The Americans with Disabilities Act: a decision tree for social services administrators.
Although many books and articles have been published about the ADA, few have specifically targeted the social services arena. This article presents important issues in ADA-related decision making in the form of a decision tree. Because the ADA is an extensive policy that includes several fairly complex elements, a sequential view of the issues that may be included in the decision-making process may be the clearest and most comprehensive way to assess the validity of claims. This decision tree includes nine steps. The burden of proof falls on the employee for seven of these steps and on the employer for two. Before discussing the decision tree, however, it is important to provide a brief overview of the act.
The ADA was passed in 1990 after a failed attempt two years earlier (Mayerson, 1993). The law was passed in large part because of increased self-advocacy on the part of individuals with disabilities. Many disability rights groups had come, over the preceding decades, to repudiate the medical model of disability and replace it with a minority group model. The former framework viewed people with disabilities largely as passive victims of their circumstances, many of whom were unable to succeed--or even make an attempt at success--in certain spheres of living because of the problems imposed by their physical or mental impairments. The minority group model, however, focused heavily on the barriers to success by institutions and the "non-disabled" community at large. These barriers were not just physical obstructions that limited mobility, but, as with other minority groups, included inaccurate and demeaning stereotypes and misconceptions, a tendency to focus on the person's disability as a "master status" serving to identify the person as deficient in an essential way, and prejudice based on fear or discomfort (Drimmer, 1993; Scotch, 2001; Shakespeare, 1994; Shapiro, 1993).
The act was informed by the Civil Rights Act of 1964 (P.L. 88-352) and the Rehabilitation Act of 1973 (P.L. 93-112). The latter policy protected people with disabilities from employment discrimination, but only covered offices and contractors of the federal government (Scotch, 2001). Lobbyists for small businesses formed the primary opposition to the ADA. They expressed concerns about a number of issues, including the potential cost of accommodations, the proposed definition of a disability, and coverage for HIV-positive people ("Sweeping Law for Rights of Disabled," 1990).
The policy included five sections, including Title I, the employment discrimination section; Title II, which prohibited discrimination in public or government services; Title III, which required accommodations in community services; Title IV, which provided for telecommunication accommodations; and Title V, which included miscellaneous provisions such as limitations to coverage for drug and alcohol addiction. The decision tree described in this article is related to the employment discrimination (Title I) component of the ADA.
AN ADA DECISION TREE
The claims process under the ADA presents well as a decision tree (Table 1) because it is characterized by discrete sequential steps. The consideration of claims by investigators and the discussion of cases in the court system are organized according to a sequential view of the ADA such as this. Employees stating a claim must first provide evidence that they have a disability under the ADA and that they are employees of covered businesses. They also must show that they are otherwise qualified to hold the position in question, or that the provision of reasonable accommodations will make them qualified. Often, the most difficult step for claimants is providing evidence that the adverse action (for example, dismissal, failure to hire, and so forth) they were subject to is related to the disability.
[TABLE 1 OMITTED]
If employees meet these requirements, the employer must show good cause for the adverse action. This includes either a valid rationale that is not related to the employee's disability or a rationale related to the disability that is acceptable under the ADA. If the employer cannot provide such a rationale, the only question that remains is whether the claimant followed appropriate procedural steps in filing an ADA claim.
Employee and Disability Status
The status of the person as an employee and as a disabled person under the ADA are the first issues that need to be considered in an employment discrimination claim. If the person does not fall under both of these categories, no other issues need to be considered, as an ADA employment discrimination claim would not apply. Although the status of a person as a covered employee under discrimination law is usually fairly clear, there are gray areas. Menkowitz v. Pottstown Memorial Med. Ctr. (1998), for example, was brought by a physician with staff privileges at a hospital who was suspended because of his attention deficit disorder. When he filed suit under the ADA, the court ruled that Menkowitz was an independent contractor rather than an employee. In social work questions may arise about the status of field practicum students as protected individuals. Because they are generally not employees, practicum students who feel that they have been discriminated against by an agency because of a disability might be able to file an ADA claim, but this would most likely be under the public accommodations (Title III) section of the act, rather than the employment (Tide I) component.
The ADA only provides protection for employees of businesses with 15 or more full-time employees, thus a person deemed to be an employee does not have a valid case if fewer than 15 people are employed by the organization. In some cases, however, state law in this and other areas of the ADA may provide a higher level of protection than the federal guidelines.
The individual's disability status is also not always obvious. All three disability definitions included in the ADA are subject to a degree of interpretation, and each definition has spawned its share of debate among experts. According to the technical assistance manual, published in 1992 by the Equal Employment Opportunity Commission (EEOC), a disabled person is an individual who has
* a physical or mental impairment that substantially limits one or more major life activities;
* a record of such an impairment; or
* is regarded as having an impairment. (p. I-9)
The "record of an impairment" definition was primarily included to protect people who have a history of or have been treated for a disability such as cancer and who could be subject to discrimination, especially in the provision of insurance coverage, by employers who assume that the condition may reappear. The "regarded as having an impairment" definition primarily relates to people with facial impairments and other such stigmatizing conditions that do not affect an area of major life functioning, but which could lead to discrimination (McAdams, Moussavi, & Klassen, 1992).
In addition to protecting people with disabilities, the ADA provides a degree of protection to those associated with people who have a disability. The spouses, parents, and adult children of disabled people may be subject to discrimination if the employer falsely believes that the burden of the relationship would increase absenteeism, harm employee productivity, or increase company insurance costs. In such "third-party" discrimination cases, however, the employer is not required to provide accommodations to the individual (O'Brien & Reynolds, 2003).
Employer Knowledge of Disability
If the individual in question falls under the ADA definition of both employee and disabled person, the next question to consider is whether the employer had knowledge of the person's disability. In this case, "employer" generally refers to the person or people responsible for precipitating the alleged discriminatory action. In the case of people with largely "invisible" disability conditions such as heart disease, diabetes, HIV, or epilepsy, the employee could work for months or even years without anyone in the work setting knowing about the condition. To qualify for protection under the ADA, the discriminatory action taken must relate to the disability condition. If the employer does not know of the condition in the first place, this connection obviously cannot be made.
Employees who have such invisible disabilities may face a dilemma when deciding whether to disclose their condition (Campbell, 1994). Such workers may feel that disclosure may subject them to discrimination. On the other hand, disclosure may be important if the person requires accommodations or is concerned that the condition would render him or her unable to fulfill essential functions of the job. If accommodations are required, the condition should be disclosed after the employer has made a conditional offer of employment.
Even if a disability condition is largely invisible, however, indicators of the condition might be visible. The habitual hand washing of a person with obsessive--compulsive disorder, the blank stare of a person with petit mal seizures, the tics of a person with Tourette's syndrome, and other manifestations of underlying disabilities may affect how the person is viewed and treated in the work environment. In some cases the employee may benefit by disclosing the condition, as it may help others accept the behaviors and make the employer accountable for upholding ADA standards in his or her treatment of the person. If the employer takes action against the employee not because of a known disability diagnosis, but because of indicators of a possible disability, the employee may have a case, but must provide evidence that the employer regarded him or her as disabled.
Employee as "Otherwise Qualified"
An applicant or employee with a disability must be considered "otherwise qualified" for the job in question to be qualified for ADA protection. The initial issue here is whether the person meets minimal job requirements and can engage in the essential or most important aspects of the job, with or without the provision of reasonable accommodations. For example, an applicant with a visual impairment who applies for a position requiring social work licensure must be licensed. If unlicensed, she is not qualified for the job, and her ability to perform essential job functions becomes a moot issue. Of course, if the reason for the person not being licensed relates to an inability on the part of the licensure authority to provide necessary accommodations, she may have a case against it under the public accommodations section of the ADA. Whether an applicant or employee is otherwise qualified for the position in question must be determined by the person's current level of functioning rather than presumptions about concerns that may arise in the future (Cole, Christ, & Light, 1995).
Suppose the person meets minimal requirements and can engage in those tasks most frequently performed in the job. The question then is whether the job components that the employee cannot fulfill because of a disability condition are essential. According to the EEOC, essential job functions are the elements of the job that are most critical to successfully carrying out the position or functions for which the position was developed. In addition, however, essential functions may include tasks that, even if they are not performed on a regular basis, are important for health or safety and if not carried out properly could have severe negative consequences for the business (EEOC, 1992). An overnight house parent in a group home, for example, may never have to assist his clients in quickly leaving the house in the event of a fire. He must, however, be capable of doing so should the need arise. Employers may require employees to complete medical or other tests to ensure that they can perform essential functions of the job, but must wait until after a conditional offer of employment has been made, ensure that tests are clearly linked to job skills, and require the tests for all applicants or employees for that position (Feldblum, 1991; Fielder, 1994).
In some cases the business may rearrange tasks among employees to accommodate for one employee's disability. One difficulty employers may encounter in such situations is maintaining confidentiality regarding the person's disability status, if it has not been disclosed to others (Pardeck, 1998). Coworkers may perceive that the employer is giving unfair preferential treatment to the covered worker, whereas, the employer, bound by confidentiality, may not be able to adequately explain the reason for the decisions (Solomon, 1992; Yang, 1993).
Reasonable Accommodations and Undue Hardship
Unlike most other employment discrimination legislation, the ADA requires the provision of reasonable accommodations that allow a person with a disability to perform a job. There is a precedent for the reasonable accommodations provision in the protection from religious discrimination that was included in the 1964 Civil Rights Act (P.L. 88-352). Courts have held that under the Civil Rights Act, businesses have an obligation to provide reasonable means of accommodating an employee's religious beliefs. Such revisions may include, for example, flexible schedules for employees who cannot work over religious holidays or Sabbaths (Cromwell, 1997; Maikovich & Brown, 1989).
Accommodations for employees with disabilities include revised work schedules or a leave of absence, restructuring of the work environment or job duties, the provision of physical assistance devices, or reassignment to another position in the organization (Neff, 1997). Accommodation requests must come from employees, and employers are not required to make accommodations before such a request (Feldblum, 1991). Although employees are to be afforded reasonable accommodations under the law, the specific accommodations requested by an employee need not be made available, so long as they are appropriate (Coil & Rice, 1994). In Nelson v. Ryan (1994), for example, the plaintiff, who had a visual impairment, requested paid leave to train a new guide dog. The employer, a New York State social services agency, allowed the accommodation, but only on an unpaid basis. The court considering this case found in favor of the agency. The method of accommodating a worker with a disability is to be the result of a negotiation process between the employee and the employer and not unilaterally imposed by the employer. Qualified workers may request revised work schedules or extended leave to receive treatment for a disability or fulfill rehabilitation requirements. In some cases even a transfer to a different work location may be considered a reasonable request. Such a transfer may be made, for example, when the new location would allow the employee to receive better medical treatment or when a change in climate would diminish the severity of a disability condition (Buckingham v. U.S., 1993).
When considering whether accommodations are reasonable, a primary factor is whether the accommodation causes undue hardship on the employer. According to Neff (1997), undue hardship is "an action requiring significant difficulty or expense, when considered in light of the factors set forth" (p. 118). The main issues that need to be considered when questioning whether a specific accommodation constitutes undue hardship include a reasonable assessment by a qualified individual of the cost of the accommodation, the size and resources (especially financial) of the business, and the potential impact of the accommodation on the business (Feldblum, 1991). Accommodations are more likely to be deemed reasonable if the company's assets are larger or accommodation costs are small.
Whether particular accommodations need to be provided also depends on the person's job. In Jovanovic v. In-Sink-Erator (2000), for example, the defendant, who was a tool and die maker with an asthmatic condition, was not allowed additional absences above those provided in company policies. Although this would have constituted a reasonable accommodation in most cases, the employer provided evidence that because of the specialized nature of the defendant's job and the difficulty of replacing him on a regular basis the refusal to allow the absences was allowable under the ADA.
Adverse Employment Action
Under the ADA, employment discrimination not only includes the refusal to hire and to discharge, but also other forms of discrimination, such as a reduction in work hours, the removal of job privileges, or refusal to promote the employee. Covered employees also may be subject to harassment in the workplace or punished for attempting to assert their rights (Coil & Rice, 1994). In the ADA, employment discrimination includes the refusal to provide or the removal of necessary accommodations, or changes in the person's job duties solely because the employer fears that the employee may harm customers or coworkers.
As noted earlier, an important issue in relation to employment decisions that adversely affect the employee with a disability is whether decisions are made unilaterally by the employer and forced on the worker or result from a good-faith negotiating process between the employer and the employee (Neff, 1997). Some people with AIDS, for example, may welcome or even request a reduced work schedule or change in job status. If such job alterations are imposed on them without their consent, however, they may constitute adverse actions. Such an imposed restriction may not be considered an adverse action when the employer can provide evidence that the change is necessary for the person to remain in the job, or that without it she or he can no longer perform essential job functions. Even in this case, however, the employer needs to make every effort to ensure an amicable reciprocal agreement.
Relationship of Adverse Employment Action to Disability Status
Perhaps the most difficult ADA requirement for a plaintiff to meet is convincing evidence that the adverse action against him or her was related to the disability condition. Certainly there are multiple reasons any employee may be subject to disciplinary actions in the workplace, and many employers are savvy about "covering" discriminatory actions through the creation of bogus, or "pretextual," rationales. In considering the possibility of a connection between adverse action and disability status, investigators consider such issues as the nature and timing of the employee's disclosure of the condition, the employer's reaction to the disclosure, and financial or other benefits the employer may gain from taking action against the person.
In many cases the defendant may argue that the cause of the adverse employment action was not the plaintiff's disability. As with other areas of employment discrimination, employers may be required to provide evidence, such as poor evaluations, past disciplinary action, or supervisor or coworker testimony, that supports claims of unacceptable performance. The term "pretext" is often used at this stage of a complaint. The courts view a pretextual action as an excuse that the employer is using to cover up the discriminatory rationale for adverse action. As noted, the timing of the adverse action is important in considering whether a rationale is pretextual. If an employee was fired shortly after disclosing her or his HIV-positive status to the employer, for example, investigators may believe that the employer's contention of nonproductivity as the basis for the action is pretextual. This presumption, again, could be overcome should the employer provide supportive evidence, such as poor evaluations, that predate the HIV disclosure.
It may be difficult for investigatory bodies to determine whether the given reason for the action is pretextual. Without a "smoking gun," such as a written statement by the employer confirming the discrimination, an ADA charge, even if valid, may he virtually impossible to prove to a sufficient degree. One example of a court being forced to decide if an adverse action was based on pretext was Rotter v. Brinker Restaurant Corp. (1999). The defendant was a food server who acknowledged he was HIV-positive, which in itself did not disqualify him for the position. His employer requested that he increase his workload, which the defendant refused to do. In this situation the key questions were whether such employees, because of worker shortages or other business necessities, were required on occasion to increase their workload, and whether being able to do this was an essential function of the job for which an accommodation could not be provided. If the answer to both questions was yes, and barring additional evidence that the defendant was treated disparately because of his HIV status, he probably would not win his claim.
Whether an employer's decision to discriminate is pretextual is especially difficult to prove at the hiring stage. Because employers tend to have liability concerns about hiring decisions, they often are purposefully vague about the rationales for such decisions. Employers can easily find alternative explanations for refusing to hire a person with a known or suspected disability. Indeed, it could be hypothesized that those who belong to a group of people vulnerable to employment discrimination may he subject to increased discrimination at the hiring stage because of such statutory protections. In other words, if employers believe that they are more vulnerable to a discrimination claim as a result of firing an employee rather than refusing to hire him or her in the first place, they may be less willing to hire the applicant.
EMPLOYER-DEFENDANT RESPONSES TO ADVERSE ACTION
If the employee has been subject to adverse action and can provide evidence that the employer both knew of the disability and that the adverse action may have been related to the condition, the burden of proof shifts from the person filing the claim to the employer. At this point the employer has five arguments that can be used to invalidate the ADA claim. The employer can provide evidence demonstrating that one of the stated arguments (for example, employer knowledge of disability condition) is not true; that the employer is not a covered entity under the ADA (for example, employs fewer than 15 workers); that there was a nonpretextual reason for the adverse action that was unrelated to the disability; that the adverse action was related to the disability, but was valid within the constructs of the ADA; or that the employee did not follow appropriate steps in filing an ADA claim.
Valid Disability-Related Rationales for Adverse Action
Under the ADA a covered employer has three valid defenses to taking action against an employee because of the person's disability. Two of these defenses, that the person is not otherwise qualified for the job in question and that the accommodations that would make the person qualified would place an undue hardship on the agency or business, are related to each other, and have been discussed earlier. The employer may argue, for example, that what the plaintiff has contended is a tangential component of the job is in fact an essential component, that the plaintiff has underestimated the cost or burden of accommodations, or that the estimate is accurate but constitutes an undue hardship.
The third defense is that the plaintiff poses a direct threat to himself or others because of the condition. A direct threat is a verifiable threat that the person poses to self or others in the work environment because of the disability. Employer fears or presumptions do not constitute a valid direct threat, and the employer is required to demonstrate that risk concerns are supported by objective medical or psychiatric evidence (Brierton, 1994; O'Brien & Maue, 2002).
Employees whose disability conditions pose a direct threat to the health or safety of themselves or others in their job may be subject to adverse action unless a reasonable accommodation can be provided to minimize the threat to an acceptable level based on EEOC guidelines. These regulations take into account the potential for harm and the severity of the harm that may result. In considering HIV, for example, the potential for harm is extremely low in most jobs, because HIV is only spread through blood-to-blood contact. Therefore most employees are protected under the ADA (Chalk v. U.S. Dist. Court Cent. Dist. of California, 1988; O'Brien & Koerkenmeier, 2001; School Board of Nassau County, FLA. v. Arline, 1987). Employees in a health setting where such contact is a reasonable possibility, however, may pose a direct threat, even if such contact is unlikely. Because of the severity of the harm that would result from transmission, they may be fired or transferred. Of course, the key question is what constitutes a "reasonable possibility" of infection.
An important direct threat issue for social work pertains to people with mental illness who may, at least in the minds of the employer, pose a threat. As Rubenstein (1993) noted, the ADA included a functional as opposed to diagnostic approach to people with mental disorders in the workforce. This means that employers are to focus not on the general psychiatric condition of a person and make blanket assumptions about the capability of such individuals to perform the job. Rather, specific behaviors related to the condition, especially as the individual in question has displayed them, need to be considered in relation to the essential components of the job. In EEOC v. Amego Inc. (1997), for example, an employee of a nonprofit agency held a position in which giving clients medications was an essential job component. Although she may have been able to do the job even though she had been diagnosed as clinically depressed, she had previously attempted to overdose on drugs on two occasions. The specific behaviors, rather than the diagnosis per se, made her a direct threat under the ADA. It is important to note that if a mental disorder does not substantially limit a person's ability to engage in major life activities, the person is not covered by the first definition prong of the ADA.
Direct threat is also an important issue for social work in its relationship to Tarasoff concerns. Since the 1976 Tarasoff v. Regents of the University of California ruling, social work employers have attempted to adequately balance their duty to serve potentially aggressive clients with their need to protect employees, other clients, and the general public. The direct threat component of the ADA is in line with the Tarasoff ruling in that it does not require social work agencies to hire employees or serve clients who pose a threat to others, so long as the decision is based on sound behavioral or scientific evidence.
EEOC Requirements for Filing a Claim
Although the requirement that the plaintiff follow the proper guidelines within the prescribed timelines in filing an ADA claim is presented here as the final question to be considered, in many legal cases it is considered first. If the plaintiff did not file the claim properly, no other issues matter. Investigators, mediators, and judges do not want to waste their time arguing about the merits of a claim when their decisions have no practical implications.
The primary requirement is that discrimination charges are made to the EEOC within 180 days of the date the alleged adverse action occurred. Charges include the names and addresses of both the person bringing the charge and the business and details of the alleged action, including dates and witness names. The EEOC is then to send the business named in the claim a notice of the charge within 10 days. EEOC investigators then examine evidence and interview witnesses, and, if they find evidence supporting the complaint, attempt to mediate the claim. If mediation is unsuccessful, the "EEOC will file suit or issue a 'right to sue' letter to the person who filed the charge" (EEOC, 1992, p. X-2).
The ADA has influenced social work agencies and professionals in multiple ways. Regardless of their level of involvement with people with disabilities, all agency administrators must be aware of the elements of Title I of the ADA. Rather than simply understanding the hoops one must jump through to abide by the policy, members of the profession should have greater awareness of and appreciation for people with disabilities. As Mackelprang and Salsgiver (1996) wrote, the social work "profession has not embraced the causes of people with disabilities as it has other oppressed groups" (p. 7). Although the ADA was characterized by a movement from a medical model of disability to a minority group model, the social work profession has too often been firmly rooted in the former. The ADA mandate to foster inclusion of people with disabilities will be met when we not only take the steps required to provide physical inclusion, but also repudiate the stereotyped images of disability that encouraged the isolation of group members in the first place.
Original manuscript received August 1, 2003
Accepted January 7, 2004
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Gerald V. O'Brien, PhD, is assistant professor, Department of Social Work, Southern Illinois University, Edwardsville, Edwardsville, IL 62026; e-mail: firstname.lastname@example.org.
Christina Ellegood, MSW, is a social worker, PedCare Inc., St. Louis. Correspondence concerning this article should be addressed to Dr. Gerald V. O'Brien.
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|Author:||O'Brien, Gerald V.; Ellegood, Christina|
|Date:||Jul 1, 2005|
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