Diversity – Does it Matter in the Legal Profession?

By: Matthew Dietz

The Florida Bar is fully committed to the enhancement of diversity within the Bar, the legal profession, legal education, and in the justice system, and affirms its commitment toward a diverse and inclusive environment with equal access and equal opportunity for all.

–The Florida Bar Board of Governors, May 2010

On June 23, 2015, the Supreme Court issued their ruling in Fischer v. University of Texas at Austin, Case No. 14-981, upholding race conscious admissions policies at the University of Texas, as long as it is only a factor in a holistic review as a means of obtaining the educational benefits that flow from student body diversity.     Justice Kennedy issued a muted opinion from the Court touting the benefits of diversity and quoted from a prior decision stating:

[T]he compelling interest that justifies consideration of race in college admissions is not an interest in enrolling a certain number of minority students. Rather, a university may institute a race-conscious admissions program as a means of obtaining “the educational benefits that flow from student body diversity.” … As this Court has said, enrolling adverse student body “promotes cross-racial understanding, helps to break down racial stereotypes, and enables students to better understand persons of different races.” … Equally important, “student body diversity promotes learning outcomes, and better prepares students for an increasingly diverse workforce and society.”

Diversity also promotes the image of impartial justice, knowing that lawyers and judges that have the panoply of cross-racial, and cross-cultural experiences will not have deep seated stereotypes or prejudices against persons because of who they are, what they believe, or what they look like. However, the diversity within the Florida Bar and the Florida Judiciary does not reflect the population of Florida. If one looks at the statistics of the Florida lawyers and judiciary, as compared to the population of Florida, it is elemental why it is important to ensure that diversity is encouraged to ensure the appearance of justice and the destruction of stereotype.

Category	Percent lawyers in Florida[1]	Percent Judges in Florida[2]	Percent in Jud. Nominating Commission[3]	Percent Population in Florida[4]
White/Caucasian	83	84.1	86	55.3
Hispanic	10	8.9	9	24.5
African American/Black	3	6.7	4	16.8
Asian/Pacific Islander	1	.3		2.9
Other Race/Ethnicity	3			2.5
LGBT	3			3.5
Persons with Disabilities	2			13.1

Why does it matter for persons with disabilities?

In an interview, Mr. Trump said U.S. District Judge Gonzalo Curiel had “an absolute conflict” in presiding over the litigation given that he was “of Mexican heritage” and a member of a Latino lawyers’ association. Mr. Trump said the background of the judge, who was born in Indiana to Mexican immigrants, was relevant because of his campaign stance against illegal immigration and his pledge to seal the southern U.S. border. “I’m building a wall. It’s an inherent conflict of interest,” Mr. Trump said.[1]

 

Mr. Trump has stereotyped a judge solely because of his ancestry and a stereotype that the judge may not be in line with his views.  With a person with a disability, each lawyer, juror, and the judge carries with them a lifetime of stereotypes and misconceptions about persons with disabilities. Most of them start with….”I once had a friend that had a family member that…”  Accordingly, the person’s whole perception of disability is built around the abilities of one person, or, even worse, what people see on television.  So essentially, there is the myth of the “super-crip” or the incapacitated person.

The “supercrip” as superhuman that is lauded by the able-bodied as the inspirational person who “overcame” their disability.   If you have a disability in one area, then you more than make up for it in all other ways. If you are blind, you can identify a person’s footfalls; if you are deaf, you can read lips from two miles away; if you are autistic, you are a mathematical savant.  It is “inspirational” for a person who has a disability to be successful in society, when, in truth, persons with disabilities do not need to act as tools to inspire, but just to live.

On the other hand, the incapacitated person, who is not able to be productive and is essentially invisible is as common.  The person who is shuttered in a nursing home and neglected because society does not provide access.  Society considers these folks “better off” where they can be taken care of, as they have nothing to contribute to society.

Both of these stereotypes are pernicious.

So, as a trial lawyer for a disability related claim, the most difficult part is dealing with these stereotypes and educating my colleagues in the legal profession that people with disabilities are people, just like them.  We all need assistance at one time or another, just like them.  We all need accommodations at one time or another, and we all have something to contribute.

But, when there is two percent of lawyers who have disabilities, a negligible number of judges with disabilities, and no active recruitment of persons with disabilities in law schools, it’s difficult to say to my clients that this judge or lawyer has ever had contact with a deaf person or a blind person.  In every single one of my cases involving a deaf person regarding not being able to get an interpreter for a critical situation in his or her life, the deposition of that deaf person usually includes a detailed description of how a deaf person uses a videophone, drives, or other daily living activities.

So, when Justice Kennedy states educational diversity “promotes cross-racial understanding, helps to break down racial stereotypes, and enables students to better understand persons of different races.”  The same concept includes disability, and disability related stereotypes and attitudinal barriers against stereotypes must be broken down.

[1] http://www.wsj.com/articles/donald-trump-keeps-up-attacks-on-judge-gonzalo-curiel-1464911442

[1]2015 Florida Bar Membership Opinion Survey –  In December 2015, The Florida Bar sent an online survey link to a random sample of 3,078 in-state and out-of state, eligible members. By the cut-off date of December 30, the Bar had received 1,074 completed questionnaires, for a response rate of 35%. This response rate is acceptable for this type of lengthy online survey. https://www.floridabar.org/TFB/TFBResources.nsf/Attachments/4ECB247149A8546C85257F41007B6479/$FILE/2015%20Membership%20Opinion%20Survey%20-%20Final%20Report.pdf?OpenElement

[2] The Florida Bar President’s Special Task Force to Study Enhancement of Diversity  in the Judiciary and on the JNC’s, found at https://www.floridabar.org/TFB/TFBResources.nsf/Attachments/A4E41688279C883585257CE1004A0B9E/$FILE/Appendices%20to%20Task%20Force%20Report.pdf?OpenElement

[3] http://www.floridabar.org/TFB/TFBPublic.nsf/WNewsReleases/4F2B3E1B6C00CB3785257C8B00671B0B?OpenDocument

[4] US Census Quick facts for Florida information, found at  https://www.census.gov/quickfacts/table/DIS010214/12.

For Disability Statistics – ACS Disability Statistics 2010-2014, found at http://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ACS_14_5YR_S1810&prodType=table

For LGBT statistics – http://www.lgbtmap.org/equality_maps/profile_state/10

 

Litigation: Is Your Child A Runner?

Some children with autism, developmental or intellectual disabilities may wander off without any comprehension of possible danger.  This might include running off from adults at school or in the community, leaving the classroom without permission, or leaving the house when the family is not looking. While most children are drawn to water, many autistic children seem even more fascinated by it — and they’re also fearless.

 

On April 29, 2012, Hannah Sackman, a seven year old Autistic little girl drowned when she eloped from a housing development at military housing in Fort Gordon.  When Hannah’s mother was concerned with the size of the fens and the locking mechanism of the fence, she asked the management company if she could install additional locks on the doors that were higher up and out of Hannah’s reach. The house had three exterior doors and all of them had a locking mechanism on the knob and a dead-bolt – both of which could be unlocked from the inside with a simple twist and without using a key and Hannah’s mother was concerned she would figure out how to open them. In response to her request, the management said, “no, it was against policy” and would damage the doors. In 2013, Hannah’s parents sued the housing manager under the Fair Housing Act for the death of their daughter, and the case settled for an undisclosed amount in 2015.

What happened to Hannah Sackman is not unique, and the Fair Housing Act requires housing providers allow persons with disabilities or those associated with them to modify the premises if the modification is necessary for the person with a disability, and is done at the expense of the person with a disability.  For residents of public housing or other housing that is federally funded, the modifications must be done at the expense of the housing provider.  These modifications can be as simple as a lock on a front door, or grab bars in a shower; or as complicated or expensive, such as a pool lift, or installing ramps or sidewalks.

Kim Johnson came to Disability Independence Group because she was afraid to live in a home that would not be safe for her daughter.  Kalia is a 10 year old girl who lives with Fabry disease, which is a rare genetic disorder.  Along with a developmental disability, Kalia  also suffers from episodes of pain, is legally blind, hard of hearing, and problems with her gastrointestinal system and a cecostomy.  She requires twice daily flushing of her stoma which takes hours and hours of time.  Kalia is a runner, and whenever she has a chance, she tries to escape.  She knows how to unlock doors and turn handles.

In March of 2016, Kim was looking for a new rental home in Largo, Florida and found

Kim and Kalia Johnson

perfect home.  During the showing of the home and throughout the leasing process, Kim and Kim’s Mother, Donna, spoke with the leasing agent, and explained how urgent it was that they move and the needs of Kalia’s disability.  Then, with the help of Donna, Kim entered a lease for the home.    After signing the lease, the leasing agent, instructed Kim on the use of the front door lock.  At that time, Kim said that she would need to install a chain lock on the door to keep Kalia inside since she has a tendency to elope.  As with Hanna Sackman’s mother, Kim was concerned with the locking mechanism and wanted a mechanism that was higher up and out of Hannah’s reach.

The leasing agent refused.  Kim explained that a that the chain lock was the most reasonable modification asserted her rights under the Fair Housing Act, in order for her daughter …”to be able to have an equal opportunity to have safe access to the majority of the home.”  The leasing agent and owner refused to allow Kim to install a higher locking mechanism, as they believed that a chain on the door would damage the door.  Then the lessor refused to return the money Kim spent on the home, and refused to allow her to find another home that would be suitable for Kim and her daughter.

Reasonable modification in housing is the law.  A landlord cannot legally deny a reasonable modification to a home.  In 2008, the U.S. Department of Justice and the U.S. Department of Housing and Urban Development issued joint guidance on the requirements relating to reasonable modifications under the Fair Housing Act.[1]

Adding a chain lock to the front door is the most reasonable, most effective modification given K.J.’s disability.  The chain-lock modification is the most reasonable modification because the chain lock would be out of K.J.’s reach and would successful prevent K.J. from eloping. Pursuant to HUD’s guidance, adding a chain-lock to the front door is necessary because the other suggested modifications will not be effective.  By denying Kim and her daughter Kalia an accommodation, this landlord denied them a safe home, solely due to Kalia’s disability.

[1] Joint Statement of the Department of Housing and Urban Development and the Department of Justice: Reasonable Modifications Under the Fair Housing Act (March 5, 2008),  http://www.hud.gov/offices/fheo/disabilities/reasonable_modifications_mar08.pdf (last visited May 10, 2016).

Summer Fun and Discrimination against Kids (with or without disabilities)!

By: Matthew Dietz

Unless the housing facility is a qualified 55 and over housing development, a housing provider cannot have rules that treat children differently, and less favorably than adults. When the US Congress amended the Fair Housing Act in 1988, it prohibited housing practices that discriminate on the basis of familial status.When it amended the Act, Congress recognized that “families with children are refused housing despite their ability to pay for it.” In addition, Congress cited a HUD survey that found 25% of all rental units exclude children and that 50% of all rental units have policies that restrict families with children in some way. The HUD survey also revealed that almost 20% of families with children were forced to live in less desirable housing because of restrictive policies. Congress recognized these problems and sought to remedy them by amending the Fair Housing Act to make families with children a protected class. So any rules, that do not have a legitimate safety justification, cannot indicate a “preference, limitation, or discrimination” against children under the age of 18. This includes rules that prohibit children from common areas in the facility with or without supervision, or limit the facilities of the housing development to adults. All rules must apply to children and adults equally, and cannot solely target children’s behavior.

If rules have a legitimate safety rationale, then such rules may be legitimate. But, again rules such as all children under sixteen must be supervised by an adult does not have a safety rationale, but a discriminatory basis against loud teenagers. On the other hand, a fifteen year old at a gym may injure him or herself on free weights without having supervision.

Summer camp must be inclusive

Over the past fifteen years, I have had several cases involving children who were not permitted to go to the summer camp of their choice, or were segregated in the summer camp because of the child’s disabilities. A summer camp, like any other public accommodation under the Americans with Disabilities Act, must provide reasonable accommodations for campers with disabilities, and must not segregate them from other students. Camps operated by governmental entities or colleges have a broader duty to accommodate campers with disabilities than some private entities that do
not have the same resources as a governmental entity. Examples of situations which I have encountered over the years are as follows:

• Children who are Deaf – Deaf kids have the right to a qualified sign language interpreter for all programs and services of a camp that involve communication that is long, complex, or important. Examples of this would be instructions on how to play a complicated game, story time, puppet shows, and educational instruction. If there are games that involve communication, then an interpreter would be appropriate so the Deaf child is included.
• Autistic kids – If a child who lives with autism has a one-on-one aide at school, for the same reasons, that child may need a one-on-one aide at a camp. Further, if a child needs further instruction in a game, or assistance with social interactions, that would be an accommodation that must be provided.
• Kids who have a medical condition such as Diabetes – If a child has a medical condition, or needs assistance with a medical condition, such as diabetes or HIV, then the question is whether the child poses a direct threat to his or her own health or the safety of others. If a child needs minor assistance with a medical condition, or can manage his or her own medical needs and monitoring, a camp cannot discriminate against these children.
• Kids with mobility impairments or other physical disabilities – Camps, like any other public accommodations, must have their facility accessible to children with disabilities. Older camps must do modifications that are readily achievable, easily accomplishable and able to be carried out without much difficulty or expense, and those camps altered or built after 1991 must be constructed accessibly. The camp is also responsible for making reasonable accommodations for campers with disabilities, which may involve some personal services, such as assistance in dressing, if similar services are available for able bodied campers.
• Kids with allergies – Kids who have allergies cannot be excluded from camps, and camps must be prepared to exclude certain allergens to accommodate a camper, and be trained in the event a camper has an allergic reaction. It would not be unreasonable to expect camp counselors to learn how to administer epinephrine auto-injector (“Epi-pen”) shots and dispense asthma medication, assist in administering Diastat for seizures in emergencies or otherwise teach camp counselors in basic first aid or CPR.

Parents can choose to send their child to a segregated camp, because some camps may provide special skills or advantages for children with disabilities, but the choice of going to a specialized camp is a choice, such as camps where all children are deaf.
However, all children may not be able to go to integrated camps. For example, there may be children with developmental disabilities or intellectual disabilities who would not be able to care for themselves at a sleep-away camp, and it would be a fundamental alteration of the camp’s programs to develop a program for one child’s disability. Further, if a child is dependent on mechanical supports, a camp would not be required to hire medical personnel to accommodate medically complex children. For these kids specialized camps are a phenomenal way to get out and enjoy the community. For example, Nicklaus Children’s hospital operates the VACC camp for technologically dependent children which includes swimming, field trips to local attractions,campsite entertainment, structured games, “free play”, to promote family growth and development while enhancing these kids’ self-esteem and social skills.

It’s so damn hot – my kid has asthma and needs an air conditioner

Last year, we represented a mother who had a child who lived in HUD-subsidized low-income housing. Asthma is often triggered by inhalation of air particles that contain allergens such as pollen, mold spores, dust mite droppings and animal dander. Air conditioners contain filters that collect and store these particles, keeping intake to minimum. Air conditioning also helps eliminate humidity on hot Florida nights which enables mold and algae to grow much more rapidly than it could if it were living in dry air. Some children and adults suffer from asthma to the degree that not having air conditioning may result in serious harm and hospitalization. Requesting to install an air conditioner unit in a home or apartment would be a reasonable accommodation for a person with a disability.

According to the Fair Housing Act, a tenant with a disability can request a reasonable modification. According to HUD Guidance, “A reasonable modification is a structural change made to existing premises, occupied or to be occupied by a person with a disability, in order to afford such person full enjoyment of the premises. Reasonable modifications can include structural changes to interiors and exteriors of dwellings and to common and public use areas.” Under the Fair Housing Act, a housing provider must permit the modification, the tenant is responsible for paying the cost of the modification. If the housing provider is a public housing authority or a housing provider that receives federal financial assistance, the modification must be paid for by the housing provider unless providing the modification would be an undue financial and administrative burden.
Another example modifications can be a pool lift!

Discrimination in Pool Rules

• No inflatable flotation devices.
• Water wings, swimmies, floats, bathing suits rings, and other inflatable devices are not permitted in the pools.
• Absolutely no dogs allowed in pool area

Also, under the Fair Housing Act, persons with disabilities can ask for “reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford … person(s) [with disabilities] equal opportunity to use and enjoy a dwelling.” So when a person is required to use water wings, floats, special swimming devices, they can do so. In order to request an accommodation, the person needing an accommodation should ask the housing provider, and if the disability is not obvious, then the person may need to obtain verification from a doctor, therapist, or any other provider verifying the disability and need for the accommodation.

In addition, “no dogs allowed” rules do not apply to service or emotional support animals, where their presence is necessary for the person with a disability equal use and enjoyment of the premises. The Fair Housing Act and the ADA does not override public health rules that prohibit dogs in swimming pools. However, service animals must be allowed on the pool deck and in other areas where others are allowed to go.

Employment Support for People with Disabilities

If you are disabled and you are pursuing employment, you are not alone. You can find many agencies providing employment support that will help you reach your vocational goal.

Vocational Rehabilitation (VR)

Centers for Independent Living

Employment Networks

Disability Program Navigator Initiative

Disability Rights Florida

The Job Accommodation Network (JAN)

IS HEALTH CARE ONLY FOR THE “ABLE BODIED”?

Mr. Larry McDowell presented to our office for a consultation on the afternoon of Thursday, March 17, 2016. When Mr. McDowell arrived, he needed to be guided by holding on to someone in order to get places in the office; he will need to bring someone with him who can assist him in walking as it is a liability for the office staff to physically guide him themselves. Mr. McDowell will also need assistance in going over treatment, signing paperwork, and etc.

 We Apologize for Any Inconvenience.

(Actual copy of letter)

When Larry McDowell went to Affordable Dentures in West Palm Beach, Florida, to have a dental procedure on March 17^th, there was no reason that he could possibly believe that he wouldn’t be able to get the same services as anybody else.  But once Mr. McDowell reached the front desk, he was directed to follow someone to the examination room. Mr. McDowell then said, “I’m blind, could you help to where I’m going?” The employee at the desk said nothing. Once a member of the office staff arrived, Mr. McDowell asked for assistance to the examination room – Mr. McDowell asked to hold her elbow.

She said, “No. We can’t help you unless you have someone to help you. We can’t treat you unless you bring someone to assist you.” Mr. McDowell then asked to speak to the dentist. When Mr. McDowell asked where the dentist was, the employee replied that he was in surgery and would be there for the next two hours.  A patient who was watching the interaction told Mr. McDowell, “No he’s not. He’s standing right there.” After the patient’s remark, the employee said to Mr. McDowell, “The dentist doesn’t want to speak to you today.”

Mr. McDowell requested Affordable Dentures to email a copy of written reason to his sister, and they sent the above letter.   It was then while Mr. McDowell was waiting in the office, an employee approached him and informed him he could not wait inside the office any longer and must leave, since the dentist would not be seeing him today—with the knowledge that Mr. McDowell had taken public transportation.

 Nothing in all the world is more dangerous than sincere ignorance and conscientious stupidity.

 Martin Luther King, Jr.

Larry McDowell’s needs were basic human needs, and the outright denial of such services based solely on his disability transforms him, in the eyes of this medical provider, into a human who is not worthy of basic services.  Mr. McDowell is a man who has transformed his life to assist others.  He is a member of the National Federation of the Blind and is currently the  President of the Braille Club of Palm Beach County.  The Braille Club of Palm Beach County organizes social activities and weekly meeting among the blind and visually impaired community in Palm Beach. In his free time, Mr. McDowell seeks to live an ordinary life filled with friends and outings.

“Aside from the public health issues that most racial/ethnic minorities face, minorities with disabilities experience additional disparities in health, prejudice, discrimination, economic barriers, and difficulties accessing care as a result of their disability—in effect, they face a “double burden.”[1]   “Disability-based discrimination in health care is illegal under the Americans with Disabilities Act and will not be tolerated,” said Eve L. Hill, Deputy Assistant Attorney General for the Civil Rights Division at the Department of Justice. “All types of health care providers – from hospitals to nursing homes, from surgeons to general practitioners – all across the country – need to provide equal access to people with disabilities, including people who are deaf…, the time for compliance is now.”[2]

Notwithstanding the fact that the ADA is over 25 years old, it is common-place that medical professionals, who are dedicated to the health of their patients, are too often dismissive of their patient’s disability-related needs.  Most discrimination against persons with disabilities are not so blatant and ignorant as what occurred with Mr. McDowell.  Some of the issues which serve as barriers to persons with disabilities include inaccessible physical environments, and inflexible policies and procedures that, for example, assume that everyone must be able to independently fill out forms, undress unaided, transfer to high examination tables, and communicate in spoken English to receive standard health care services.[3]

The failure to provide accommodations and an accessible environment will, at the least, lead to health care disparities, and at the worst, lead to injury and death.

The most common issue at Disability Independence Group is doctors and hospitals that refuse to provide sign language interpreters for people who are deaf. Instead these professionals choose to communicate in English by writing notes or using technology that fails to work accurately and timely.  This leads to miscommunication and does not allow the deaf patient to have the full opportunity for medical choice as any hearing person would expect. This failure to communicate leads to misdiagnosis, failure to take the appropriate medicines, and continued illness.  When it comes to psychiatric treatment, it often exacerbates the symptoms. Other issues that often arise are as follows:

• Medical professionals often ignore persons with disabilities and speak to their family member or caretaker, solely because of the assumption that the person with a disability cannot fully grasp the issues regarding their care and treatment.
• Doctor’s offices and hospitals do not always have medical equipment such as a wheelchair-accessible weight scale or a height-adjustable exam table. Due to barriers, individuals with disabilities are less likely to get routine preventative medical care than people without disabilities.[4]
• Further, despite universal precautions, health care providers may still be hesitant to treat patients who are HIV positive or live with AIDS.

However, the main issue is the fact that because of the difficulties that persons with disabilities encounter, such persons are less likely to receive needed health care.  According to a Disability Healthcare Access Brief published by the Disability Rights Education and Defense Fund, 19% of people with disabilities reported that they did not receive medical care needed in the previous year, compared to 6% of non disabled persons.[5]

People with disabilities tend to be in poorer health and to use health care at a significantly higher rate than people who do not have disabilities.  Larry McDowell is not a statistic, but instead a blatant example of an issue which needs to be addressed.  Equality in health care is not a benefit, but a basic right.

Deaf Woman Denied Career Choice at Keiser University

Katy Daniel-Rivera is a Deaf woman who lives in Florida, and works at the Bay Pines Veterans Administration (“VA”) Hospital as a Radiology Medical Support Assistant in the Imaging Service Department. After receiving many positive performance reviews over her three years at the VA, Katy sought to advance her career by becoming licensed by the State of Florida in Radiologic Technology. As a Deaf woman, Katy has been successful in her chosen career and has had sign language interpreters or other services through all of her education and other licensing opportunities.

As Katy began researching programs in 2014, Keiser University had reached out to Katy and told her what a good match she would be for the University and its program in Radiologic Technology. Keiser University has an enrollment of over 20,000 students and earns over 300 million dollars in revenue per year. Its main campus is in Fort Lauderdale, with fifteen additional branches located in other parts of Florida.

After finding out about the program, Katy wanted to meet personally with the admission counselor to discuss the assessment test and the program, and requested a sign language interpreter for the meeting. The counselor denied her request, but assured her that Keiser
would provide accommodations once she was admitted. Over a twelve-month period, Katy had numerous meetings about the accommodations she needed, but was not provided an interpreter for any of them. On September 29, 2015, Keiser accepted Katy into the Radiologic Technology Program and told her to show up at orientation on October 22nd, where they finally would provide an interpreter. At the orientation Katy was handed a letter from the Office of the Chancellor of Keiser rejecting her from the Keiser program because she is deaf, claiming that she posed a safety risk to others and that providing interpreters would be “inordinately expensive and extremely difficult to maintain.” Katy was crushed.

On January 7, 2016, National Association of the Deaf Law and Advocacy Center, and Miami-based Disability Independence Group filed suit on behalf of Ms. Daniel-Rivera. Keiser’s reasons for rejecting Katy Daniel-Rivera were based on stereotypes and out-moded beliefs and not on the actual capabilities of Ms. Daniel-Rivera. She has been successfully practicing in this field for several years, not once compromising other’s safety because she is deaf. Further, numerous ASL-using deaf and hard of hearing individuals have successfully trained for and performed healthcare jobs that exceed the demands of Radiologic Technology. For example, ASL-using deaf individuals currently or previously have worked as pediatricians, and as hospitalists in teaching hospitals. Regarding expense, universities routinely provide sign language interpreters for all programs or services, as required by law. Indeed, Keiser accepts tens of millions of dollars of federal financial assistance each year conditioned on a promise to provide interpreters when needed.

Katy Daniel-Rivera would like the opportunity to succeed in her chosen career and earn a license to be a Radiologic Technologist. With appropriate auxiliary aids and services, a person who is Deaf can perform any job. To deny a person that opportunity is discrimination.

Autistic Man Fired from Cargill because of stereotypes about Diabetes

On February 4, 2014, Nik Stahly was excited to get up and go to his new job, his first job. Nik obtained a job with Lab Support, an employment staffing company, who placed Nik at Cargill, the global food processing company. Nik’s stepfather, Brian Tygesson, took Nik to the store to purchase the required steel-toe shoes to get ready for the job. Nik has autism and wanted to ensure that no detail involving his job was overlooked.

When he arrived at Cargill, Nik was greeted by the human resource and safety supervisor, and Nik and his stepfather spoke to the supervisor and explained that Nik was diabetic and needed a place to leave his testing supplies so he could test his blood sugar levels. Nik had been receiving care for his type one (juvenile) diabetes and receives treatment by an insulin pump, glucose tablets, and requires regular testing. Because of his diligence with his care, Nik’s diabetes is well managed and he has never had a severe hypoglycemic episode. The Cargill supervisor offered to allow Nik to leave his testing supplies in her office so they would not get lost or damaged.

For his first day, Nik had an uneventful day working in the warehouse in which he carried boxes of butter and measured ingredients. On his second day, Nik reported for his scheduled shift at 4:00 A.M. and emptied cans of tomatoes until 7:00 A.M. Several hours later, Nik began to work with two other workers sorting and preparing cilantro for cutting and shipping. Having completed that task, Nik began to feel as if his blood glucose levels were falling and needed to test his glucose levels during a break. During the break Nik tested his blood glucose level, which was a little low. So, during the break Nik drank a soda and ate a snack of potato chips and was fine, returning to work on time. Nik completed the remainder of the workday without incident, working until approximately 2:00 P.M. However, Nik was called into the safety supervisor’s office and questioned about his diabetes and his need for testing. He was asked whether it was his fault when his glucose levels dropped. Nik informed the safety supervisor once he gets into a routine, his glucose levels should be fine, but he may need a short break to have a snack. Once he has a snack, he is ok.

That night, Nik was informed that he was fired because he was not the right fit for the job and was “shaky” as a result of his diabetes. Nik was confused and could not understand that if he was doing everything that his doctor told him to do, why was he fired? Nik’s first job lasted two days. Nik was the victim of disability discrimination and should not have been fired, and Disability Independence Group is pleased to represent Nik.

People with diabetes face unfair stereotypes and discrimination at work, at school, and elsewhere in their lives. The American Diabetes Association is committed to ending this discrimination through its legal advocacy program.

“No American should lose a job because of speculation or stereotypes about their disability. Employers have a duty to judge people on their actual abilities and not preemptively exclude them by labeling them a “safety” concern. That’s not only the law, but a fundamental part of who we are as Americans.”

Kathy Butler, chair of the American Diabetes Association Legal Advocacy Subcommittee, employment lawyer in Houston, TX.

Further, the medical profession and those endocrinologists who care and treat persons with diabetes confirm the well-known fact that persons with controlled diabetes should not be precluded from active employment:

“Mild symptoms of hypoglycemia (low blood sugar) are commonly felt by people with insulin treated diabetes. These symptoms are an early warning signal that leads to effective self-treatment by ingesting a source of sugar, like juice or regular soda, in order to prevent further declines in blood sugar. Effective self-treatment of early symptoms in no way indicates that the person with diabetes is unable to carry out any job-related tasks for which he/she is otherwise qualified. Nor does it indicate greater risk for job-related injury.”

Dan Lorber, MD, FACP, CDE Director of Endocrinology at New York Hospital Queens, Associate Director of the Lang Center for Research and Education, American Diabetes Association volunteer.

For more information about diabetes, please see the Americans with Diabetes website at www.diabetes.org

Sharon Langer Recognized with the Anti-Defamation League Miami Jurisprudence Award

On November 19, 2015, Sharon Langer, Development Director of Disability Independence Group, and Alan Dimond of Greenberg Traurig were both recognized with the Anti-Defamation League (ADL) Miami Jurisprudence Award.

Sharon Langer’s remarks included the following

For the past 100 years, the Anti-Defamation League has stood up against anti-Semitism, bigotry, and other pernicious stereotypes in our country and around the world. Like Anti-Semitism or any other form of bigotry, the roots of disability discrimination stem from the belief that persons with disabilities do not have the same natural rights to be a member of our communities. From my 28 years at Legal Aid of Miami, I brought my lifetime of experience at Legal Aid to Disability Independence Group to join the fight for equality for persons with disabilities. ADL has been involved in this fight for one hundred years, and we are ready to join this fight to ensure equal treatment.

Persons with Disabilities make up more than 20% of the population in Florida. Children with Disabilities are subject to incarceration at much higher rates than other children; persons with disabilities are at greater risk of becoming victims of domestic violence and hate crimes; and most persons with disabilities are excluded from basic opportunities for integration in the community and basic opportunities for employment, housing, medical treatment, education, and religious and cultural life.

The Anti-Defamation League has been a national leader on hate crimes laws. Nine years before the enactment of the Americans with Disabilities Act, in 1981, ADL drafted a model hate crimes penalty enhancement statute, inclusive of disability. The vast majority of the 45 state hate crimes laws, including Florida’s, are based on this model. Furthermore, for 13 years, ADL lead the coalition that successfully advocated for the 2009 the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention, which includes disability.

This fight against hate extends to persons with disability in ways that must be addressed. Persons with disabilities are victimized at a rate three times higher than persons without disabilities. In 2012, 1.3 million violent crimes, that included rape and physical assault, occurred against persons with disabilities. PEOPLE With Disabilities are:

• 3 times more likely to experience violent victimization as adolescents
• 3 times more likely to experience rape, sexual assault, aggravated assault and robbery
• 3 times more likely to be sexually abused as children

Disability Independence Group has been awarded a Training and Enhanced Services to End Violence against Women by the Office of Violence Against Women. With our partners, M.U.J.E.R, a sexual assault and domestic violence center, Dade Legal Aid, that provides representation to victims and CVAC – Miami Dade County’s Victims Assistance Center we will spend the next three years working with experts from the federal government to create sustainable change within and between our organizations that will result in accessible, safe and effective services for victims who are persons with disabilities.

The ADL has long been involved in education and outreach to ensure that everyone is aware that persons with disabilities are entitled to equal rights and opportunity. The best way to reduce discrimination is to prevent stereotypes from being continued. At DIG, we identified an issue that persons with autism were subject to misunderstandings during police interactions as the officer would not have knowledge of Autism, and would interpret disability-related behavior as criminally suspicious behavior.

As a response to reduce assumptions and stereotypes about autism, DIG created the Wallet Card program to ensure that persons who live with Autism have a tool that they could use to self-identify their disability when they encounter law enforcement personnel and other first responders. The Wallet Card is a laminated card that a person with autism of a developmental disability carries with them that is individualized and notifies a first responder of the specific disability-related issues. Along with the Card, we have trainings both for persons with autism or other developmental disabilities, and for first responders. Thus far, we have produced almost 2,000 cards, and will be adopted by the Miami-Dade County Commission as a project for Miami-Dade police in December.

The Anti-Defamation League has also been instrumental in the fight to dismantle the School to Prison pipeline. The “School-to-Prison Pipeline” refers to the policies and practices that push our nation’s schoolchildren, especially our most at-risk children, out of classrooms and into the juvenile and criminal justice systems. Students who qualify for special education too often receive inferior services in segregated settings and incur repeated disciplinary actions. According to the U.S. Department of Education, students with disabilities are more than twice as likely to receive an out-of-school suspension (13 percent) than students without disabilities (6 percent). Students with disabilities represent 12 percent of the overall student population, yet make up 25 percent of all students involved in a school-related arrest. Many families reject special education because of the stigma attached to disability, or additional academic and behavioral supports are not provided to children who have been identified as a child with a disability. School-to-Prison Pipeline reform must include diversion from the juvenile justice system to provide the programs necessary for students with disabilities in the education system.

We are proud to have ADL as our ally in this fight, and look to their lead in protecting the rights of persons with disabilities. As Martin Luther King Jr. said, “Human progress is neither automatic nor inevitable, every step toward the goal of justice requires sacrifice, suffering and struggle; the tireless exertions and passionate concern of dedicated individuals.” As I look out into this audience, I see my friends in the steps towards justice, and those who have sacrifices and struggled for the future that we all work towards.

Litigation: When the denial of a reasonable accommodation leads to tragedy

By: Matthew Dietz

Most times when a person requests a reasonable accommodation or a modification because of a disability, the accommodation or modification assists a person to live independently or lessens the effect of a disability. This includes a closer parking space, grab bars in the bathroom, or an assistance animal. However, there are many times when a need for an accommodation is a matter of life and death. In a recent case filed by DIG and Belvin Perry of Morgan & Morgan, the denial of a reasonable accommodation led to Samuel Rosario’s death at his apartment at the Logan Heights Apartments in Sanford, Florida.

Sammy Rosario had four adult children, two boys and two girls, and many grandchildren, but he valued his stubborn independence and insisted on living on his own. Sammy lived at Redding Gardens, a Public Housing Property where only elderly and disabled individuals were admitted. He was admitted to this specific property because he lived with numerous medical conditions, including memory loss, seizure disorder, and mobility impairments.

In October 2011, Orlando Housing Authority (OHA) assisted in the relocation of residents that lived at Redding Gardens, and Sammy was moved by OHA to Logan Heights Apartments, a privately owned, tax credit, multi-family development. Sammy was relocated to a one bedroom apartment on the third story, with access by three flights of stairs. However, on the same day of the move, the OHA Relocation Specialist telephoned Sammy’s daughter, Stephanie Fernandez, to tell her that her father could barely make it to his second floor apartment at Redding Gardens and OHA refused to allow Sammy into the moving truck to the new apartment.

Stephanie frantically searched for her dad and could not find him at either development, so the entire family conducted a dragnet for Sammy Rosario. Sammy Rosario was found lost, delirious and bleeding close to a major highway. An ambulance was called and he was taken to the hospital. Once released, Sammy could not see. He was legally blind. Stephanie called the relocation specialist, informed them of her dad’s condition, his inability to live independently or on the third floor, and requested assistance for her father to live in a first floor apartment and to be allowed to live with an aide. No action was taken on their request.

For the next two years, Sammy, and his daughters Stephanie and Stacie, provided, asked, and pleaded for a first floor apartment and the ability to have a live in aide for Sammy, so he could live as independently as possible. They provided doctors notes, but were given various excuses by OHA, including the lack of adequate funding for relocation.

In the fall of 2012, the Social Security Administration denied Sammy Rosario’s application for Social Security Disability. Because Mr. Rosario’s disability was so obvious, Mr. Rosario appealed the decision. However, notwithstanding the determination of Mr. Rosario’s doctors of his disability, OHA decided that Mr. Rosario was now not considered “disabled”. This was due to a finding of the Social Security Administration that Mr. Rosario was not classified as disabled and Mr. Rosario and his daughters were advised that no accommodation would be provided and that Mr. Rosario was now not even entitled to a rent subsidy based upon his disability.

Stephanie did not accept this determination, reviewed the Department of Housing and Urban Development (HUD) regulations on her own, and advised the housing authority that the denial of an accommodation was contrary to HUDs own regulations, as the HUD regulations specifically permit a finding of disability on factors other than a finding from social security. It just did not make sense as if the Social Security Administration was wrong in its determination, Sammy would be entitled to retroactive payments; however, if the housing authority was wrong, it could not retroactively give Sammy his accommodation he needs to live independently. In August of 2013, Sammy Rosario and Stephanie Fernandez had enough, and they filed a Fair Housing Claim against OHA. Even after the filing, the OHA affirmed their denial, but advised Ms. Fernandez that “Should Mr. Rosario win his appeal to the Social Security Administration’s denial, please contact our office and we will reconsider our decision.”

Social Security reversed its decision and granted Sammy Rosario benefits back to September 2011 – less than three months after the filing of the fair housing complaint – but OHA did not reconsider. Instead, they advised that Ms. Fernandez would need to go through the entire reasonable accommodation process again. Instead of allowing Mr. Rosario the accommodation he needed, the OHA decided to use the accommodation as a negotiating point in the fair housing investigative process instead of immediately providing the necessary accommodation.

On March 19, 2015, Samuel Rosario had an accident where he fell, causing injury to his head and bruising to his eyes. He was admitted into the hospital for nine days, where he received needed physical therapy. Soon after arriving back home on May 29th, 2015, Mr. Rosario was found dead in the kitchen of his apartment. After an investigation and autopsy, it was determined that the cause of Mr. Rosario’s death was an unwitnessed fall, causing head injury. After completing the investigation, the Sanford Police Department determined that Samuel Rosario was injured while experiencing an unwitnessed seizure and was desperately seeking for help. The evidence of the trail of blood led from his bedroom to the bathroom, where there was a considerable amount of blood. The blood trail continued into the kitchen where Samuel Rosario experienced another seizure or fainted and hit his head, which was ultimately determined as the cause of his death.

On August 29, 2014, the Florida Commission on Human Relations determined that there was cause to believe that Samuel Rosario was denied a reasonable accommodation under the Fair Housing Act. However, unlike the reversal of the Social Security Disability determination, the denial of an accommodation cannot be granted retroactively, and Stephanie and her brothers and sister cannot bring their father back.

If Sammy Rosario had a live in aide, he would not have died. He would not have fallen, and if he had fallen, he would not have bled to death alone in his home. Over fifty percent of all fair housing complaints filed against housing providers in the United States are as a result of a denial of a reasonable accommodation or a reasonable modification in a home. Most of these accommodations cost nothing to a provider, yet may mean the difference between living independently and living in an assisted living facility or nursing home, or as in this case, the difference between life and death. For a federally subsidized housing provider, such as the Orlando Housing Authority, the subsidized housing provider has the obligation to pay for and provide a modification to the premises (such as a roll in shower or permanent ramp), or an accommodation by a change in a rule, such as a larger apartment to accommodate a live in aide, or relocation to a first floor apartment.

Disability Independence Group and Morgan & Morgan is pleased to represent the family of Samuel Rosario to ensure that a housing provider cannot ignore the needs of their residents with disabilities, and that accommodations are essential to independent living.

Litigation: When the denial of a reasonable accommodation leads to tragedy

By: Matthew Dietz

Most times when a person requests a reasonable accommodation or a modification because of a disability, the accommodation or modification assists a person to live independently or lessens the effect of a disability. This includes a closer parking space, grab bars in the bathroom, or an assistance animal. However, there are many times when a need for an accommodation is a matter of life and death. In a recent case filed by DIG and Belvin Perry of Morgan & Morgan, the denial of a reasonable accommodation led to Samuel Rosario’s death at his apartment at the Logan Heights Apartments in Sanford, Florida.

Sammy Rosario had four adult children, two boys and two girls, and many grandchildren, but he valued his stubborn independence and insisted on living on his own. Sammy lived at Redding Gardens, a Public Housing Property where only elderly and disabled individuals were admitted. He was admitted to this specific property because he lived with numerous medical conditions, including memory loss, seizure disorder, and mobility impairments.

In October 2011, Orlando Housing Authority (OHA) assisted in the relocation of residents that lived at Redding Gardens, and Sammy was moved by OHA to Logan Heights Apartments, a privately owned, tax credit, multi-family development. Sammy was relocated to a one bedroom apartment on the third story, with access by three flights of stairs. However, on the same day of the move, the OHA Relocation Specialist telephoned Sammy’s daughter, Stephanie Fernandez, to tell her that her father could barely make it to his second floor apartment at Redding Gardens and OHA refused to allow Sammy into the moving truck to the new apartment.

Stephanie frantically searched for her dad and could not find him at either development, so the entire family conducted a dragnet for Sammy Rosario. Sammy Rosario was found lost, delirious and bleeding close to a major highway. An ambulance was called and he was taken to the hospital. Once released, Sammy could not see. He was legally blind. Stephanie called the relocation specialist, informed them of her dad’s condition, his inability to live independently or on the third floor, and requested assistance for her father to live in a first floor apartment and to be allowed to live with an aide. No action was taken on their request.

For the next two years, Sammy, and his daughters Stephanie and Stacie, provided, asked, and pleaded for a first floor apartment and the ability to have a live in aide for Sammy, so he could live as independently as possible. They provided doctors notes, but were given various excuses by OHA, including the lack of adequate funding for relocation.

In the fall of 2012, the Social Security Administration denied Sammy Rosario’s application for Social Security Disability. Because Mr. Rosario’s disability was so obvious, Mr. Rosario appealed the decision. However, notwithstanding the determination of Mr. Rosario’s doctors of his disability, OHA decided that Mr. Rosario was now not considered “disabled”. This was due to a finding of the Social Security Administration that Mr. Rosario was not classified as disabled and Mr. Rosario and his daughters were advised that no accommodation would be provided and that Mr. Rosario was now not even entitled to a rent subsidy based upon his disability.

Stephanie did not accept this determination, reviewed the Department of Housing and Urban Development (HUD) regulations on her own, and advised the housing authority that the denial of an accommodation was contrary to HUDs own regulations, as the HUD regulations specifically permit a finding of disability on factors other than a finding from social security. It just did not make sense as if the Social Security Administration was wrong in its determination, Sammy would be entitled to retroactive payments; however, if the housing authority was wrong, it could not retroactively give Sammy his accommodation he needs to live independently. In August of 2013, Sammy Rosario and Stephanie Fernandez had enough, and they filed a Fair Housing Claim against OHA. Even after the filing, the OHA affirmed their denial, but advised Ms. Fernandez that “Should Mr. Rosario win his appeal to the Social Security Administration’s denial, please contact our office and we will reconsider our decision.”

Social Security reversed its decision and granted Sammy Rosario benefits back to September 2011 – less than three months after the filing of the fair housing complaint – but OHA did not reconsider. Instead, they advised that Ms. Fernandez would need to go through the entire reasonable accommodation process again. Instead of allowing Mr. Rosario the accommodation he needed, the OHA decided to use the accommodation as a negotiating point in the fair housing investigative process instead of immediately providing the necessary accommodation.

On March 19, 2015, Samuel Rosario had an accident where he fell, causing injury to his head and bruising to his eyes. He was admitted into the hospital for nine days, where he received needed physical therapy. Soon after arriving back home on May 29th, 2015, Mr. Rosario was found dead in the kitchen of his apartment. After an investigation and autopsy, it was determined that the cause of Mr. Rosario’s death was an unwitnessed fall, causing head injury. After completing the investigation, the Sanford Police Department determined that Samuel Rosario was injured while experiencing an unwitnessed seizure and was desperately seeking for help. The evidence of the trail of blood led from his bedroom to the bathroom, where there was a considerable amount of blood. The blood trail continued into the kitchen where Samuel Rosario experienced another seizure or fainted and hit his head, which was ultimately determined as the cause of his death.

On August 29, 2014, the Florida Commission on Human Relations determined that there was cause to believe that Samuel Rosario was denied a reasonable accommodation under the Fair Housing Act. However, unlike the reversal of the Social Security Disability determination, the denial of an accommodation cannot be granted retroactively, and Stephanie and her brothers and sister cannot bring their father back.

If Sammy Rosario had a live in aide, he would not have died. He would not have fallen, and if he had fallen, he would not have bled to death alone in his home. Over fifty percent of all fair housing complaints filed against housing providers in the United States are as a result of a denial of a reasonable accommodation or a reasonable modification in a home. Most of these accommodations cost nothing to a provider, yet may mean the difference between living independently and living in an assisted living facility or nursing home, or as in this case, the difference between life and death. For a federally subsidized housing provider, such as the Orlando Housing Authority, the subsidized housing provider has the obligation to pay for and provide a modification to the premises (such as a roll in shower or permanent ramp), or an accommodation by a change in a rule, such as a larger apartment to accommodate a live in aide, or relocation to a first floor apartment.

Disability Independence Group and Morgan & Morgan is pleased to represent the family of Samuel Rosario to ensure that a housing provider cannot ignore the needs of their residents with disabilities, and that accommodations are essential to independent living.