First Monday in October

May Cause Drowsiness or Dizziness or Color Blindness or Restlessness

I want a new drug - 

one that won't make me sick,

One that won't make me crash my car,

 or make me feel three feet thick.

I want a new drug - 

one that won't hurt my head, 

One that won't make my mouth too dry,

 or make my eyes too red.

One that won't make me nervous,

 wonderin' what to do.

One that makes me feel like

 I feel when I'm with you,

 when I'm alone with you.

~Huey Lewis and the News

I Want a New Drug

This afternoon, the following news update popped up on my phone:

FDA approves world's first pill to

boost women's libido

Time Is Running Out for the ABA Journal's Annual Blawg 100 List Nominations!

I enjoy putting this blog together. I see potential topics all the time. In fact, I can't imagine running out of topics because the law is so prevalent in our everyday lives. This blog is not just for lawyers or legal professionals, although I hope they will be prompted to think of ways the law touches us beyond their area of specialty. It's also not just for "lay people," whose legal training can be summed up in Schoolhouse Rock's "I'm Just a Bill."

Every year, the ABA Journal puts together a list of the 100 best legal blogs. Nominations (or “Friend-of-the-blawg briefs”) are due at 11:59 p.m. CT on August 16, 2015. That’s THIS Sunday night!

If you like All the Law I Saw, I would appreciate your support. Please click here to nominate this blog before the deadline.

Don't forget that Sunday is the last day to nominate a blawg. The list is released in December.

The Ability of Disability

So on we go

His welfare is of my concern

No burden is he to bear

We'll get there

For I know

He would not encumber me

He ain't heavy, he's my brother

~He Ain't Heavy, He's My Brother
The Hollies

Disability law is a myriad of  intertwined pieces of legislation. I've talked about the Americans with Disabilities Act, but even before that landmark legislation was signed by President George H.W. Bush in 1990, there was The Rehabilitation Act of 1973.

I downloaded the Rehabilitation Act from the Internet. It was 39 pages, single spaced. I flipped to the very last page, the very last sentence, and there I found what I was looking for. Section 504. It reads:

No otherwise qualified handicapped individual in the United States, as defined in §7(6), shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.

The language of Section 504 was the same as a provision of the Civil Rights Act of 1964. The only difference was that it covered disabilities instead of race, color, religion, sex, or national origin. Although Congress previously had dealt with and dismissed the subject of civil rights for people with disabilities, it was added to this legislation almost as an afterthought, and it garnered little attention when it became law.

As the Rehabilitation Act was signed into law on September 26, 1973, there were many other issues on the radar. The Watergate scandal was heating up. The Vietnam War continued, even though the United States had pulled its troops out of Vietnam and North Vietnam had released U.S. Prisoners of War. There was unrest in the Middle East. The United States was in the midst of the Cold War with the Soviet Union.

With so much happening in the country and in the world, perhaps it's no surprise that President Nixon signed the Act into law without realizing that it wasn't just a funding bill. Even disability activists thought it was a funding bill. No one debated Section 504 before it was enacted, because few people knew it was even there.

Section 504 didn't go unnoticed for long, however. The Department of Health, Education, and Welfare (HEW) estimated that compliance with Section 504 could cost billions of dollars. The Ford Administration avoided implementation of the provision. They stalled the issuance of final regulations until it became the Carter Administration's problem. They also claimed that Section 504 was a "policy statement" that did not require implementation.

By the time Jimmy Carter became President, the patience of disability activists was wearing thin. Carter's Secretary of Health, Education and Welfare, Joseph Califano, assigned a group of lawyers to rewrite regulations for Section 504. It was a half-hearted effort because, like his predecessor, Califano was not sold on the idea that people with disabilities had civil rights. 

Disability activists were not willing to let Califano off the hook. Demonstrations were held at the HEW office in San Francisco and at the HEW headquarters in Washington, DC. Protesters held a candlelight vigil at Califano's house. The Carter Administration became concerned that if the demonstrations continued, they would face the embarrassment of arresting "the deaf, the blind, and the crippled." Ultimately, to avoid that embarrassment, Califano gave in to the protesters and signed the regulations that had been drafted by the previous administrations.

Finalizing the regulations did not mark the end of the controversy. There was backlash when people discovered that nondiscrimination policies cost money. The Reagan Administration put Vice President Bush in charge of a task force to reduce regulatory burden. (As I mentioned at the beginning of this discussion, it was Bush who later signed the Americans with Disabilities Act into law). Among the regulations identified as burdensome on businesses were the 504 regulations. In response, disability activists remobilized and, although the Administration did manage to water down the regulations, it dropped its attempts to "de-regulate" civil rights for people with disabilities in 1984.

For more on the history of Section 504, albeit from a somewhat biased standpoint, see Signing the Section 504 rules: More to the story.

What Does Section 504 Do?

I've mentioned before that sometimes the U.S. government enacts legislation withholding funding to get states and local governments to do what they want them to do. Examples of this include withholding highway funds from states that didn't set their speed limit at 55 or their drinking age at 21. 

Section 504 essentially says that any program or activity that receives money from the federal government cannot discriminate against a person with a disability. If you're wondering about how the term, "handicapped individual" is defined, wonder no more--in subsection 6 of section 7 of the Rehabilitation Act of 1973, a "handicapped individual" means any individual who (A) has a physical or mental disability which for such individual constitutes or results in a substantial handicap to employment and (B) can reasonably be expected to benefit in terms of employability from vocational rehabilitation services. Clear as mud, right? Luckily, the Americans with Disability Act more clearly explains what constitutes a disability.

Federal Regulations

More than 40 years after enactment of Section 504, nearly every federal agency has its own set of section 504 regulations that apply to its own programs. Agencies that provide federal financial assistance also have Section 504 regulations that apply to entities receiving financial aid.

The Department of Health, Education and Welfare became the Department of Health and Human Services (HHS) after the Department of Education was created. On its website, HHS provides a Fact Sheet outlining its Section 504 regulations. The agency works to make sure that doctor’s offices, clinics and medical equipment are accessible to people with disabilities.

The Department of Education makes sure that student with disabilities get the kinds of educational services they need to succeed in school. Teachers and parents of students with special needs probably are familiar with the term "504 plan." For more information, see Protecting Students With Disabilities.

You can also check out the Department of Labor and the Federal Highway Administration to see their 504 regulations. And, to see just how far Section 504 and the ADA reach, check out Federal ADA and Disability Resources.

Climbing the Disability Mountain

There are times in life when you gotta crawl

Lose your grip, trip and fall

When you can't lean on no-one else

That's when you find yourself

I've been around and I've noticed that

Walking's easy when the road is flat

Them danged ole hiils'll get you every time

Yeah, the good Lord gave us mountains

So we could learn how to climb

~Mountains
Lonestar

I have to admit that I would not have known that Sunday, July 26, 2015, was the anniversary of an important piece of legislation if I had not quickly glanced at headlines last week. Twenty-five years ago, when President George H.W. Bush signed the Americans with Disabilities Act (ADA) into law, I probably did not think much about it even though I was in law school at the time. Even now, we may not notice it, but the ADA is all around us.

Twenty-five years ago, if you asked me about the ADA, I would have said that it had to do with putting in wheelchair ramps and elevators, and making sure that there are enough handicapped parking spaces. That's just the tip of the iceberg.

According to the website ADA.gov, the ADA "prohibits discrimination and guarantees that people with disabilities have the same opportunities as everyone else to participate in the mainstream of American life -- to enjoy employment opportunities, to purchase goods and services, and to participate in State and local government programs and services."

Introduction to the ADA

A disability is "a physical or mental impairment that substantially limits one or more major life activities.”

The ADA has five sections, or "Titles." Today, we look at Title 1.

Title 1--Employment.  In basic terms, the ADA says that an employer cannot use a disability as a reason:

• not to interview or hire a disabled person;
• not to promote a disabled person;
• to pay a disabled person less than a nondisabled person in a similar position with similar experience; 
• to fire a disabled person; or
• to treat a disabled person different from other employees in a similar position, except for providing "reasonable accommodations" for the disability.

Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act

"Reasonable accommodations" are adjustments or modifications an employer makes so people with disabilities can do their jobs. 

In the workplace, an employer must make a reasonable accommodation for a qualified applicant or employee if it would not create an “undue hardship” on the employer’s business. Generally, the person with the disability must ask for the accommodations. The accommodations needed depend on what will help the individual do his or her job.

Common types of reasonable accommodations:

• make existing facilities accessible;
•  job restructuring;
• part-time or modified work schedules;
• acquire or modify equipment;
• change tests, training materials, or policies;
• provide qualified readers or interpreters; or
• reassignment to a vacant position.

Examples of reasonable accommodations:

•  A deaf applicant may need a sign language interpreter during a job interview.
•  An employee with diabetes may need regularly scheduled breaks during the workday to eat properly and monitor blood sugar and insulin levels.
•  A blind employee may need someone to read information posted on a bulletin board.
•  An employee with cancer may need leave to have radiation or chemotherapy treatments.
•  An employee with lupus might need to sit on a stool, rather than stand, to reduce fatigue.

As usual, the devil is in the details:

• An employer does not have to provide a reasonable accommodation if it imposes an “undue hardship.” Undue hardship is something that is too difficult or too expensive for that particular employer.
•  An employer does not have to eliminate an essential function that is a fundamental duty of the position. A person with a disability who is unable to perform the essential functions, with or without reasonable accommodation, is not a "qualified" individual with a disability within the meaning of the ADA.
•  An employer is not required to lower quality or production standards to make an accommodation. However, an employer may have to provide reasonable accommodation to enable an employee with a disability to meet the production standard. 
•  An employer is not obligated to find a position for an applicant who is not qualified for the applied-for position.
•  An employer is not obligated to provide personal use items such as prosthetic limb, a wheelchair, glasses or hearing aids.
•  An employer is not required to provide personal use amenities, such as a hot pot or refrigerator, if those items are not provided to employees without disabilities. However, items that might otherwise be considered personal may be required as reasonable accommodations where they are specifically designed or required to meet job-related rather than personal needs.

While the ADA has had a tremendous effect, advocates for the disabled point out that it cannot change everything. We cannot know what an employer is truly thinking, and it is hard to prove that an employer chose not to hire someone based on his or her disability. A recent Newsday article (Disabilities act has changed lives of millions 25 years after passage) stated:

A quarter-century after ADA's passage, joblessness among disabled Americans remains far higher than for other adults. Just 17.1 percent of people with a disability were employed in 2014, compared to 64.6 percent of those without a disability, according to the latest federal figures. 

Work is just part of a person's life. The ADA also provided rules for state and local government activities, public transportation, public accommodations and telecommunications relay services. I'll discuss those topics in the future.

The Last Word ... Maybe

No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.

Obergefell v. Hodges

Majority Opinion by Justice Anthony Kennedy

You might remember that there were several states and organizations that suggested that the Supreme Court ruling in Obergefell v. Hodges was not official until after the 25-day period for requesting rehearing had passed. That period elapsed on July 21, and after waiting another week for any requests that had been mailed, the Court issued its final order yesterday.

See Same-sex marriage ruling put into formal effect for more information on the final order and a link to the final order.

To read my earlier blogs about the Obergefell decision, see Goin' to the Chapel and We're Gonna Get Married and Wedding Bell Blues.

Wedding Bell Blues

Before the risin' sun, we fly

So many roads to choose

We'll start out walkin' and learn to run

And yes, we've just begun

Sharing horizons that are new to us

Watching the signs along the way

Talkin' it over, just the two of us

Workin' together day to day

Together

~The Carpenters

We've Only Just Begun

When the Supreme Court announced its decision finding that same sex couples had the right to marry (Obergefell v. Hodges), reaction around the country was predictably mixed. 

The White House was lit up in rainbow colors to commemorate the ruling. There were public celebrations outside the U.S. Supreme Court building, and around the country. U.S. and rainbow-striped flags were unfurled. Same-sex couples rushed to apply for marriage licenses. Finally, same-sex couples had the same rights as heterosexual couples. They would be eligible for the same spousal benefits, privileges and responsibilities that heterosexual couples had through marriage. Supporters of same-sex marriage declared that it was "a great day for America!"

Not everyone celebrated the decision, however. Some objected on moral grounds. Others worried about clergy being forced to go against their religious beliefs to perform marriages for same-sex couples. Many challenged the right of five lawyers to decide the issue, rather than allowing the people of each state to determine the definition of "marriage" for their state. Still others accused the Supreme Court of rewriting the Constitution. Some lamented that the world was coming to an end. Others worried that the next step would be polygamy.

One side of the debate posits that the framers of the Constitution did not intend to sanction same-sex marriage. They extend the argument to include the Fourteenth Amendment, which was adopted nearly 80 years after the Constitution. The other side of the debate points out that the Constitution was intended to be a malleable document that could be adapted with time.

Much of the same-sex marriage debate centers on the Fourteenth Amendment, which states that no state shall "deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." Due process? Equal protection? What in the world does that mean?

The key phrase here is "equal protection." Merriam-Webster defines equal protection as "a guarantee under the Fourteenth Amendment to the United States Constitution that a state must treat an individual or class of individuals the same as it treats other individuals or classes in like circumstances." In relation to marriage, the Court read this to mean that same-sex couples who want to marry are a class of individuals who must be treated the same as heterosexual couples, another class of individuals, who want to marry.

The States Respond

Nearly one month after the Supreme Court ruling, the debate has not quieted, particularly in the following states:

Alabama--The Alabama Supreme Court responded to Obergefell by issuing an order suspending same-sex marriages in Alabama for 25 days to give parties time to file motions addressing the ruling. As the 25-day period passed, at least nine Alabama counties were refusing to issue marriage licenses to any couples, gay or heterosexual, according to a survey by The Associated Press. 

Louisiana--After the U.S. Supreme Court ruling in Obergefell, the Louisiana attorney general, Buddy Caldwell, said that nothing in the decision required the State to cease enforcing its same-sex marriage ban immediately. Gov. Bobby Jindal twice delayed the recognition of same-sex marriage by the Louisiana state government by waiting for lower courts to specifically rule on Louisiana's definition of marriage as between one man and one woman. However, as of July 6, all parishes in the Louisiana must issue marriage licenses to all couples.

Tennessee--Gov. Bill Haslam and Attorney General Herbert Slatery III said they would respect the Court’s decision, although they said it robbed Tennesseans of their voice and vote. Legislators in the State, however, are not as accepting. Some want the State to consider allowing state employees who object to same-sex marriage to refuse to serve same-sex couples. Others are planning legislation to protect pastors from being forced to officiate same-sex marriages, although neither state nor federal law requires clergy to officiate any wedding.

Texas--By far, the most resistant state is Texas. Texas Attorney Gen. Ken Paxton sent out a letter informing state officials that they had the option of not complying with the Supreme Court's ruling if they so choose. Sen. Ted Cruz claimed that the Supreme Court decision was only binding for the parties directly involved in the case. (This is simply wrong.) Cruz went on to suggest another Constitutional amendment that would make members of the Supreme Court subject to retention elections.

County clerks found various ways to avoid issuing marriage licenses, from suggesting that they needed to get paperwork in order to resigning, quitting or, in one case, retiring. One county judge created a form that same-sex couples would have to sign acknowledging that the judge does not want to conduct same-sex marriages and that the couple agrees not to discuss the topic of same-sex marriages with the judge before, during or after the ceremony.

And the rest--Officials in Arkansas, Georgia, Kentucky, Mississippi, Nebraska, North Dakota, Ohio and South Dakota begrudgingly accepted the Court's ruling, but made clear their disagreement with the Court. Many expressed the belief that the Court had overstepped its authority and that the issue should have been left to the states to decide. Several states claimed that the ruling was not immediately effective.

Religion

It should come as no surprise that many religious denominations oppose same-sex marriage. Among the religions formally opposed to same-sex marriage: Mormonism, Catholicism, Lutheran Church-Missouri Synod, the majority of Evangelical churches, Orthodox Judaism and Islam.

In recent years, some Christian denominations have voted to allow their clergy to perform same-sex weddings. This includes the Episcopal Church, the Presbyterian Church and the Evangelical Lutheran Church. In addition, the Conservative and Reformed Judaism Movements sanction same-sex marriage.

Other religious groups, including my own, are sharply divided on the subject of same-sex marriage. United Methodist Clergy have been making headlines for violating church rules by performing same-sex marriage or civil union ceremonies since the late 1990s. However, at its most-recent General Conference in 2012, the worldwide church voted to continue its stance on homosexuality and same-sex marriage. For more on the debate within the United Methodist Church, see How the Supreme Court Gay Marriage Ruling Could Destroy the United Methodist Church and Will Same-Sex Marriage Split the United Methodist Church?