An ADA Checklist as You Go About Your Practice

Vol. 5, No. 10

William D. Goren, of Decatur, Georgia, is a licensed attorney in Georgia, Texas, and Illinois. His practice (www.williamgoren.com) focuses on understanding the Americans with Disabilities Act/Rehabilitation Act of 1973 and related laws and includes, but is not limited to, ADA compliance auditing, counseling, consulting, and training. He is also the author of Understanding the ADA, Fourth Edition (ABA 2013), numerous articles, a blog about the ADA (www.williamgoren.com/blog), and is a frequent presenter and trainer. He can be reached at wgoren@williamgoren.com.

The scope of the Americans with Disabilities Act is so broad that there is scarcely an area of the law the ADA does not reach. There are ethical concerns to consider as well. What this article does is set forth a checklist that GPSolo small firm practitioners might find useful as they go about their law practices. Consider it issue spotting writ large. Also, keep in mind that this checklist is not exclusive. To date, I have over 220 different topics that I have discussed on my blog, Understanding the ADA. The checklist is also not one that would be used when dealing with an ADA case itself. For that, you can find ADA case specific checklists in my book, Understanding the ADA, Fourth Edition (ABA GPSolo 2013). This article breaks things down by selected subject areas, statute of limitations, and legal malpractice concerns.

Selected Subject Areas

This list is by no means exclusive.

1. Do you have a workforce that is predominately independent contractors? If so, do you take federal funds? If the answer to both questions is yes, you may have to deal with section 504 the Rehabilitation Act for your workers as well as with your operations and you will want to read:

a. 29 U.S.C. § 794.
b. For employment, this blog entry discussing the Fourth Circuit decision in Flynn v. Distinctive Home Care, Inc., which case can be found here.

2. Do you deal with indemnity agreements for ADA obligations? If so, you want to read:

a. This blog entry discussing the Rolf Jensen case of the Nevada Supreme Court, which holds that the ADA is a nondelegable duty, and therefore indemnification agreements violate public policy.

3. Do you have a website or represent a client with a website? Of course you do! You will want to read:

a. This blog entry discussing Harvard’s and MIT’s MOOCs in the suit brought by the National Association of the Deaf.
b. This blog entry discussing the ScribD settlement.

4. Do you represent higher education or individuals in higher education discriminated against on the basis of disability? If so, you want to read:

a. This blog entry discussing Argenyi v. Creighton University, and ADA auditing of a place of higher education.
b. This blog entry discussing how a college or university might go about establishing their essential eligibility requirements.
c. This blog entry discussing how the NCAA mental health best practices needs to be viewed in the context of the ADA.

5. Do you represent K-12 schools. If so, you need to know that you need to be aware of the Rehabilitation Act, IDEA, and the ADA. You will want to read:

a. This blog entry discussing K.M. v. Tustin Unified School District, which talks about why knowledge of all three laws is essential.

6. Are you confused about service dogs? If so, you want to read:

a. This blog entry discussing how a service dog can raise complicated legal issues and the case of Alboniga v. School Board of Broward County Florida. That blog entry has a link to several other blog entries discussing service dogs, including just what is a service dog; whether the service dog regulations are arbitrary; and the Texas approach to service dogs. Another blog entry, not linked in the Alboniga entry, deals with whether breed restrictions are permissible without violating the ADA.

7. Are you a litigator? If so, you want to read:

a. This blog entry discussing why a recent U.S. Supreme Court opinion is likely to lead to even more Batson challenges exercised on behalf of persons with disabilities.
b. This blog entry discussing why Tennessee v. Lane demands that Batson challenges are available to be exercised on behalf of persons with disabilities.
c. This blog entry discussing the case of Prakel v. State of Indiana, involving inaccessibility of the courts to persons with disabilities and how a court system might be successfully sued for that problem.

8. Are you confused about what is an essential function of the job? If so, this blog entry discussing Stephenson v. Pfizer, Inc., which talks about whether driving might be an essential function of the job, should be helpful.

9. Are you confused about when to reassign a person no longer qualified for their current job but could do other jobs within the company? If so, start with this blog entry discussing EEOC v. United Airlines.

You also want to read this recently issued resource document from the EEOC, Employer-Provided Leave and the Americans with Disabilities Act. My blog entry discussing this resource document can also be found here.

10. Are you a workers compensation or personal injury attorney? If so, you will want to read:

a. This blog entry discussing the case of Powers v. NSF Holland and why 100% return to work policies are dead.
b. This blog entry discussing the case of Val D’Aosta v. Cross and how a personal injury attorney might consider using the ADA architectural guidelines as a basis for negligence per se claim.

Statute of Limitations

1. General rule: Your jurisdiction’s personal injury statute of limitations, but it may be your jurisdiction’s disability discrimination statute of limitations.

a.  Only way to know is to do legal research.

2. Depending on the facts of the case, you might be able to argue for a four-year federal statute of limitations per this blog entry.

Legal Malpractice

1. Principles of legal malpractice for transactional work and mitigation work are pretty much blackletter, but you do want to check out your particular jurisdiction. You might start with this case: Union Planters Bank, N.A. v. Thompson Coburn LLP, 935 N.E.2d 998 (Ill. App. Ct. 2010).

a. Causation
    i. Transactional: had the undisclosed risk been known, he or she would not have accepted the risk and consented to the recommended course of action.

                (1) Legal malpractice risks

        (a) Judicial estoppel as discussed in this blog entry (especially so, for those working in the SSDI, ERISA, and labor and employment fields).
        (b) Indemnification agreements and not structuring them as reimbursement agreements.
        (c) Defense attorney insisting on a full return to work.
        (d) Underestimating ADA’s complexity, scope, breadth, and its overlap/differences with a myriad of other laws.
   ii. Litigation: but for the negligence of the litigator, the litigant would have prevailed.
        (1) Legal malpractice risks for case in litigation very small (ADA cases have too many moving parts), but risk in litigation could well include:
            (a) Alleging the major life activity substantially limited is working when pleading that the person is a person with a disability (to have a disability under the ADA, you must have a physical or mental impairment that substantially limits one or more major life activities).
            (b) Judicial estoppel (plaintiff attorney not cautioning client about filing for SSDI while ADA case is pending or defense attorney not inquiring about an SSDI filing).
            (c) Underestimating ADA’s complexity, scope, breadth, and its overlap/differences with a myriad of other laws.


 

 

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Understanding the Americans with Disabilities Act, Fourth Edition

Understanding the Americans with Disabilities Act, 4th Edition

By William D. Goren

This new edition of Understanding the ADA delves deeper into many of the complex topics of disability claims. The updates offer expanded guidance on remedies if the law is violated; advice on when you have a right to sue; the statute of limitations for ADA claims; when a complaint will survive a motion to dismiss; and whether a class-action is a viable thing to pursue. There are new areas of discussion regarding standing, when a complaint is sufficient, statute of limitations, and mixed-motive jury instructions, and additional information on disparate treatment cases, class actions, jury selection, and Batson challenges.

Expanded and new topics include:

  • ADA as it relates to sports including the Office of Civil Rights guidance on § 504 of the Rehabilitation Act
  • Utilizing negligence and negligence per se actions as an alternative to title III claims
  • Highly detailed chapter on remedies and procedural issues
  • Improved checklists and litigation forms.

ISBN: 978-1-62722-274-7
Product Code: 5150465
2013, 354 pages, 6 x 9, Paperback

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