I’ve received a few emails from college students who asked me for advice about law school and becoming a lawyer. Some of these people are genuinely interested in special education and disability rights issues. Some have confided in me that they have a disability. Hence, their interest in civil rights matters and desire to become a lawyer.

My advice: pursue another career.

I know it’s painful to hear it. The reality is that there are too many lawyers, too much competition, and not enough jobs for law school graduates.

Both the New York Times and The Wall Street Journal have published numerous articles over the last several years about law school graduates who can’t find jobs and the cost-benefit analysis of a law school education. If you’re thinking about law school, and you’re not keeping up with the news in the paper, you’re doing yourself and your family a disservice.

At the very least, you should read The Wall Street Journal and The New York Times. My personal recommendations include: “Is Law School A Losing Game?” and “Lawyers Settle… for Temp Jobs” and “First Thing We Do, Let’s Kill All the Law Schools” and “At Well-Paying Law Firms, a Low-Paid Corner.”

Contrary to public perception, most lawyers do not make $100,000. In fact, many make less than $50,000–and quite a few lawyers live on the poverty level. If you don’t believe me, do the research yourself.

You should read about Mike Kremen, a law school graduate, who carries $200,000 in debt and works at Radio Shack for $7.65 per hour. You should read about Alice Lingo, an attorney who was laid off from a big law firm and now works as a maid. Have a look at blogs like AboveTheLaw and Subprime JD and But I Did Everything Right! for other personal stories about law graduates who can’t find jobs.

Not surprisingly, these sad state of affairs have given some law school graduates the impetus to sue their law schools for deception.

Even some law school professors are casting law schools as a scam, questioning the value of a law school education. Among them, professor Paul Campos is one of the most vocal critics.

Now, if you have a disability, you may want to think thrice about going to law school. I’m not saying that you won’t graduate because of your disability. Not at all. I’m talking about your job prospects after graduating from law school. Sadly, the vast majority of private law firms are not terribly interested in hiring lawyers with disabilities. That is the harsh reality. As a lawyer with a disability, that’s been my experience.

I’m fairly certain you will hear (as I did) about how law firms embrace “workplace diversity.” From my experience, however, workplace diversity is limited to women and people of color. Even the federal courts appear to limit the concept of “workplace diversity” to women and people of color–the federal courts do not even track the number of law clerks with disabilities.

A law firm newsletter published back in 2007 laid it out point blank:

Of the approximately 132,000 lawyers collectively reported in the 2006-2007 National Association of Law Professionals Directory of Legal Employers, just 200, or 0.17%, were identified as disabled. Overall, about 10% of offices/firms reported at least one disabled lawyer, but less than 1% reported at least one disabled summer associate.

In “Forgotten Colleagues,” Michael S. Greco wrote that lawyers with disabilities are “overlooked as a minority group” and

their struggle has nothing to do with qualifications. . . . Instead, it stems from the reality that legal employers are not doing enough to recruit and retain lawyers with disabilities. This situation is depriving opportunity not only to the lawyers themselves, but also to law offices and clients that could be benefiting from their skills, the legal profession and society. The American Bar Association is taking steps to address the situation.

I have no idea what the American Bar Association has been doing in the last five years to improve the situation, but I can tell you that nothing has changed.

In 2009, a NALP survey found that of the 110,000 lawyers surveyed, only 255 were identified as having a disability.

In a 2011 report that involved a survey of 391 law firms and 10% of Fortune 500 corporations, results revealed that only one lawyer identified as having a disability (see pages 34-35).

Now, if you just skipped over the last two paragraphs, go back and read it. If you’ve already read it, I’m going to ask you to re-read it.

In this day and age, these numbers are nothing short of shocking.

Maybe someday the legal community will embrace lawyers with disabilities. But as of now, that time has not come. In the meantime, if you have a disability and you hear about “workplace diversity” in a private law firm, don’t get your hopes too high. Believe me, I speak from personal experience.

Still thinking about law school? Read Tucker Max and Nils Parker’s Why You Shouldn’t Go to Law School.

Still not convinced? Don’t say you weren’t warned.

The purpose of the pamphlet was to inform and instruct law enforcement agencies of their obligations under the Americans with Disabilities Act when dealing with deaf and hard of hearing individuals. For example, if a deaf person’s primary means of communication is sign language, the police department may be required to provide a trained sign language interpreter to facilitate effective communication. If a sign language interpreter is required, it must be provided at no cost to the deaf person.

For obvious reasons, a family member or friend should not act as an interpreter. (See Commonly Asked Questions about The Americans with Disabilities Act and Law Enforcement.) After all, family and friends have personal and emotional attachments; and they may either misinterpret what is being said or signed; or they may not interpret everything that is conveyed in context.

The pamphlet also provides other guidance, such as not covering your mouth when speaking to someone who is deaf or hard of hearing; talking in a well-lit area; not chewing gum when speaking; and so forth. For those of us who are deaf and/or hearing impaired, and for those of us who have experience working with the deaf and hearing impaired, all of this is common sense. In the legal world, these are all reasonable accommodations.

On the back of the pamphlet, the Department of Justice explains that an interpreter is not required under certain circumstances. One such example is when

An officer responds to an aggravated battery call and upon arriving at the scene observes a bleeding victim and an individual holding a weapon. Eyewitnesses observed the individual strike the victim. The individual with the weapon is deaf. Because the officer has probable cause to make a felony arrest without an interrogation, an interpreter is not necessary to carry out the arrest.

A recent situation involving the police and a deaf person raised issues of whether a trained interpreter was required. Seremeth v. Bd. of County Commissioners Frederick County (4th Cir., March 12, 2012).

Robert Seremeth, his parents, and his four children are all deaf. Their primary means of communication is American Sign Language (ASL).

Mr. Seremeth and his family live in Maryland where the county has a contract that requires an emergency ASL interpreter to arrive at the crime scene within one hour.

On one cold night in 2008, Mr. Seremeth had an argument with one of his children about going to bed. The child ran away from home, and Mr. Seremeth her in less than 30 minutes. Subsequently, the child called her mother via videophone; and the mother then called 9-1-1 to report allegations of child abuse. The mother also told the 9-1-1 operator that the family is deaf and there were no weapons at the house.

When the police arrived, they handcuffed Mr. Seremeth behind his back and made him kneel outside on the ground without a coat or even a pair of shoes.

A police officer with basic ASL training arrived at the scene to act as interpreter. But the officer was not fluent in ASL and could not make much headway. Mr. Seremeth’s father (who is also deaf) attempted to act as interpreter as well.

After approximately an hour, the police determined that no child abuse took place and let Mr. Seremeth go.

The police never put in a call for a trained, fluent interpreter.

As a result of having his hands cuffed behind his back, which prevented him from communicating with the police, and as a result of the communication issues that ensued, Mr. Seremeth alleged that he suffered “‘emotional issues’ and ‘persistent anger.’” Mr. Seremeth filed suit in federal court against the police officers and the county under the Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1973.

The United States District Court for the District of Maryland ruled in favor of the police officers and the county, finding that Mr. Seremeth was not a “qualified individual with a disability” under the Americans with Disabilities Act. Equally surprising, the district court also determined that Mr. Seremeth “adequately participated” in the police investigation that led the police to determine that no child abuse occurred. In any case, an ASL interpreter was not required at the scene since Mr. Seremeth was neither arrested nor brought to the police station.

Mr. Seremeth appealed and lost again. The Fourth Circuit held that the police officers acted reasonably in handcuffing Mr. Seremeth according to standard operating procedure because they could not rely on a telephone allegation that Mr. Seremeth was unarmed or that there were no weapons in the house.

I think the court was correct in determining that where there are exigent circumstances–such as responding to a domestic dispute call–reasonable accommodations may not be required. Assuming that a crime was taking place, it would not be reasonable to wait for an ASL interpreter to arrive before the police started knocking on Mr. Seremeth’s door. That is consistent with the Department of Justice’s pamphlet, as discussed above.

However, the court also determined that “it was reasonable” to call in an ASL trainee to facilitate communication. In the court’s words:

It was reasonable even though these accommodations were not best practices—practices that in other circumstances could be evidence of a failure to reasonably accommodate. The accommodations afforded to Seremeth by the deputies were reasonable given their overwhelming need to obtain information quickly to protect themselves and others from possible violence. The further accommodations requested [...] would have been unreasonable under the circumstances.

The court’s wording is very unusual in the light of the facts that transpired. Since Mr. Seremeth was handcuffed behind his back, and since no one else in the house was considered threatening or dangerous, it seems that the next best step was to call in a trained interpreter so that both the police officers and Mr. Seremeth can communicate with each other effectively and get to the bottom of things. The 9-1-1 operator and the police officers at the scene knew in advance that Mr. Seremeth and his family all communicated via ASL. So, why not call in a trained ASL interpreter to the scene to conduct a complete investigation and resolve the situation?

The court did not clearly explain why calling in a trained interpreter to the scene would have been unreasonable even if there was no arrest. This is a very strange position to adopt, one which may have very serious consequences in the future. It is a position I would like to think that courts in other Circuits will disagree with.

A full and complete police investigation cannot be conducted without thoroughly interviewing witnesses and suspects. If all of the witnesses or suspects can only communicate via ASL–as was the case here–then it makes sense to get a trained ASL interpreter at the scene. The failure to obtain a trained, neutral ASL interpreter at the scene to facilitate communication could result in a wrongful arrest. It could also result in an unsolved crime that might otherwise been easily solved with the assistance of a trained ASL interpreter on the scene.

Note: Thanks to Siouxsie for telling me about this case.

Eric is a high school student with Down’s Syndrome. He recently turned 19 years old. He will continue his education at his high school next year where he hopes to continue to play in tournaments with his classmates. The problem is that the Michigan High School Athletic Association‘s constitution imposes age restrictions on those who can participate in tournament games. Eric is, to put it mildly, too old to play in state sponsored tournaments.

According to the FAQ on the Michigan High School Athletic Association (MHSAA) website:

To participate in MHSAA tournament sponsored sports a student must be under 19 years of age except that a student who turns 19 on or after Sept. 1 of a current school year is eligible for the balance of that school year.

According to the MHSAA’s History, Rationale, and Application of the Regulations of HS Athletics in Michigan:

the age limitation cannot be waived, regardless of how few days or hours a student exceeds the limit or the circumstances which delay the student’s start of progress through school. . . . [The rule] treats all students equally regardless of race, creed, origin, gender, giftedness, or disability. . . . (p. 15)

The document goes on to state:

Throughout society, absolute age standards are accepted. Sometimes they are minimums (16 to drive, 18 to vote, 21 to drink alcohol). Sometimes the age standards are maximums. . . .

The age limitation has many purposes, among which are that it helps to create equal conditions by limiting competition to participants of approximately the same age, size and maturity. . . . (p. 15)

The document noted that the Michigan Department of Civil Rights upheld the MHSAA’s age rule even to handicapped students (cases cited on p. 16).

The document also cited Sandison v. MHSAA, 64 F.3d 1026 (6th Cir. 1995), a case that involved two high school students with learning disabilities who turned 19 years old and were declared ineligible to participate in running track. The students sought an age waiver, and they alleged that the MHSAA’s age rule violated the Americans with Disabilities Act and Section 504 of the Rehabilitation Act. The students ultimately lost that case. See also Pottgen v. Missouri State High School Activities Association, 40 F.3d 926 (8th Cir. 1994).

Despite the 73,000+ people who signed the petition to support an age waiver to permit Eric to play ball in what might be his final year of high school, the MHSAA rule imposing an age limit does not appear to be discriminatory. The rule was not written to exclude those with disabilities; rather, it is a neutral rule that excludes everyone, not just those with disabilities, who reach a certain age. That is how the Sandison court saw it back in 1995, and that is how it seems to be at the present time.

Yet, none of this has stopped Eric’s father from starting a petition to change the MSHAA constitution. This is, after all, a free country, and positive change is always a good thing.

Eric’s father says that there are 23 states that allow waivers to the maximum age rule. On its face, age waivers sound reasonable, particularly in light of the fact that some students with disabilities may need to continue their secondary education until they reach 21 years of age.

It is important to keep in mind, however, that in those states where age waivers are available, students with a disability who are over 18 years of age do not necessarily have a right to play. Other factors must be taken into consideration, such as

1. The athletic experience of the student;

2. The degree to which the student presents a risk of harm to other competitors due to his or her strength, size, or speed;

3. The nature of the sport;

4. The degree to which fair competition among high school teams would be impacted by the student’s participation; and

5. Whether the student’s individualized education plan, if any, contains a provision requiring sports participation.

See Baisden v. West Virginia Secondary Schools Activities Commission, WV Sup. Ct., 2002. See also Sandison, at 1035.

At this point, the MHSAA is not legally obligated to create an age waiver, though it would be helpful to know the specific reasons why the MHSAA won’t do it. At the time this blog post was published, I was unable to find an official statement on the MHSAA website outlining its reasons why it has rejected to create an age waiver.

In the meanwhile, netizens from both sides of the aisle are debating whether the MHSAA should permit age waivers. Some people say that age is irrelevant–so long as Eric is a student, he should be permitted to play. Others argue that Eric has to learn to appreciate the “rule of law”: Eric has to learn that rules are rules, and the rules cannot always be bent for him.

If you live in Michigan, and you believe that Eric should play ball and that the MHSAA should permit age waivers, you may want to sign the petition.

That was essentially the question before a New York federal court in S.S. v. Whitesboro School District (N.D.N.Y., January 31, 2012). This is an interesting case that intersects school sports, 504, and the Americans with Disabilities Act.

In this case, S.S. was a student who was a swimmer on her high school’s swim team. S.S. also had severe anxiety disorder (p. 2).

If S.S. experienced anxiety while in the pool, S.S. would experience “thoughts of drowning, which prevented her from being able to stay in the pool for such periods of time.” So, whenever S.S. began to experience anxiety, she would need “to exit the pool … in order to ease her anxiety” (p. 2-3).

At two different swim competitions, S.S. experienced severe anxiety attacks and left the pool (p. 3). The swim coach reproached S.S. for leaving the pool (p. 3). The swim coach also allegedly “‘verbally attacked’” and threatened S.S. when she exited the pool before swim practice was completed (p. 3).

As a result of these severe anxiety attacks and the coach’s alleged verbal statements, S.S. was unable to return to school for a significant period of time.

S.S. and her parents alleged that the school district violated her rights under 504 and the Americans with Disabilities Act by failing to accommodate S.S. for her mental disability (anxiety attacks). S.S. and her parents sought injunctive relief and money damages.

The school district filed a motion for judgment under Fed. R. Civ. P. 12(c) and offered three reasons why this case should be dismissed. The court was persuaded by the school district’s arguments.

The court held:

An essential requirement of a swim team participation is that the swimmer must be able to swim when called upon to do so. . . . There is no reasonable accommodation that a swim team coach could make for an athlete who is suddenly and sporadically afraid of the water and thus has to exit the pool during practices and competitions. (p. 10)

Ultimately, the court entered judgment in favor of the school district.

It is important to note that the court did not dismiss the importance of extracurricular activities for students with disabilities. It only held that no reasonable accommodation could be made in this particular situation.

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.

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.

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!

[Update: The parties settled fairly quickly. A consent decree was signed on August 16, 2011. The terms of the consent decree were straightforward: Starbucks agreed to post a Notice on the employee bulletin board (the Notice starts on page 7 in this document); Starbucks agreed to provide training with emphasis on the Americans with Disabilities Act; and Starbucks agreed to pay monetary damages in the amount of $75,000 to Ms. Sallard.]

(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.”)

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.

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.

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.

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.