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Disability Law



Disability Discrimination Law

Disability discrimination is wide spread. People with disabilities are frequently discriminated against or denied equal rights or funding. For example, according to a wheelchair accessibility expert, up to 95% of buildings in the USA would not pass a proper accessibility inspection. Wheelchair users are often denied access in bars, airplanes and other public places. People with service dogs are denied access to stores, buses and taxis. People with disabilities are often denied access to funding which for which they should qualify. I interviewed an experienced disability attorney, David Otto, about a variety of legal issues which effect wheelchair users, including issues of social security funding, accessibility and discrimination. For detailed information on accessibility, see this interview with an expert on wheelchair accessibility.

Social Security and Disability Insurance

Gene: A majority of disability claims are denied. According to an article in Bankrate.com "In 2006, only 32.1 percent of disabled workers applying for Social Security disability benefits were found to be entitled to an award". When you are filing for a social security claim, when should you hire a lawyer and when should you go it alone?

David: This is a difficult, or even impossible question for me to answer for the following reasons.

Each applicants situation, talents and abilities are different. Each applicants, disability will be different. The nature of a person's disability is a large factor in their ability to apply for social security on their own or require and attorney to assist them. Each applicants family and friend support is different and will be a factor in determining whether they should apply on their own or seek legal assistance.

Simply put, if a person feels confident and capable of applying on their own, perhaps with the help of friends and family, if they are tenacious and organized, read well and feel they can grasp the subtleties and complexities of the application process, it might, and I say might, be a good idea to apply on the own and thereby save themselves the considerable expense of hiring a lawyer to do it for them.

If a person feels they can express what needs to be expressed regarding the nature and extent of their disability, its affect on their lives and ability to earn a living, and convince the decision makers at social security of the righteousness of their position, it might, and I repeat might, be fine for them to apply on their own. If not, they should retain legal counsel - in my opinion.

Generally it is my advice in any matter which can have a lasting financial, and life changing affect on a person, and involves legal complexities, I recommend retaining a lawyer. The more serious and permanent the disability the more I would recommend a lawyer. But lawyers are expensive, however, in my experience, generally speaking, hiring a lawyer is one of the most cost effective 'purchases' that can be made. But again, each case is unique.

Gene: If you were looking for a lawyer to take on a social security claim case, what criteria would you look for? There are thousands of disability lawyers out there. Most probably have years of experience. How does one know which will have the best chance of winning approval?

David: Find a lawyer who specializes in this field, not just dabbles. I do a variety of cases and this is why I don't take the disability cases. A client is better served with a lawyer who has experience and also does almost exclusively this kind of law. Get a lawyer who is available by phone, who returns phone calls promptly, and who understands the nature of various disabilities. In the end, choose the lawyer with whom you feel most comfortable. Some non-lawyers, as well as many lawyers, may know the players at Social Security, ask the lawyer or non-lawyer, whether they do or not.

Gene: So, you think that a lawyer who specialises in social security claims is an important criteria. How important it is that you live near your social security lawyer? Will they ever need to travel on your behalf? Lets say that you live in an area where there are no "social security specialists". Would it be better to go with a lawyer who does not specialize in social security but who lives nearby? Or would you recommend a social security specialist who you may never be able to meet in person?

David: I would suggest using a lawyer you can meet and who lives nearby if possible. Usually the lawyer would have to travel only to go to an administrative court for an appeal hearing. Though and interview with social security is sometimes asked for and the lawyer might have to travel for that.

Gene: Is there any way to save any money with a social security lawyer? Can you negotiate lower fees?

David: It is possible to attempt and sometimes successfully so, to negotiate lower fees with lawyers of all kinds. It doesn't hurt to ask. Law is a competitive 'business' and profession. I would advise trying to negotiate fees, and even lining up more than one lawyer or firm, to see which offers the best fee structure.

Accessibility Laws and Disability Discrimination

Gene: There are a series of videos on You Tube which appear to show a man with a service dog being denied access by a bus company. For example, in these videos he is refused access by bus drivers: 

Based on these videos, do you believe that he has a case? If a person with a disability exeperiences denial of services such as seen on these videos, what should they do?

David: Based on those videos there is no doubt in my mind that there is a case. The next question is how much of a case and how to get it done. What should happen, to make the whole transit system, and others sit up and take notice, is a class action lawsuit, which would require a number of plaintiffs who have experienced the same or similar treatment from drivers.

If a person with a disability experiences this kind of discrimination, they should contact me by email using the contact form on my website. That kind of thing is just what I like to go after. If we had several different people reporting the same thing from different drivers, I would consider a lawsuit. Sometimes a letter and a phone call to the head honchos in these organizations will do something, sometimes not. Depends on the 'entity' and what reports I have from several plaintiffs.

The person or persons in the video, those with the service dog, handled it correctly with the driver. The whole transit system is failing to train the drivers.

Gene: But as I understand, the bus company is located in Los Angeles, California and you are located 4 hours away in Las Vegas, Nevada. Would you be able to litigate such a case?

David: We can litigate in any state in the country. Not all cases are perfect or good business choices for out of state litigation, but it is possible to do so, yes.

Note: According to ADA laws:"Businesses may ask if an animal is a service animal or ask what tasks the animal has been trained to perform, but cannot require special ID cards for the animal or ask about the person's disability". These drivers shown in these videos have:

  • Asked for special "service dog tags"
  • Denied access to the service dog and the dog's owner.

    Both of these acts are federal crimes. I have contacted Metro Transportation Company for a statement and Tom Horne from metro has confirmed that "Metro has identified the person who made the videos as Alexander Johnson. Mr. Johnson has recently filed governmental tort claims against Metro based on incidents depicted in the videos."

    Gene: A video showing possible disability discrimination has been uploaded to YouTube by Fred,a wheelchair user from the UK who visited a Manhatten night club:

     

    I contacted both Judith, the owner of the night club and Fred the wheelchair user and have received the statements below:

    Statement from Judith the owner of the club:

    The guest who joined us in a wheel chair was a very nice chap who attended the club several times that week, I think he was visiting from out of town.

    The club was very busy that week for a dance event happening in New York.

    The guest in the wheelchair was asked to use the part of the dance floor nearer the stage and not to block the general entrance to our main room.

    This advice was given to that guest and to others as a safety measure, we are always having to ask guests to “move into the room” not to block walk ways and the general entrance. We are also a restaurant and have servers carrying trays of glasses and hot plates of food.

    I was not present that night but have been informed by my staff that the guest in the wheelchair had been asked not to block the entrance or walk way but – along with other people – was asked to move further into the main room and actually dance on the dance floor area.

    I want you to know that SWING46 IN NO WAY DISCRIMINATES AGAINST ANYBODY!

    We are a peaceful, loving, “cool vibe” establishment here for the benefit and enjoyment of all our guests.

    We go to great lengths to ensure safety and satisfaction for all.

    It is my understanding that this particular guest had been asked several times to move further into the room – for his and for the safety of others.

    This guest was welcomed to join us as are any guests who use a wheelchair. Over the years we have had several guests come out to dance in their wheelchairs and in the last thirteen years we have never had any problems or complaints.

    The video was shot from the perception of the filmer – but I assure you that is not our policy and we absolutely do not discriminate against anyone – at all – ever.

    I hope I have shed better light on the situation and am here if you need to contact me again.

    Thank you and best wishes,
    Judith
    Swing46 Jazz and Supper Club
    349 W.46th Street - Restaurant Row
    {Between 8th + 9th Avenues}
    New York, NY. 10036

    Statement From Fred The Wheelchair User:

    I visited Swing 46 Club in Manhatten twice in May 2009. On my first visit I was told by the person in the video, who I learned is named "John" that I was not allowed onto the dance floor in a wheelchair. John, who I was told was a co-owner, and another chap, who appeared to be a manager, stopped me immediately as I went towards the dance floor . After explaining that I dance in similar places in London and am used to dancing at the side where it is less crowded the "manager" said I could have a trial dance with his waitress. I passed this test and was told I could dance but to stay in the corner or side if it was crowded. I did this and had a good night and several dances, in spite of the dirty looks I kept getting from John who appeared to be unhappy with the other guy's decision. That night the place was packed and people were dancing in aisles and entrances while food was being served. I actually did not start dancing until it got quieter as I don't like dancing in places that crowded. I did not see anyone being asked to stop dancing including those people dancing in the way of the food servers.

    When I returned to Swing 46 the second night it was quiet. I arrived late with two friends and food was not being served. During my second visit to Swing 46 I was never asked to move anywhere by John or anyone else. Suddenly as seen in the video John approached me and told me to get out. On noticing the camera he then pointed to a dark corner full of chairs where he said I could dance, but there was no way to dance in that confined area. Other guests and the singer who witnessed this were also shocked and a small fracas ensued amongst them as I left the club. Two other videos (Video 1 and Video 2) taken just a few minutes earlier prove that the dance floor was not busy and show people in the background dancing closer to the entrance than the position from where I was told to leave.

    I resent Judith's suggestion that I was a nuisance or caused any problem. In the UK I am a frequent competitor at national competitions for able bodied jive and blues dancing. I compete in my wheelchair and am treated the same as all the other dancers. If you ask any venue owner in the UK where I dance I am sure they will confirm that I am an experienced, considerate and spatially aware dancer.

    While Judith may have a "cool vibe anti discrimination policy.", it seems clear to me that not everyone in her club shares her opinion. I wonder if Judith would care to confirm that the man John, shown in the video is the co-owner of the club?

    Fred
    Oxford
    UK

    -------------------

    Gene: After reviewing the statements from both parties, does this appear to be a type of disability discrimination that a lawyer could successfully litigate?

    David: Yes, this could be successfully litigated. It appears that the wheelchair user was asked to leave the dance floor simply because he was in a wheelchair. If that's the case, it's blatant discrimination based on disability or perceived disability.

    Gene: What further information would you require?

    David: All identifying information about the nightclub, name, address, phone, etc. All identifying information about the wheelchair user. The time and date of the incident, all identifying information about the witnesses (such as the wheelchair users friends who saw it, strangers who saw it, and especially who took the video.) The more repeated the discrimination the more valuable the case. In other words, if this kind of thing happens over and over again, with more that one staff member acting in a discriminatory fashion, it shows that the business itself, not just one individual employee is breaking the law.

    It may also be that the nightclub's building and or interior was built or substantially renovated after 1993 and that it has access problems unrelated to the poor training and attitude of staff members, such as the one shown in the video. If that is the case, it raises the dollar value of the case and makes it more attractive to lawyers because it raises the fees.

    Eventually we would want an audit of the building and staff training as to disabled access.

    Gene: What should a wheelchair user do if confronted with a case of discrimination? What are the steps you would recommend that they take?

    David: They should calmly and gently inform that employee of the wrongfulness of their conduct and see if it "self-corrects." However, it probably won't. Then if possible - and in NYC and/or a nightclub environment, this is probably not going to happen. A video and witness statements, including that of the wheelchair user will be a big help. In the end, call a lawyer.

    Gene: Lawyers are expensive and many wheelchair users will not have the money to make hire a lawyer. How likely is it that a wheelchair user could find a good lawyer to litigate a case like this on a contingency basis?

    David: The best answer I can give you is that my firm would be interested in looking at the case on what you are calling a 'contingency' basis. However, the way we work is not what is usually considered a contingency. By that I mean, that we don't take a percentage of the proceeds of the case. We take cases after investigating the circumstances. If the case has merit, and if we believe we will be awarded attorney's fees by the court, or through settlement with the defendant business, then we will take the case and litigate it. Some settlements, allow the Plaintiff wheelchair user a certain amount of money for pain, suffering, aggravation, humiliation as damages. Sometimes the defendant will make a donation to an advocacy organization as part of a settlement. It is very difficult in any case, to determine what a judge will do.

    Gene: If the wheelchair user does not win the case, will the wheelchair user have to pay lawyer fees or any other costs?

    David: No. Unless fees are awarded by the court or through settlement the Plaintiff, the wheelchair user, will not pay.

    Employment Discrimination

    Gene: The next area I want to discuss with you is employment discrimination. Let's say a wheelchair user applies for a job for which they are very qualified. They get an interview which goes very well, but in the end they don't get the job. Is there anything that can be done from the legal point of view? It must be very difficult to prove that the reason that the job was denied was due to the fact that they are in a wheelchair.

    David: The potential case scenario is in fact a difficult one. And such things happen all the time and employers know it. A legal case is not so much about the truth - it's about what you can prove. If a person feels the truth entitles him to compensation through legal process, that person must either prove the case to a court or administrative body, or settle with the wrong doer.

    The pattern you present could possibly be proven by showing that the person hired in the place of the wheelchair user, was less qualified and experienced. But of course that kind of information is difficult to obtain. Statements made by the hiring individuals could also be used. The more blatant, either by act, statement, or showing that the person hired was not even remotely as qualified, would help. This is all true in any kind of employment discrimination case whether it be ADA, gender, race, religion or what have. All of them very difficult, but not impossible to prove. Sometimes, the employer will make the smoking gun obvious.

    Gene: If someone becomes disabled while they are employed and they lose their job is there anything that can be done?

    David: Yes there is. If the person remains qualified, and a reasonable accommodation for the disability can be made, and the person with a disability is discharged and the reasons given are an obvious pretext or simply blatant, that person may have a case of discrimination which can be remedied by legal process.

    More information about employment discrimination can be found by watching this video below:

    -------------------------------------

    David Otto is a lawyer and owner of the law firm of David Otto & Affiliates, PC in Las Vegas, Nevada. Though based in Las Vegas Mr. Otto accepts cases from all over the country and the world. He has been practicing law for 18 years. He has successfully litigated numerous ADA compliance cases, including architectural barriers and other discrimination cases. He is a Plaintiff's lawyer and works primarily in the areas of Disability Discrimination, Civil Rights as well as Injuries and Accidents negligence case.

    This article about disability discrimination law is copyrighted and may NOT be copied or reproduced without permission of the owners of The Wheelchair website.





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