[blindlaw] Text of a pending complaint

[Kathleen Hagen]

Hi Angie,  I wasn't suggesting that you agreed with the decision.  I just 
take any opportunity, even four years later to rail about the injustice of 
the decision.
Kathy
----- Original Message ----- 
From: "Angie Matney" <angie at mpmail.net>
To: "NFBnet Blind Law Mailing List" <blindlaw at nfbnet.org>
Sent: Wednesday, October 25, 2006 10:54 PM
Subject: Re: [blindlaw] Text of a pending complaint


> Hi Kathy,
>
> Thanks for this analysis.
>
> I didn't mean my comments to imply that I agree with the decision in 
> Echazabal (I don't). I think that result was easier for the courts to 
> reach than one involving a blind person in a hotel room on an upper floor.
>
> Angie
>
>
> On Wed, 25 Oct 2006 21:15:16 -0500, Kathleen Hagen wrote:
>
>>Well I wasn't going to exorcise myself, but since Angie brought up the
>>Chevron case, I do have to respond.
>
>>I made it a point to follow the whole path of this case because I often
>>write articles about the Supreme Court ADA decisions for a local paper for
>>people with disabilities:  Access Press.
>
>>In this case, a man worked as a maintenance worker.  Chevron contracted 
>>that
>>work out to a separate firm, and the guy held the job for 20 years.  Then,
>>Chevron decided to hire internally for jobs, including this man's job. . 
>>He
>>was sent for a medical exam routinely after being hired pending the 
>>result.
>>He learned that he had asymptomatic Hepatitis C.  This means that he had 
>>no
>>symptoms at all.  Chevron decided that it would be a direct threat to his
>>health and safety, and a workers comp. liability to them, if they allowed
>>him to continue working in that position.  So they didn't give him the 
>>job.
>>He could have returned to a contract maintenance job-a similar one to the
>>one he had already held for 20 years, but Chevron ordered the contractor 
>>not
>>to hire him as well.
>
>>Now here came the rub, and the thing that makes me so mad.  The ADA
>>legislation specifically was written to provide a direct threat defense 
>>only
>>if the worker would be a direct threat to others.  Disability groups 
>>worked
>>long and hard to get this language into the ADA because of our 
>>overwhelming
>>experiences that employers make decisions regarding our safety without 
>>real
>>information about what would be safe or unsafe, but on their own
>>perceptions.  The EEOC, when it promulgated its regulations used the 
>>boiler
>>plate language already inserted into Section 504 of the Rehabilitation Act
>>which provided employers a direct threat defense for safety issues to 
>>"self"
>>or others.  This was in direct contradiction to the ADA language.  The 
>>EEOC
>>found against the plaintiff based on their regulations.
>
>>Plaintiff sued in District court and the court found in favor of the
>>Defendant on the safety issue.  The plaintiff then went to the 9th 
>>Circuit,
>>(I think) and filed an appeal.  The appeals court addressed this case 
>>simply
>>by looking at whether or not the EEOC could insert in its regulations
>>language that went beyond what was available in the ADA.  The Supreme 
>>Court
>>had found against plaintiffs in other cases where EEOC was thought to be
>>"over-reaching itself" by proposing and promulgating regulations that went
>>beyond the strict language of the ADA.  The Appeals court reversed in 
>>favor
>>of the Plaintiff.  But the Supreme Court, despite its previous rulings,
>>decided that this time it should "consider the extra expertise the EEOC
>>brought to such issues" and upheld the regulation which went beyond the 
>>ADA.
>
>>Yes, there could be a difference of opinion as to whether or not a man 
>>with
>>Hepatitis C, asymptomatic or not, should be working with solvents.  But he
>>had done so for 20 years, was still asymptomatic, and his own doctor said
>>that the solvents he worked with proved no more harmful to him than to
>>others.  Of course the solvents are probably harmful to everyone.   My 
>>added
>>commentary.
>
>>My final view of the Supreme Court's decision in that and in other ADA 
>>cases
>>has come to be a very jaundiced one, made more so by recent appointments 
>>to
>>the Court.  I believed in law school 20 years ago, and still believe,
>>sacreligious as it sounds, that many judges and justices come to a case 
>>with
>>a pretty good idea already what they think and ask their clerks to find
>>research to back it up.  I won't go so far as to say judges tell their
>>clerks to disregard other material, but I do think the natural bias of 
>>many
>>of the Supreme Court justices is in favor of business and, particularly
>>where safety issues are considered, against giving consideration to 
>>persons
>>with disabilities.  So there.  Now i have it off my chest.
>>Kathy
>
>>----- Original Message ----- 
>>From: "Angie Matney" <angie at mpmail.net>
>>To: "NFBnet Blind Law Mailing List" <blindlaw at nfbnet.org>
>>Sent: Wednesday, October 25, 2006 6:23 PM
>>Subject: Re: [blindlaw] Text of a pending complaint
>
>
>>> Steve asked:
>>>
>>>>Couldn't a hotel claim that a blind person must accept a given room, on
>>>>the first floor for example, for safety reasons countering our right to
>>>>refuse?  Has that ever
>>>>been tested?
>>>
>>> It probably has happened somewhere. That is similar to the airline
>>> personnel refusing to tell me which way to go because I might hurt 
>>> myself
>>> if I walked 30 feet on my own. (grin) I don't know of cases about this,
>>> but it is interesting. Having said that, the case I referred
>>> to was much more clear-cut. The person had a liver condition that was
>>> going to be exacerbated by the chemicals where he wanted to work. I 
>>> think
>>> a hotel would have a hard time proving in court that they *had* to give 
>>> a
>>> blind person a room on the first floor for
>>> safety reasons. All of that is about a conjectured risk, whereas this 
>>> case
>>> involved a much higher probability of danger.
>>>
>>> Just my first-year law student opinion, not worth much at all. (grin)
>>>
>>> Angie
>>>
>>>
>>>
>>>
>>>
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