NEWBIE NEEDS HELP(disscrimination?)

[Guest guest]

Hi Toni

Just out of curiosty could you give me some examples of other meds that are

injected and that DOT's rule would apply to.

Thanks

[Guest guest]

My issue is that I believe this law 391.41 (43) D.O.T. went into effect in

March of 1996 (can anyone confirm or deny this) and I was hired for the

driving position in September of 1996 up until just last week.

Also when I went for my D.O.T. physical in 1997 they APPROVED ME for a year

(usually its every 2 years) but because of my diabetes they only gave me 1

year.

Did the company hire me knowing that this could be an issue?

I can almost live with the fact of not driving for the company but to give

me a demotion/pay decrease!

All I want is to be re-instated back to my rate of pay and returned to my

previous " grade " .

Maybe I should look into the EDD end of it as opposed to the

" discrimination " side of it?

Comments / questions?

Keep em' coming!

wwotr

================================================

Re: NEWBIE NEEDS HELP(disscrimination?)

>From: RevJSutter@...

>

>In a message dated 7/11/1999 11:18:49 PM Eastern Daylight Time,

>wwotr@... writes:

>

><< Anotherwords I'm getting a demotion and cut in pay because I'm

> an INSULIN INJECTING diabetic!

> I am looking into legal consultations starting tomorrow.But in the

meantime

> has anyone on the list had (or know someone who) has had a similar

> situation? >>

>

>

>,

>

> I hate to be the bearer of bad news, but you need to know. I have

>been a very active advocate for compliance with disability rights' laws for

>many years now, so I constantly monitor news on the subject.

>

> Within the last couple of weeks, the US Supreme Court ruled on a few

>ADA issues (Americans with Disabilities Act). One of the rulings stated

that

>if a person with disabilities works for a company where DOT approval is

>required, and DOT would not approve the person because of their own rules,

>then if that person is demoted at his job, or denied the opportunity to

drive

>in connection with his job, it is NOT a violation of the ADA.

>

> Personally, I can follow their reasoning, but I do not agree with

>their decision. If you want more information, I can send you a Web site

that

>reports the SC decisions.

>

> Sorry I couldn't be of more help, or bring good news.

>

>Jim

>

>---------------------------

[Guest guest]

http://frwebgate4.access.gpo.gov/cgi-bin/waisgate.cgi?WAISdocID=671816039+11

+0+0 & WAISaction=retrieve

The link below is REALLY one you want as it mentions a YEARLY medical

checkup and being in control of your diabetes. You would need to test you

BG at least once every four hours, and also give your employer a copy of the

report from your Endo. Also must carry glucose with you.

http://frwebgate4.access.gpo.gov/cgi-bin/waisgate.cgi?WAISdocID=671816039+15

+0+0 & WAISaction=retrieve

I went to http://www.access.gpo.gov/nara/cfr/index.html and searched for

diabetes. There were 120 matches.

[Guest guest]

In a message dated 7/12/1999 12:10:42 AM Eastern Daylight Time,

wwotr@... writes:

<< My contention is that although it may be a " blanket " law you've still got

the fact that your discriminating against a person because he " injects " his

drugs instead of orally.

(that the way I see it) >>

ARGH! People, please! As much as I think our friend here has been the

victim of discrimination, the recent US Supreme Court decision says it isn't

discrimination if a trucking company refuses to let a person drive when they

cannot meet the DOT requirements. When the SC speaks, it overrides ALL other

laws on the subject, including federal and state laws and local ordinances.

Jim

[Guest guest]

I have no idea! That was the rule and they had to adhere! I'm fairly sure

that the wording was that way because *if* any drug came along, past, present

or future it would be covered. You know, or maybe you don't, that is why the

Texas constitution is so long! Each law is specifically stated in language

that applies only to that instance, sooo every time anything is changed, an

ammendment to the constitution must be passed in order to make the change. The

U.S. Constitution, on the other hand, is written in general terms to allow for

interpretation by the courts! This is MHO! Toni

VPolzin@... wrote:

> From: VPolzin@...

>

> Hi Toni

> Just out of curiosty could you give me some examples of other meds that are

> injected and that DOT's rule would apply to.

>

> Thanks

>

> ---------------------------

[Guest guest]

In a message dated 7/12/1999 1:34:32 PM Eastern Daylight Time,

onkelly@... writes:

<< Au Contraire (or something like it) The Supreme Court was only

interpreting one

particular Act ofCongress which was the subject of the lawsuit. I don't

remember

the title of the legislation. The decision will not affect any state laws on

the

subject that are applicable and that are interpreted differently by the

particular state court involved.

>>

The Act of Congress was the Americans with Disabilities Act, which governs

treatment of persons with disabilities, and the SC made three rulings, in

three cases. The decisions do not affect state laws, that is true, but the

decisions do, in effect, " strike down " certain crucial portions of the ADA.

In one of the three cases, the justuces made a decision in a case almost

identical to the gentleman who asked the truck driving question here. In

that case, the SC ruled that DOT guidelines govern the ability of someone to

drive a truck, and when an employer says " You cannot drive because you cannot

pass the DOT requirements " , it is NOT a violation of the ADA.

I will look up the specific case decision and post a link to it here for the

group.

There is a lot of consternation in the Disability Rights community, because

the justices made MAJOR changes in the ADA, in one case ruling specifically

in opposition to some very clear wording in the ADA about the definition of

disabilities. It took persons with disabilities 224 years to get their civil

rights, and it has only taken 9 years for the SC to yank them away.

I'll be back with the DOT case decision...

Jim

[Guest guest]

Au Contraire (or something like it) The Supreme Court was only interpreting one

particular Act ofCongress which was the subject of the lawsuit. I don't remember

the title of the legislation. The decision will not affect any state laws on the

subject that are applicable and that are interpreted differently by the

particular state court involved.

RevJSutter@... wrote:

> From: RevJSutter@...

>

> In a message dated 7/12/1999 12:10:42 AM Eastern Daylight Time,

> wwotr@... writes:

>

> << My contention is that although it may be a " blanket " law you've still got

> the fact that your discriminating against a person because he " injects " his

> drugs instead of orally.

> (that the way I see it) >>

>

> ARGH! People, please! As much as I think our friend here has been the

> victim of discrimination, the recent US Supreme Court decision says it isn't

> discrimination if a trucking company refuses to let a person drive when they

> cannot meet the DOT requirements. When the SC speaks, it overrides ALL other

> laws on the subject, including federal and state laws and local ordinances.

>

> Jim

>

> ---------------------------

[Guest guest]

So which President nominated these Supreme Court Justices?

[Guest guest]

OK, here are summaries of some of last month's US Supreme Court cases

affecting the ADA. Also included are the Web site addresses, if you wish to

read the rather long transcript of the actual decisions.

This is a long read, but it is critical to our lives as persons with

disabilities.

Jim

* Federal safety regulations and the disabled employee -

Albertsons, Inc. v. Kirkingburg (June 22, 1999)

Delivery driver with seriously impaired vision claimed that

ADA required an employer to justify as a business necessity its

decision to enforce DOT safety regulations and terminate his

employment as driver. The Court ruled that an employer who

requires that an employee meet a federal safety regulation

does not have to justify enforcing the regulation even though

its standard may be waived experimentally in an individual

case.

===============================================================

ALBERTSONS, INC. v. KIRKINGBURG (98-591)

Web-accessible at:

http://supct.law.cornell.edu/supct/html/98-591.ZS.html

Argued April 28, 1999 -- Decided June 22, 1999

Opinion author: Souter

===============================================================

Before beginning a truckdriver's job with petitioner,

Albertsons, Inc., in 1990, respondent, Kirkingburg, was

examined to see if he met the Department of Transportation's

basic vision standards for commercial truckdrivers, which

require corrected distant visual acuity of at least 20/40 in

each eye and distant binocular acuity of at least 20/40.

Although he has amblyopia, an uncorrectable condition that

leaves him with 20/200 vision in his left eye and thus

effectively monocular vision, the doctor erroneously certified

that he met the DOT standards. When his vision was correctly

assessed at a 1992 physical, he was told that he had to get a

waiver of the DOT standards under a waiver program begun that

year. Albertsons, however, fired him for failing to meet the

basic DOT vision standards and refused to rehire him after he

received a waiver. Kirkingburg sued Albertsons, claiming that

firing him violated the Americans with Disabilities Act of

1990. In granting summary judgment for Albertsons, the

District Court found that Kirkingburg was not qualified without

an accommodation because he could not meet the basic DOT

standards and that the waiver program did not alter those

standards. The Ninth Circuit reversed, finding that

Kirkingburg had established a disability under the Act by

demonstrating that the manner in which he sees differs

significantly from the manner in which most people see; that

although the ADA allowed Albertsons to rely on Government

regulations in setting a job-related vision standard,

Albertsons could not use compliance with the DOT regulations to

justify its requirement because the waiver program was a

legitimate part of the DOT's regulatory scheme; and that

although Albertsons could set a vision standard different from

the DOT's, it had to justify its independent standard and could

not do so here.

Held:

1. The ADA requires monocular individuals, like others

claiming the Act's protection, to prove a disability by

offering evidence that the extent of the limitation on a major

life activity caused by their impairment is substantial. The

Ninth Circuit made three missteps in determining that

Kirkingburg's amblyopia meets the ADA's first definition of

disability, i.e., a physical or mental impairment that

" substantially limits " a major life activity, 42 U.S.C.

sect. 12101(2)(A). First, although it relied on an Equal

Employment Opportunity Commission regulation that defines

" substantially limits " as requiring a " significant

restrict[ion] " in an individual's manner of performing a major

life activity, see 29 CFR sect. 1630.2(j)(ii), the court

actually found that there was merely a significant " difference "

between the manner in which Kirkingburg sees and the manner in

which most people see. By transforming " significant

restriction " into " difference, " the court undercut the

fundamental statutory requirement that only impairments that

substantially limit the ability to perform a major life

activity constitute disabilities. Second, the court appeared

to suggest that it need not take account of a monocular

individual's ability to compensate for the impairment, even

though it acknowledged that Kirkingburg's brain had

subconsciously done just that. Mitigating measures, however,

must be taken into account in judging whether an individual has

a disability, Sutton v. United Airlines, Inc., ante, at ___,

whether the measures taken are with artificial aids, like

medications and devices, or with the body's own systems.

Finally, the Ninth Circuit did not pay much heed to the

statutory obligation to determine a disability's existence on a

case-by-case basis. See 42 U.S.C. sect. 12101(2). Some

impairments may invariably cause a substantial limitation of a

major life activity, but monocularity is not one of them, for

that category embraces a group whose members vary by, e.g., the

degree of visual acuity in the weaker eye, the extent of their

compensating adjustments, and the ultimate scope of the

restrictions on their visual abilities. Pp. 6-11.

2. An employer who requires as a job qualification that

an employee meet an otherwise applicable federal safety

regulation does not have to justify enforcing the regulation

solely because its standard may be waived experimentally in an

individual case. Pp. 11-22.

(a) Albertsons' job qualification was not of its own

devising, but was the visual acuity standard of the Federal

Motor r Safety Regulations, and is binding on Albertsons,

see 49 CFR sect. 391.11. The validity of these regulations is

unchallenged, they have the force of law, and they contain no

qualifying language about individualized determinations. Were

it not for the waiver program, there would be no basis for

questioning Albertsons' decision, and right, to follow the

regulations. Pp. 11-14.

( The regulations establishing the waiver program

did not modify the basic visual acuity standards in a way that

disentitles an employer like Albertsons to insist on the basic

standards. One might assume that the general regulatory

standard and the regulatory waiver standard ought to be

accorded equal substantive significance, but that is not the

case here. In setting the basic standards, the Federal Highway

Administration, the DOT agency responsible for overseeing the

motor carrier safety regulations, made a considered

determination about the visual acuity level needed for safe

operation of commercial motor vehicles in interstate commerce.

In contrast, the regulatory record made it plain that the

waiver program at issue in this case was simply an experiment

proposed as a means of obtaining data, resting on a hypothesis

whose confirmation or refutation would provide a factual basis

for possibly relaxing existing standards. Pp. 15-20.

© The ADA should not be read to require an

employer to defend its decision not to participate in such an

experiment. It is simply not credible that Congress enacted

the ADA with the understanding that employers choosing to

respect the Government's visual acuity regulation in the face

of an experimental waiver might be burdened with an obligation

to defend the regulation's application according to its own

terms. Pp. 21-22.

143 F.3d 1228, reversed.

Souter, J., delivered the opinion for a unanimous Court

with respect to Parts I and III, and the opinion of the Court

with respect to Part II, in which Rehnquist, C. J., and

O'Connor, Scalia, Kennedy, , and Ginsburg, JJ., joined.

, J., filed a concurring opinion.

===============================================================

MURPHY v. UNITED PARCEL SERVICE, INC. (97-1992)

Web-accessible at:

http://supct.law.cornell.edu/supct/html/97-1992.ZS.html

Argued April 27, 1999 -- Decided June 22, 1999

Opinion author: O'Connor

===============================================================

Respondent United Parcel Service, Inc. (UPS), hired petitioner

as a mechanic, a position that required him to drive commercial

vehicles. To drive, he had to satisfy certain Department of

Transportation (DOT) health certification requirements,

including having " no current clinical diagnosis of high blood

pressure likely to interfere with his/her ability to operate a

commercial vehicle safely. " 49 CFR sect. 391.41((6).

Despite petitioner's high blood pressure, he was erroneously

granted certification and commenced work. After the error was

discovered, respondent fired him on the belief that his blood

pressure exceeded the DOT's requirements. Petitioner brought

suit under Title I of the Americans with Disabilities Act of

1990 (ADA), the District Court granted respondent summary

judgment, and the Tenth Circuit affirmed. Citing its decision

in Sutton v. United Air Lines, Inc., 130 F.3d 893, 902, aff'd,

ante, p. ___, that an individual claiming a disability under

the ADA should be assessed with regard to any mitigating or

corrective measures employed, the Court of Appeals held that

petitioner's hypertension is not a disability because his

doctor testified that when medicated, petitioner functions

normally in everyday activities. The court also affirmed the

District Court's determi-nation that petitioner is not

" regarded as " disabled under the ADA,explaining that respondent

did not terminate him on an unsubstantiated fear that he would

suffer a heart attack or stroke, but because his blood pressure

exceeded the DOT's requirements for commercial vehicle drivers.

Held:

1. Under the ADA, the determination whether petitioner's

impairment " substantially limits " one or more major life

activities is made with reference to the mitigating measures he

employs. Sutton, ante, p. ___. The Tenth Circuit concluded

that, when medicated, petitioner's high blood pressure does not

substantially limit him in any major life activity. Because

the question whether petitioner is disabled when taking

medication is not before this Court, there is no occasion here

to consider whether he is " disabled " due to limitations that

persist despite his medication or the negative side effects of

his medication. P. 4.

2. Petitioner is not " regarded as " disabled because of

his high blood pressure. Under Sutton, ante, at ___, a person

is " regarded as " disabled within the ADA's meaning if, among

other things, a covered entity mistakenly believes that the

person's actual, nonlimiting impairment substantially limits

one or more major life activities. Here, respondent argues

that it does not regard petitioner as substantially limited in

the major life activity of working, but, rather, regards him as

unqualified to work as a UPS mechanic because he is unable to

obtain DOT health certification. When referring to the major

life activity of working, the Equal Employment Opportunity

Commission (EEOC) defines " substantially limits " as

" significantly restricted in the ability to perform either a

class of jobs or a broad range of jobs in various classes as

compared to the average person having comparable training,

skills and abilities. " 29 CFR sect. 1630(j)(3)(i). Thus, one

must be regarded as precluded from more than a particular job.

Assuming without deciding that the EEOC regulations are valid,

the Court concludes that the evidence that petitioner is

regarded as unable to meet the DOT regulations is not

sufficient to create a genuine issue of material fact as to

whether he is regarded as unable to perform a class of jobs

utilizing his skills. At most, petitioner has shown that he is

regarded as unable to perform the job of mechanic only when

that job requires driving a commercial motor vehicle--a

specific type of vehicle used on a highway in interstate

commerce. He has put forward no evidence that he is regarded

as unable to perform any mechanic job that does not call for

driving a commercial motor vehicle and thus does not require

DOT certification. Indeed, it is undisputed that he is

generally employable as a mechanic, and there is uncontroverted

evidence that he could perform a number of mechanic jobs.

Consequently, petitioner has failed to show that he is regarded

as unable to perform a class of jobs. Rather, the undisputed

record evidence demonstrates that petitioner is, at most,

regarded as unable to perform only a particular job. This is

insufficient, as a matter of law, to prove that petitioner is

regarded as substantially limited in the major life activity of

working. Pp. 4-8.

141 F.3d 1185, affirmed. O'Connor, J., delivered the

opinion of the Court, in which Rehnquist, C. J., and Scalia,

Kennedy, Souter, , and Ginsburg, JJ., joined. s,

J., filed a dissenting opinion, in which Breyer, J., joined.

[Guest guest]

Here is the disabled community's reaction to the USSC decisions on ADA cases.

NCD Issues Reaction to Supreme Court Ruling on Disability

WASHINGTON, June 29 /PRNewswire/ -- The National Council on Disability

submitted the following in reaction to the U.S. Supreme Court's ruling on

their interpretation of the definition of disability. It was written by

NCD's general counsel and director of policy Andy Imparato.

If you publish this article, please credit Mr. Imparato and the National

Council on Disability.

Toward an Inclusive Definition of Disability

By J. Imparato

General Counsel and Director of Policy

National Council on Disability

June 28, 1999

As an attorney who has spent my career working to promote policies and laws

that expand opportunities for the 54 million Americans with disabilities, I

am deeply concerned that the U.S. Supreme Court totally missed the mark last

week in three cases construing the definition of " disability " in the

Americans with Disabilities Act (ADA). The Supreme Court has left me and

millions of other Americans with significant mental or physical impairments

unprotected against egregious discrimination.

The three cases involved people with poor uncorrected vision, monocular

vision, and hypertension who were challenging discriminatory employer

policies that unfairly excluded them based on their impairments. In deciding

that these people fall outside the civil rights protections of ADA because

their conditions are correctable, our highest court has left many people with

treatable conditions like epilepsy, diabetes, and, in my case, bipolar

disorder, outside of the law's protection as well. Anyone who is functioning

well with their disability is now at risk of losing civil rights protections

as a result of the Supreme Court's " miserly " construction, to use Justice

s' characterization in his eloquent dissent.

People with hidden disabilities often are unable to predict how an employer,

coworker, friend, or colleague will react when they learn of the disability.

In my case, I have had a wide range of experiences when I self- identify as a

person with bipolar disorder or manic-depressive illness. Some people assume

that it is something I had in the past and that I am " better. " Some worry

that I might " go postal " and treat me with kid gloves. One interviewer

raised an unfounded concern about whether I would know how to conduct myself

appropriately at staff meetings.

My own experience confirms for me that fears, myths, and stereotypes about

people with disabilities are alive and well in the United States. Congress

enacted ADA in 1990 to address this country's sad history of excluding,

paternalistic, degrading treatment of our citizens with disabilities. In its

role of advisor to the President and the Congress on public policy issues

affecting people with disabilities, my employer, the National Council on

Disability (NCD), drafted ADA to address the many forms of discrimination

that occur for people with a wide variety of disabilities.

One of the core findings in ADA is that " disability is a natural part of the

human experience. " This is a powerful statement. " Disability " should not be

interpreted by the Supreme Court to exclude the many people whose conditions

in their natural state result in significant impairments in functioning but

who can function well with medication, assistive devices, or other mitigating

measures. The people who would be left out nonetheless will continue to

encounter bigotry and attitudinal barriers when we are turned down for jobs

or are passed over for promotions.

ADA is about equal opportunity, full participation, equal access. It is not

about hand-outs or special privileges for a select few. An inclusive

definition of disability means extending a good thing -- fairness -- to more

people. A narrow definition of disability for ADA means that civil rights

will be " doled out " to the " deserving few. "

Under the decisions last week, people bringing ADA claims will need to

emphasize the negative about their impairment and how it affects them, as if

they were applying for disability retirement benefits. The evidence they

submit to demonstrate their disability can and will be used against them when

they seek to demonstrate their qualifications for the position they are

seeking. This puts people in a Catch-22 situation that Congress never

intended.

When Congress defined disability in ADA, they intentionally used the

inclusive, flexible definition that has been in place for many years under

the Rehabilitation Act. The ADA definition includes not just people with

physical or mental impairments that substantially limit at least one major

life activity, but also people with a history of such impairments, and people

who are regarded by others as having such impairments.

If Congress wanted to limit coverage to people in wheelchairs, blind people,

and deaf people, they certainly could have. Instead, Congress followed the

advice of NCD and others and incorporated an inclusive definition of the

protected class that would reach the many and varied ways that fears, myths,

and stereotypes come into play to unfairly limit people based on their

physical or mental conditions as opposed to their work experience and proven

abilities.

ADA should be read to protect anyone who is treated unfairly because of their

physical or mental impairment. Because the Supreme Court decided otherwise,

equal justice for all now rings hollow for millions of Americans with

disabilities.

SOURCE National Council on Disability

CO: National Council on Disability; U.S. Supreme Court

ST: District of Columbia

IN:

SU:

06/29/99 05:20 EDT http://www.prnewswire.com

[Guest guest]

In a message dated 7/12/1999 5:39:17 PM Eastern Daylight Time,

VPolzin@... writes:

<< So which President nominated these Supreme Court Justices?

>>

I think most of them are holdovers from the Reagan administration, a couple

of them from Bush. This is a surprising set of decisions, as the justices

have previously ruled in favor of civil rights cases when they were clearly

written by Congress. In these cases, it seems as though the SC is saying

" Well, Congress very clearly wrote the definition of disabilities to be this,

but they didn't really mean it that way, they meant it the way we (the SC)

are saying they meant it. "

I'd like to see every one of those justices in a wheelchair trying to go into

a store with no curb cuts and a turnstile.

Jim