PGA Tour alleged that Doug had failed a drug test.

When I heard of the possibility that golfers took steroids or performance enhancing substances to improve their golfing game, I was surprised. But apparently, Doug didn’t fail the drug test because he took steroids or Human Growth Hormone to gain an unfair advantage over other players. Doug failed because he took beta blockers to treat a heart condition and synthetic testosterone because he suffers from hypogonadism. Consequently, PGA Tour suspended Doug for a year.

I thought this was fascinating because it intersects disability law with sports. It raises important questions about anti-doping policies that punish players for taking controlled substances to treat their disability.

Hypogonadism, generally known as “low testosterone,” is a medical condition that can affect men and women. Symptoms of hypogonadism in men may include poor libido, fatigue, muscle atrophy, infertility, depression, and other medical issues. A normal testosterone count is 300-350 nanograms per deciliters of blood. But according to this CNN report and this Golf magazine article, Doug’s testosterone count is 78 nanograms. The synthetic testosterone that Doug was taking was intended to increase his unnaturally low testosterone count to normal ranges.

In addition to hypogonadism, Doug also has mitral valve prolapse. To treat this condition, Doug was prescribed beta blockers, which is also used to treat hypertension, angina, and glaucoma, among others.

The PGA Tour’s stance is that synthetic testosterone and beta blockers have been used to enhance performance and are known to be used for such purposes. It’s true. The scientific literature is replete with evidence that synthetic testosterone and beta blockers enhance sports performance; and there are thousands of athletes who take these types of performance enhancing drugs to gain a competitive advantage. But that wasn’t Doug’s purpose, was it?

I find this an interesting case because it makes me wonder about the anti-doping policies that are in force at middle schools and high schools around the country. If a student with a disability takes medication to treat a condition or disease and subsequently fails a random drug test for “performance enhancement,” what result? Should schools and local sports clubs make exceptions for students who take medications to treat their conditions?

Considering that Doug doesn’t have Tiger Woods’ physique and didn’t make nearly as much (he allegedly made nothing in 2009), Marty Henwood doesn’t think Doug is a cheater. Steve Ellen of CBSSports.com argues that Doug has a legitimate disability and should be exempted from PGA Tour’s anti-doping policy. Robert S. Whitehead, the CEO of Slate Pharmaceutical, Inc., defends Doug and said that PGA Tour’s actions was “dopey.” Even Harvard medical expert, Dr. Abraham Morgentaler, criticizes PGA Tour and calls the suspension “unreasonable, unfair, and discriminatory.”

PGA gives its side of the story here. Doug gives his side of the story here.

As of this writing, Doug’s case against PGA Tour is still pending.

Should Doug be punished for his use of synthetic testosterone or beta blockers? Should Doug be listed under the same category as Mark McGuire and Jose Canseco? What’s your stance?

© 2010, Matthew Stoloff, Esq.. All rights reserved.

Matthew Stoloff, Esq.

Matthew Stoloff, Esq. is an attorney in New Jersey. He focuses on special education matters, disability discrimination issues, employment law and animal law throughout northern and central New Jersey. For more information about Mr. Stoloff and his practice, see his website.

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Disability, Sports, and “Performance Enhancing Drugs” originally appeared on Matthew Stoloff's Blog on January 25, 2010.

But in just a few short weeks after giving birth, Kaney broke up with her boyfriend, David Trais. David then demanded full custody of Aidan. David alleges that despite all the support systems in place, Kaney is unfit to be a mother. In December 2009, the Chicago Tribune published a follow-up article, Disabled Mom fighting to keep her son.

Now that the case has reached the courthouse where a judge is hearing arguments from both sides, bloggers have been discussing the custody dispute, and many blog readers have defended Kaney’s right to raise her son. See Lisa Belkin’s Should A Quadriplegic Mom Have Custody?; Jeanne Sager’s Quadriplegic Mom Fights Discrimination to Keep Son; and Sarah Caron’s Is She Fit To Parent? Over 100 comments have been submitted here: Can a quadriplegic be a good parent? Her ex-bf says “No.”

Kaney’s situation is unique, but not new. Doesn’t anyone remember the story of Robert Carney who was a quadripegic and fought for the custody of his two sons? Or the story of Tiffany Callo, a woman with cerebral palsy who fought to raise her two children? Or even Sean Penn’s role in I Am Sam?

According to DisabledParents.net, there are more than 8 million disabled parents in the United States. It is not known how many single disabled parents there are in the United States, but it is probably a good chunk of the 8 million. Individuals who are deaf, blind, paraplegic, quadriplegic can be capable parents. Even parents with mental impairments can be capable parents.

Now is a good opportunity to read about the challenges that disabled parents face and the ways in which they can overcome those challenges to successfully raise their children. On Being A Disabled Parent is a terrific starting point, in which a deaf-blind mother (who is married to a quadriplegic husband) shares her personal stories about raising her twins. I Know I’m Raising Really Good Girls was written nearly a decade ago by a mother with cerebral palsy, and it is still very relevant to this day. Although I haven’t seen it yet, Parents with Developmental Disabilities: A Fair Chance is a film in which six developmentally disabled parents talk about raising their kids.

There are also several books about parents with disabilities, including Disabled Parents: Dispelling the Myths and Parenting and Disability: Disabled Parents’ Experience of Raising Children.

For a host of links containing a wealth of information about disabled parents, see Parents With Disabilities Online and The Looking Glass.

It will be very interesting to see who will ultimately get custody of Aidan and the reasons for the judge’s decision. I hope all of you will join me in keeping a close eye on this case. In the meantime, check out the links I found above. You might be surprised.

© 2010, Matthew Stoloff, Esq.. All rights reserved.

Matthew Stoloff, Esq.

Matthew Stoloff, Esq. is an attorney in New Jersey. He focuses on special education matters, disability discrimination issues, employment law and animal law throughout northern and central New Jersey. For more information about Mr. Stoloff and his practice, see his website.

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Parents with Disabilities?: Yes, they can! originally appeared on Matthew Stoloff's Blog on January 11, 2010.

This Montana case is about whether an employer is legally obligated to “accommodate service animals.”

This unique case resulted in a surprising outcome, perhaps in a way that no disability rights attorney or advocate could have predicted. Equally surprising is the fact that this case has gotten scant discussion in the blogosphere. (The only two I found were this one and that one.) I hope my readers will agree that this case merits discussion.

Let’s look at what happened in this case.

Janelle McDonald has a leg injury that makes it difficult for her to walk up the stairs, walk long distances, or walk on concrete. McDonald also suffers from various psychological disorders, including “chronic depression and disassociative identity disorder.” McDonald’s service dog is an Australian Shepherd named Bess who has been trained to provide physical support whenever McDonald needs to stand or walk. In addition, when McDonald experiences a psychological episode, Bess provides McDonald “tactile stimulation in the event of a dissociative episode” and brings McDonald “back into reality.”

McDonald’s office was located in a carpeted room. But the hallways leading to the restroom, elevator, meeting rooms, and building entrance/exit were tiled. McDonald alleged that Bess had “difficulty maintaining traction on the tile floors” and “slipped on these floors repeatedly.”

McDonald tried training Bess to maintain traction on the tiles. She also tried fitting Bess with boots so that Bess would not slip. Nothing seemed to work: Bess kept slipping and subsequently injured her shoulders, neck, and chin. Over a period of 17 months, McDonald repeatedly requested that her employer install non-skid floor coverings to prevent Bess from slipping any more. Soon, Bess had injured herself to a point where she could no longer work as a service dog. Bess retired, and McDonald found employment elsewhere. McDonald’s employer never installed the non-skid floor coverings or carpeting that McDonald requested.

McDonald filed a complaint against her employer. In essence, McDonald argued that her request for a non-skid floor covering was a reasonable accommodation and that the failure to provide the non-skid floor covering violated state law and the Americans with Disabilities Act.

The Supreme Court of Montana held that McDonald’s employer was legally obligated to install the non-skid flooring. In the court’s opinion, the non-skid flooring accommodation was not for Bess–rather, the accommodation was for McDonald because she depended on Bess. Therefore, the non-skid flooring was necessary “to enable McDonald to perform her job duties.”

The court drew an ingenious analogy:

The court went on to say:

The McDonald case is also interesting for other reasons that I have not covered here. I encourage disability rights attorneys and advocates to read the decision in its entirety and pay close attention to the arguments that McDonald’s employer raised and how the court dealt with those arguments. This case contains language that is persuasive and may have widespread implications outside of Montana.

In my opinion, McDonald is the most interesting (and perhaps the most significant) service animal case of 2009.

© 2010, Matthew Stoloff, Esq.. All rights reserved.

Matthew Stoloff, Esq.

Matthew Stoloff, Esq. is an attorney in New Jersey. He focuses on special education matters, disability discrimination issues, employment law and animal law throughout northern and central New Jersey. For more information about Mr. Stoloff and his practice, see his website.

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Accommodating Service Animals originally appeared on Matthew Stoloff's Blog on January 4, 2010.

But all of that is based on Chinese astrology, which has a long and rich history.

I started this blog post with a brief description of the Chinese zodiac signs because I feel it is a good segue to my topic: the year 2009 was the Year of the (Service) Dog.

I suspect that there was probably more discussion, more debate, and more litigation about service dogs and service animals in 2009 than in past years. There are several reasons for this.

One reason is because our traditional notions of service animals are changing. Traditionally, we thought of service animals that assist the blind (“seeing-eye dogs”), the deaf or hearing impaired (“alert dogs”), and the physically disabled (“mobility service dogs”). Utilizing effective training methods, animal trainers can now train animals to assist children who are deathly allergic to peanuts, children with autism, and soldiers with post-traumatic stress disorder. There are service dogs that detect low blood sugar in people with diabetes. There are also service snakes, service ferrets, and service dogs that detect oncoming seizures in people who have epilepsy. Many of these service animals have been profiled in the newspapers across the country. I have talked about these service animals in previous blog posts, including Service Animals and the Law and especially in Should We Rethink the Concept of Service Animals?

Caption: A seeing eye miniature horse guides a visually impaired person in a store. Courtesy of Guide Horse Foundation.

A second reason has to do with the types of animals that are being used to mitigate the disability. We typically think of dogs as the creatures of choice to assist the physically disabled. But not all dogs may be able to perform certain tasks as well as other animals. This past year, there have been several news articles about various animals that are used as service animals, including miniature horses, monkeys, parrots, pigs, snakes, lizards, ferrets, and rats. I discussed the use of these creatures as service animals in a previous blog post, “Should We Rethink the Concept of Service Animals?” which included a discussion of two lengthy articles on the use of exotic creatures as service animals, Rebecca Skloot’s “Creature Comforts” and Joe Eskenazi’s “Service With a Snarl.” Other bloggers have also shared their reaction to use of exotic animals as service animals (see, e.g., Definition of ‘Service Animal’ Hotly Debated: Monkeys, Horses, Birds – Oh my! … Helper Parrots & Guide Dogs: Where to Draw the Line? … Man’s Use of Snake As A Service Animal … Everybody’s Got Something to Hide Except Me and My Service Monkey).

A third reason has to do with certain people who pawn their companion pets as service animals. I discussed the social problem of “fake service animals” in Badly Behaved ‘Service Animals’ and When Companion Pets Become Service Animals. By exposing people who are taking advantage of the system, the media is shedding light on the problems businesses and individuals with disabilities face when service animals visit places of public accommodations. Some businesses do not understand what they can and cannot do under the law. Individuals with disabilities who depend on their service animals face increasing scrutiny. And people who pretend to have disabilities and pretend that their pets are service animals cause multiple problems for both businesses and the people who depend on their service animals.

A fourth reason has to do with the fact that parents who have children with disabilities are becoming more knowledgeable about the Americans with Disabilities Act. Parents who learn about the Americans with Disabilities Act subsequently encourage their disabled child to take their service animal to school. Sometimes, the school will react negatively to the idea of a service animal brought to school. When this happens, the parents will often sue on behalf of their child; and when this happens, the press and bloggers will report the ongoing litigation between the parents and the school. Two closely watched cases this year involved Carter’s dog Corbin and Kaleb’s dog Chewey. I discussed potential arguments why schools don’t want service animals in schools in Service Animals in the Schools. I also discussed whether IEPs are required in order to for students to be accompanied by their service animals in Are IEPs Necessary for Service Animals?

A fifth reason has to do with new and proposed legislation permitting children to bring their service animal to school. Although a school may be a place of public accommodation as that term is used in the Americans with Disabilities Act, some state legislators want to enact laws that explicitly provide that children with disabilities may bring their service animals to school. By enacting such laws, the state seeks to eliminate the need for either the parents or the schools to litigate the matter, which saves time and money. The Governor of Virginia, Tim Kaine, recently signed a bill that explicitly require schools to permit children with disabilities to bring their service animals. New Jersey Senate Majority Leader Stephen Sweeney has recently proposed similar legislation.

What does the New Year have in store for us? Undoubtedly, more discussion, more debates, and possibly more litigation across the country regarding service animals. There will be more discussion about how to distinguish between service animals and companion pets. There will be more debates regarding whether exotic creatures can be trained to be service animals and whether dogs can “smell” an oncoming seizure or be trained to help autistic children from harming themselves. There will be more talk about whether service animals should be certified. We will likely see more service animals in the schools, on the streets, and in other places where the public is invited. This issue is not going away.

Happy New Year, everyone!

© 2009, Matthew Stoloff, Esq.. All rights reserved.

Matthew Stoloff, Esq.

Matthew Stoloff, Esq. is an attorney in New Jersey. He focuses on special education matters, disability discrimination issues, employment law and animal law throughout northern and central New Jersey. For more information about Mr. Stoloff and his practice, see his website.

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The Year of the (Service) Dog originally appeared on Matthew Stoloff's Blog on December 28, 2009.

The importance of extracurricular activities cannot be overemphasized, particularly for students with disabilities who are mainstreamed because it provides an opportunity for them to learn new skills, improve their talents and self-esteem, and develop relationships with their peers. In addition, when students with disabilities participate in extracurricular activities, other “nondisabled” students will look past one’s “disability” and focus more on one’s talents and skills.

Therefore, it is important that parents understand that students with disabilities have the right to participate in extracurricular activities at school.

The federal law known as Section 504 of the Rehabilitation Act requires that public schools provide students with disabilities equal opportunities to participate in extracurricular activities as their non-disabled peers. For those who enjoy reading regulations may refer to 34 CFR Section 104.37.

Many schools must also comply with another applicable federal law that prohibits discrimination on the basis of disability: The Americans with Disabilities Act. Like Section 504, the regulations that public entities (which include schools) must adhere to under the Americans with Disabilities Act are stringent.

Children with disabilities may also be protected by another federal law known as The Individuals with Disabilities in Education Improvement Act. This is a very important law that affords children with disabilities the right to a “free and appropriate education.” A “free and appropriate education” may include gym classes, including physical and occupational therapy, as well as any extracurricular activities that may be available to the general student population.

Under these federal laws, schools must not discriminate against students on the basis of disability and may be required to implement necessary modifications or provide accommodations in order for students with disabilities to participate in extracurricular activities.

Here are a few concrete examples:

1. A student with diabetes who tries out for the cheerleading team may not be excluded because she may need to give herself insulin.
2. A student with autism or Asperger’s Sydrome may not be excluded from participating in Tae Kwon Do classes because he or she is non-verbal.
3. A deaf or hard-of-hearing student may be provided a sign language interpreter to help facilitate communication at a student government club meeting.
4. A student who is blind may be permitted to touch the chess pieces on the board or have someone verbally explain where a piece has been moved to.
5. A school would be required to provide wheelchair accessible mode of transportation for a disabled student who wishes to participate at an off-site, school-sponsored music training program.
6. A student with mobility issues who wants to play golf but cannot walk long distances may ride in a golf cart.
7. A student who is allergic to nuts may join a baseball team and ask the school to implement a policy prohibiting all team players from bringing, eating, or spitting out sunflower seed shells, pumpkin seeds, and peanuts.

Additional examples of modifications and accommodations are provided in this wonderful article titled, “‘I Know I Can Do It’: Sports are for Disabled People Too.”

Over the years, there have been many interesting cases involving students with disabilities who were denied from participating in extracurricular activities. A summary of some of these cases may be found here and there.

The purpose of this article was to inform parents that extracurricular activities play an important role in every child’s life. Children with disabilities who participate in extracurricular activities develop skills and talents and friendships. Children with disabilities have the right not to be discriminated against on the basis of disability. Moreover, schools may not deny children with disabilities the opportunity to participate in extracurricular activities.

If your child has a disability and is interested in participating in an extracurricular activity, but has not been able to do so, your child may be a victim of disability discrimination. It is important that you advocate on behalf of your child and speak with the school to find out why your child has not been afforded an opportunity to participate in an extracurricular activity of his or her choosing. If you are unable to make headway with the school, you may wish to consult with a child advocate or a special education attorney for assistance.

© 2009, Matthew Stoloff, Esq.. All rights reserved.

Matthew Stoloff, Esq.

Matthew Stoloff, Esq. is an attorney in New Jersey. He focuses on special education matters, disability discrimination issues, employment law and animal law throughout northern and central New Jersey. For more information about Mr. Stoloff and his practice, see his website.

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Students with Disabilities and Extracurricular Activities originally appeared on Matthew Stoloff's Blog on November 16, 2009.

In a previous blog post, I discussed the law and issues relating to service animals who accompany children with disabilities to school. Thus far, I have not discussed whether it is necessary to have an Individualized Education Plan (IEP) in order to bring a service animal to school. Those of you who have been reading my blog for some time probably know the answer to this question.

Caption: A boxer dog lies down with her head on a laptop.

Briefly, an Individualized Education Plan (IEP) is a written document that consist of goals and objectives agreed to by the parents and school district on behalf of an eligible child with a disability. The IEP will also contain the necessary accommodations, modifications, and services that the school must provide in order for the eligible child to gain a meaningful and beneficial education.

The IEP is governed by a federal law known as the Individuals with Disabilities Education Improvement Act (IDEIA [but commonly referred to as IDEA]), which guarantees eligible children a free and appropriate education.

Ideally, and when appropriate, the IEP should be designed to address the child’s educational, developmental, social, and functional needs. Thus, once a child has been identified as an eligible child, parents and the school district will meet to discuss what accommodations the child needs, what modifications are necessary for the child, and what other services the child requires in order to develop intellectually, physically, and emotionally. For additional information on IEPs, I recommend visiting Jennifer Laviano’s Connecticut Special Education Lawyer blog, the A2D Educational Advocates blog, and The WrightsLaw Way.

There seems to be conflicting information on the internet whether service animals are required to be in the IEP. This confusion is natural because the Individual with Disabilities Education Improvement Act is complex, and there are other federal disability laws at play: The Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act.

Both the ADA and Section 504 prohibit discrimination on the basis of disability. Virtually all schools are covered by the ADA, and schools that receive federal funding are subject to Section 504 requirements.

As I have explained elsewhere on this blog, the ADA protects individuals with disabilities and their service animals. There is no age limit or age requirement to be eligible under the ADA. So, all individuals who meet the ADA definition of “disability”–regardless of age–are protected under the ADA.

Therefore, if schools are places of public accommodations, schools cannot discriminate against children with disabilities under the ADA. It follows that schools cannot prohibit children with disabilities from bringing their service animals to school. Likewise, public schools that receive federal funding may not discriminate on the basis of disability and must develop a 504 plan for students who meet the definition of “disability” and want to bring a trained service animal to school.

So, does a child with a disability need an IEP in order to bring a service animal to school? I don’t think so. Hopefully, the judge in the Illinois case will see it the same way. If the judge does not, it will be interesting to find out why. I, along with many other disability rights and special education attorneys, impatiently await the judge’s decision.

© 2009, Matthew Stoloff, Esq.. All rights reserved.

Matthew Stoloff, Esq.

Matthew Stoloff, Esq. is an attorney in New Jersey. He focuses on special education matters, disability discrimination issues, employment law and animal law throughout northern and central New Jersey. For more information about Mr. Stoloff and his practice, see his website.

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Are IEPs Necessary for Service Animals? originally appeared on Matthew Stoloff's Blog on November 9, 2009.

The federal courts recently issued opinions on two service animal cases. One of these cases involves an alleged service monkey. The other case involves an alleged service dog. What is particularly interesting about these two cases is that each of the handlers were not medically diagnosed with a “disability” until some time after acquiring the “service animals.” The other interesting thing about these two cases is that there is no indication that either service animal behaves badly (at least not in the courts’ opinions).

A brief overview of the facts and the court’s analyses follow. At the end of this long post, I offer six important lessons to learn from these two cases. (If you want to skip the case discussion, you can just jump down to the six “take-home” lessons.)

Richard the Service Monkey

If Richard the “service monkey” sounds vaguely familiar, it is because you probably read about him in Rebecca Skloot’s New York Times article, “Creature Comforts.” In that article, Rebecca wrote about Richard, a Bonnet Macaque, who supposedly helps Debby Rose with her anxiety disorders and agoraphobia. I discussed Rebecca’s article at length in Should We Rethink The Concept of Service Animals? Although Rebecca just posted a brief update about Debby Rose’s case with a link to the court’s opinion, I’d like to devote some space to discussing the facts of the case and what the court determined.

Caption: Richard sits on Debby Rose's lap while driving a car. Courtesy of Rebecca Skloot

Debby Rose has owned Richard since 2004. Although she claims to have suffered anxiety disorders and agoraphobia for years, Rose’s medical records do not appear to support these claims. Apparently, Rose was not medically diagnosed until 2006. When the local Health Department determined that Richard was not a service monkey and posed a threat to public health, the Department ordered the local food establishments not to allow Richard into their buildings. Rose subsequently filed a federal complaint against various entities, alleging that she had been discriminated on the basis of disability.

Rose alleged that Richard “alleviates” her anxiety and agoraphobia symptoms. However, Rose provided no evidence that Richard had been trained to perform any specific task. Rose only alleged that Richard “breaks the spell” or “changes her mood.” Rose’s own physician (apparently) admits that Richard is a service animal to the extent that Rose is “comforted” by the monkey.

Based on the facts presented, the court determined that Debby Rose’s “disability” did not substantially impair a major life activity. (For a detailed explanation of what would constitute a “major life activity,” see my previous post, Is Driving a Major Life Activity?) The court noted that Rose had been married several times, gave birth to several children, was employed, took vacations, and was the President of a local Historical Association. The court determined that Rose’s anxiety and agoraphobia symptoms were “mild limitations.”

The court went on to say that even if Rose had a disability, the court was unconvinced that Richard was a trained service animal. The court could not find a single task that Richard was trained to perform in order to mitigate Rose’s “disability.” For example, even if Richard could retrieve a toothbrush, how does that mitigate Rose’s anxiety disorder? The task is not related to the disability–there is no connection. Likewise, even if Richard “gently” pushed people away from Debby, how does this “task” help Debby “mitigate” her disability? The court, therefore, determined that Richard was nothing more than a comfort pet.

In the end, the court granted summary judgment to the defendants. (Rose lost.)

In the days since the court’s opinion was published, at least four bloggers (here, there, over yonder, and way over there) have had some pretty harsh words to describe Debby Rose and her “monkey case.” Only one blogger, OnPoint, provided a restrained and objective perspective of this case. OnPoint also informs us to another service monkey case that was litigated in Arizona earlier this year. Have a look at what these bloggers had to say, then form your own opinions. If you like, leave a comment at the bottom of this post to share your opinion with others.

Booster the Service Dog

Unlike most bloggers who commented on the “service monkey” case, several attorneys (John Ensminger, Joshua Gerstin, Lincoln Hobbs, and Lisa Magill) have blogged about Booster the service dog case in a more thoughtful and respectful manner.

In this case, Davis Hawn, the plaintiff, purchased a condominium in 2004 and was aware that no pets were allowed on the property. In 2005, Hawn adopted a Labrador Retriever puppy named “Booster” and subsequently wrote to the condominium property association that the pet policy should be revised. The property association apparently did not respond to Hawn’s request. In 2006, Hawn claimed that he suffered from panic attacks and some mobility issues and, for the first time, Hawn referred to Booster as his “service dog.”

(By the way, Hawn and Booster were featured in The Freeport News in 2007. In that same year, Hawn wrote an article titled “My Booster: A Personal Story,” wherein he repeatedly refers to Booster as that “damn dog.”)

The property association requested documentation that Hawn suffered from these disabilities and requested proof that Booster was a service animal. Hawn provided some documentation, but when the property association requested additional information concerning Hawn’s medical providers’ backgrounds and extent of Booster’s training, Hawn failed to respond to the association’s requests. The property association then informed Hawn that until such documentation was provided for consideration, Booster could not remain at the condominium.

Hawn then filed a federal complaint. In essence, Hawn argued that he was discriminated against on the basis of his disability and was denied a reasonable accommodation.

The lower court found in favor of the condominium property association. Hawn subsequently appealed, and the appellate court agreed with the district court that the property association may request additional information and documentation in order to conduct a meaningful review. Since Hawn failed to provide the requested information within the specified time-frame, the property association had the right to deny Hawn’s application to have Booster stay in the condo. In short, Hawn lost.

The Bottom Line

This article is already quite long, so I’ll keep this short and sweet.

1. The legal definition of disability matters.
2. The tasks that a service animal has been trained to perform should be related to the handler’s disability.
3. A demonstration of the service animal performing a specific task to mitigate the alleged disability is very helpful.
4. Timing is important. There is a healthy skepticism with regard to an animal being a companion pet one day, then a service animal in the next.
5. Litigation is expensive and not always feasible. Cooperating with the other party and providing the necessary information to support your position may save time and money.
6. Where there is a conflict between the Department of Health and the right to be accompanied by a service monkey under the Americans with Disabilities Act, it’s going to be a very difficult battle.

© 2009, Matthew Stoloff, Esq.. All rights reserved.

Matthew Stoloff, Esq.

Matthew Stoloff, Esq. is an attorney in New Jersey. He focuses on special education matters, disability discrimination issues, employment law and animal law throughout northern and central New Jersey. For more information about Mr. Stoloff and his practice, see his website.

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When Companion Pets Become Service Animals originally appeared on Matthew Stoloff's Blog on November 1, 2009.

According to the ADA (which was recently amended in Jan 1, 2009 and should technically be referred to as the ADAAA), an individual with a disability is a person who (1) has a physical or mental impairment that substantially limits one or more major life activities; (2) has a record of such an impairment; or (3) is regarded as having such an impairment.

In this post, I want to talk about only the first definition. Let’s break it down in smaller components: An individual has a disability if he or she:

• has a physical or mental impairment that
• substantially limits
• one or more major life activities.

Our understanding of this one definition of disability is not complete. There are still three questions that need to be answered: What does “physical or mental impairment” mean? What does “substantially limits” mean? What does “one or major life activities” mean?

The concept of “physical or mental impairment” is broad. It may mean any type of condition, disorder, or disease that causes a physical impairment (e.g., cerebral palsy) or a mental impairment (e.g., Downs’ Syndrome). It may include a wide range of medical issues from abnormal cell growth to to reproductive issues. “Substantially limits” means something that “severely restricts” an individual from performing a particular task that comes naturally to the average person. A “major life activity” can mean many things, and this is often where attorneys from both sides will have an argument about. “Major life activity” includes the following functions:

• caring for oneself
• performing manual tasks
• seeing
• hearing
• eating
• sleeping
• walking
• standing
• lifting
• bending
• speaking
• breathing
• learning
• reading
• concentrating
• thinking
• communicating.

A person who has Cerebral Palsy is disabled under the ADA: Cerebral Palsy is a physical impairment that substantially limits a person’s ability to stand, walk, and/or speak. A person who is deaf or hard of hearing is disabled under the ADA: Deafness is a physical impairment that substantially limits a person’s ability to hear and/or speak. A person with Downs’ Syndrome is disabled under the ADA: Downs’ is a mental impairment that may substantially limit a person’s ability to learn, read, think, and/or communicate.

But what about driving? Is driving a major life activity? What if someone has a disability and the only thing that has been substantially restricted is the ability to drive?

This is a really interesting question, and so far, the federal courts have been in agreement that driving is not a major life activity. See Winsley v. Cook County, Kellogg v. Energy Safety Servs. Inc., Chenoweth v. Hillsborough County, and Colwell v. Suffolk County Police Dep’t.

In the most recent case and the first to be decided under the recently amended ADA, the court in Winsley held that each of the major life activities listed above

have several things in common with each other that driving does not share with them. Most importantly, the listed activities are so important to everyday life that almost anyone would consider himself limited in a material way if he could not perform them. This is not the case with driving. In fact, may Americans choose not to drive and do not consider the quality of their lives to have been diminished by their choice…. Moreover, the importance of the listed activities does not vary depending on where the person lives.

Back in October 2008, one blogger suggested that under the amended ADA, the courts might find that driving is a major life activity. While that is always a possibility, it did not turn out that way in Winsley.

So, it appears that the recently amended ADA does not guarantee that a person who is unable to drive due to a mental or physical impairment will meet the first definition of disability under the ADA. Thus, when an employee claims that she has been discriminated on the basis of disability, a federal court may agree that the employee has a mental or physical impairment. However, if the employee’s impairment affects only her driving, a federal court may not find that the employee has a disability under the first definition of the ADA.

The take-home lesson? It appears that one’s inability to drive, standing alone, may not be enough to win a disability discrimination case.

© 2009, Matthew Stoloff, Esq.. All rights reserved.

Matthew Stoloff, Esq.

Matthew Stoloff, Esq. is an attorney in New Jersey. He focuses on special education matters, disability discrimination issues, employment law and animal law throughout northern and central New Jersey. For more information about Mr. Stoloff and his practice, see his website.

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Is Driving a Major Life Activity under the ADA? originally appeared on Matthew Stoloff's Blog on October 5, 2009.

In the three months since that June 2009 resolution was passed, I still have not been able to find the full text of that resolution online. Suffice it to say, the AMA’s reasons for resolution are lacking. To date, only a few bloggers have discussed their responses to this resolution: here, there, and over yonder.

Caption: A doctor stands next to a slightly overweight patient who is not wearing a shirt.

The Americans with Disabilities Act is an important federal law that prohibits discrimination on the basis of disability. The law provides expansive protection for individuals with disabilities in a variety of situations. In the context of physicians, clinics, and hospitals, the Americans with Disabilities Act requires, among other things, compliance with building accessibility as well as providing patients reasonable accommodation, such as sign language interpreters for the deaf and hearing impaired.

I am not aware of any provision in the Americans with Disabilities Act that provides patients the right to sue physicians for simply discussing the patients’ disability during consultations. Nor am I aware of any case in which a patient has sued a physician under the Americans with Disabilities Act for simply addressing a health issue the patient allegedly may have had during consultations.

Therefore, in the context of patient-physician consultations, it is not clear what the American Medical Association seeks to accomplish by passing a resolution to reject efforts to make obesity a disability.

Obesity is a serious health issue. Clearly, it is important that physicians discuss obesity with their patients. However, it is equally important that physicians not harbor exaggerated or unwarranted fear of litigation. Therefore, for the sake of clarity, I encourage the American Medical Association to explain why it is singling out obesity and how the Americans with Disabilities Act is implicated with regard to patient-physician consultations. In addition, I encourage the American Medical Association to engage in open dialogue with attorneys knowledgeable in disability law before passing similiar resolutions.

© 2009, Matthew Stoloff, Esq.. All rights reserved.

Matthew Stoloff, Esq.

Matthew Stoloff, Esq. is an attorney in New Jersey. He focuses on special education matters, disability discrimination issues, employment law and animal law throughout northern and central New Jersey. For more information about Mr. Stoloff and his practice, see his website.

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An Invitation to an Open Dialogue with the AMA originally appeared on Matthew Stoloff's Blog on September 28, 2009.