Where is Todd’s Day in Court?

Posted on 23 September 2007. Filed under: ADA Court Cases, ADA Restoration Act of 2007, Advocacy, Audism |

Imagine, for a moment, that you had been fired, and gives an excuse that you think is weak. You think maybe the real reason you were fired might be because your boss isn’t comfortable working with a deaf person. Suppose for a moment that you have other evidence to support the idea that you might be a victim of discrimination on the basis of being deaf–in short, a victim of audism. Though, legally, you would have to say, “a victim of discrimination on the basis of disability” whether or not you believe deafness is a disability, because that’s how the law works.

You go into court with a good lawyer and a pile of evidence ready to come to your defense. You plan to use the Americans with Disabilities Act of 1990 to help you protect your rights. But, wait a minute. The court will not even listen to any of your evidence. Why? Because they have decided you can’t be covered under the ADA because you aren’t “disabled” enough to be covered by the ADA. Therefore, none of your other evidence matters–only the fact that, in the opinion of the judges, you aren’t qualified to be covered under the ADA. How would you feel then?

Something like this is what happened to a man named James Todd in Texas in 1999. He isn’t deaf–he has epilepsy. And, personally, it isn’t clear to me whether or not James Todd had a valid case: He MIGHT have been fired because his boss didn’t want to continue employing someone who might have occassional, mild seizures on the job. MAYBE the reason his employer gave was just an excuse to get rid of him. Or maybe it was perfectly legitimate. I’ve no clue. But–the courts don’t have a clue either, because they never listened to any of the evidence that Todd brought to court. They simply decided he wasn’t covered by the ADA and threw out his case before Todd had a chance to even try defending himself.

Could this happen to a deaf person in the same situation? Read his story and decide for yourself. After reading Todd’s story, you may want to educate yourself more about the ADA Restoration Act of 2007. The Restoration Act is meant to make it easier for people like Todd–or like you and me–at least get their day in court. That doesn’t guarantee they’ll win. But it would at least give disabled Americans a fighting chance to try.

This story is taken from text prepared by the Consortium for Citizens with Disabilities (CCD).

State: Texas
Disability: Epilepsy
Court: Southern District Texas 1999

James Todd

James Todd has lived with epilepsy since he was five years old. While medication helps to minimize the duration and intensity of his seizures, it does not cure his epilepsy – he still has seizures about once a week. His seizures follow a familiar pattern, beginning with a tingling sensation that signals the onset of a seizure. During a seizure, which can last anywhere from five to fifteen seconds, James is unable to speak, the left side of his body shakes involuntarily, and his thinking becomes clouded. James removes himself from the company of others as soon as he feels a seizure coming on, and lies down until the seizure is over.

In September of 1996, sporting goods giant Academy Corporation hired James as a stocking clerk, whose job it was to inventory and stock merchandise. James made approximately $5.00/hour on the job. Several weeks into the job, James had his first seizure at work, told his supervisors he had epilepsy, and explained how to respond if he had a seizure at work.

Five months later, after James had been out sick with a stomach flu for five consecutive days, Academy fired him. Although James had notified his supervisor of his illness and absence each day, as required by the company’s written work policy, Academy told him that he had violated an “unwritten policy” that prohibits taking more than three consecutive days off without sick leave or vacation leave, when the FMLA does not cover the situation. James decided to challenge Academy’s decision to fire him, and filed a complaint under the ADA.

The district court never reached the question of whether James had been fired because of his epilepsy. Instead, the court concluded that since James was able to control his seizures with medication, he was not disabled enough to claim protection under the ADA in the first place.

Had James Todd’s case been decided just two months earlier, before the Supreme Court’s decision in Sutton v. United Airlines, James would have received protection under the ADA. As the district court noted, before Sutton,

“epilepsy would, without question, be considered a substantial limitation on several major life activities, and a person suffering from epilepsy would receive nearly automatic ADA protection.” (20)

However, after Sutton, the court explained that it needed to consider whether James was substantially limited in a major life activity after taking into account how well James’ epilepsy medication worked for him. Under that analysis, James was not disabled: “[e]xcept for a time period of fifteen seconds per week, [James] is able to work, walk, talk, think and learn” and thus “cannot be considered ‘disabled’ under the ADA.” (21) The fact that James lay shaking on the floor and unable to talk for fifteen seconds per week amounts to “only” a “momentary physical limitation[] which could not be classified as substantial.” (22)

(20) Id. at 452.
(21) Todd v. Academy Corp., 57 F. Supp. 2d 448, 454 (S.D. Tex. 1999).
(22) Id. at 453-454.

The introduction to CCD’s text is posted at ReunifyGally in the entry entitled “Real People, Real Stories: Why We Need ADA Restoration.”

Also see the first case story I posted, entitled “Thinking isn’t a Major Life Activity, Say Courts.”

The next case story after this one is “Qualified to Work = Disqualification from ADA Protection.”

The fourth case story is entitled “Give Orr a Break.”

The fifth is entitled “Doing Good Work? You’re Fired!

The sixth is “Why Everybody Loses Without the ADA Restoration Act.”

The seventh is “A Hearing Woman, but a Deaf Story: Why We Need the ADA Restoration Act.

The eighth and last court case is “Unfair Precedent Ties Hands of Sympathetic Court: Why McMullin’s Case Highlights Need for ADA Restoration Act“.



I’m taking these stories from a 13-page file of case studies written up by the Consortium for Citizens with Disabilities (CCD); this file is available in both Word and PDF format.

CCD has compiled an excellent collection of materials on the ADA and on the ADA Restoration Act of 2007, so it’s well worth following their link to www.c-c-d.org/ada.

See my continually-updated list of blog entries from all over the web about the ADA Restoration Act of 2007. It’s always available from the top navigation bar: just click “On the ADA Restoration Act.”

Also, don’t miss these links: One group of activists has posted a short list of simple ideas of things you can do to help get the Restoration Act passed. And do check out the ADA Restoration Blog for updates. Or browse through background information on the ADA Restoration Act. Or contact your legislators (just be sure to uncheck the box asking to be added to their action alert email list, unless you want to receive them).

Advertisements

Make a Comment

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

7 Responses to “Where is Todd’s Day in Court?”

RSS Feed for ReunifyGally Comments RSS Feed

Andrea – how about renaming your blog? It has become an ADA defense blog instead of a “gallaudet” blog.

Jamie:

I’ve thought of that. The trouble is, “ReunifyGally” is part of the address for this blog, so I cannot really rename this blog easily without essentially taking down this blog and starting all over again with a new blog. I could do this, but it would (or at least so I assume) take a lot of time and trouble to import all the old, relevant posts from this blog to whatever the new blog is. I might do this eventually, but the magnitude of this task makes me hesitate.

I suppose a compromise solution would be to create a third blog devoted just to ADA restoration and other human rights issues such as the UN Convention on the Rights of Persons with Disabilities. Then I wouldn’t have to abandon ReunifyGally entirely. (I say third, because my second blog is at wecando.wordpress.com). Hmm. I’ll have to think about it some more, and find out how easy it is to import posts from one blog site to another (wordpress apparently is supposed to have this capability).

Thanks

ADA discrimination is very hard to prove, because it becomes his word against theirs. If they have a valid reason (and I know of many people who would fire someone after 5 days of missing work), then it is likely that they wouldn’t win. If you have something in writing or witnesses, then you may have a case. Otherwise, many situations just won’t win in court.

Rox:

True. ANY discrimination case is hard to prove, whether discrimination on the basis of disability or discrimination on the base of race, gender, sexual orientation, or something else, for the reasons you cite. However, in cases of race and gender (or possibly sexual orientation, depending on what state you’re in and whether they even include sexual orientation in their anti-discrimination law), a person who thinks s/he has been discriminated against can at least have the opportunity to present his/her side in court, including whatever evidence they have that elevates their case above the level of “he said/they said”.

But with disability, it doesn’t matter what evidence you have. You can have 10 witnesses lined up and a smoking gun in the form of internal memos from your boss saying they “don’t hire crips” and none of it matters if the courts simply decide, “Well, in our judgment you aren’t disabled enough to be protected.” The court in that case would never even bother to listen to those 10 witnesses or look at those memos. THAT’S why we need the ADA Restoration Act. The Restoration Act is what would put disabled Americans on the same footing as any one else who may sometimes be the victim of discrimination: it still wouldn’t guarantee anything, and it wouldn’t be meant to. If Charles Todd didn’t have anything better on his side than what is presented here (and although we don’t know that he did, we also don’t know that he didn’t–and neither does the court) then you may be right, he would still have lost in any case. But with a stronger law, then at least people who DO have stronger evidence on their side would have a fighting chance to actually SHOW that evidence in court.

(Deep sigh). Even if we expand the categories of disabled people covered under the ADA and removed the exclusion about adaptive devices or medication, the employers would still have pretexts to use when they want to get rid of a certain worker. The above example of firing Todd for missing five days of work for an illness is an example.

For Deaf people, it is even easier. Just wait for an occasion where a mistake is made because of miscommunication (or deliberately omitted communication) or misunderstanding of company regulations, then go ahead and fire the guy. Once there are technicalities like this, it is impossible to fight the discrimination.

[…] The second case story is in the entry entitled “Where is Todd’s Day in Court?“ […]

[…] The second case story is in the entry entitled “Where is Todd’s Day in Court?“ […]


Where's The Comment Form?

Liked it here?
Why not try sites on the blogroll...

%d bloggers like this: