Protecting the civil rights

of people with newsletter through , Issue No. 7 • Summer/Fall 2010 advocacy and increased

access to legal services.

Federal Jury in Maryland Awards $225,000 in Discrimination Case inside 2 Fund Helps Resolve or the past few years, the Epilepsy In September 2006, the department Discrimination Foundation has received numerous ordered Blake to submit to a neurologi- Cases reports about police department cal electroencephalogram (EEG) and a F 3 The Advocates’ practices of screening out can- fitness for duty examination without didates and incumbent officers based solely reviewing his personnel file or medical Corner — Medical Inquiries on their history of . The Foundation history. The department’s request came believes blanket screening policies are shortly after Blake provided supportive 5 Cooperating unlawful because such policies abrogate an testimony on behalf of his colleague, Attorney Profile employer’s obligation under the Americans Philip Crumbecker, who was challenging with Disabilities Act (ADA) to individually a forced after also experienc- 6 New Resources evaluate whether an applicant or employee ing a on the . Blake testified is qualified for a position with or without at Crumbecker’s hearing before the County The Legal Defense Fund an accommodation. Board of Appeals that he also suffered a (a program of the Epilepsy In most instances, candidates and “potential seizure” while on duty, but was Foundation®) provides incumbent officers are screened out by later able to perform his duties without legal guidance to individuals employers who fail to conduct individual- opposition from the department. Blake experiencing epilepsy- ized assessments of their existing ability to submitted to the department’s order to related discrimination and safely perform in these positions. In other report for the fitness for duty examination their families, along with instances, officers who have been seizure without waiving his right to pursue legal referrals and legal support free for several years are targeted for med- action against the department. The to a nationwide network ical inquiries by police departments. This County’s doctor determined that Blake of cooperating law offices. was the case in the matter of Blake v. suffered a single seizure or seizure like The Fund was established Baltimore County Police Department. Blake, episode and “there [was] no basis to prevent in memory of Jeanne A. an undercover intelligence officer with the Officer Blake from continuing his work as Carpenter, a lawyer, department, experienced a single seizure on a police officer.” Despite the doctor’s report, Board the job in 1996. He was released by doctors the department ordered Blake to submit to member, and a person to return to work three weeks after the a compelled EEG. Blake filed a charge of with epilepsy. seizure. He never showed any further evi- discrimination with EEOC and later a law- dence of illness or inability to perform his suit, asserting that the Baltimore County job duties. continued on p. 2 2 T employees…. the rightsof of violating have apractice County officials Baltimore whether to review investigation opened an of Justicealso Department SUMMER/FALL 2010• EPILEPSYLEGAL DEFENSE FUNDNEWSLETTER JACELDF he U.S. Resolve MajorDiscriminationCases The LegalDefenseFund and HelpsFile Maryland ADA Case Maryland 2010. After asixdaytrial,thejuryawarded Court fortheDistrictofMarylandinApril from furtherretaliatoryactions. ical testingrelatedtothe1996incidentand stop thedepartmentfromcompellingmed- He alsosoughtapermanentinjunctionto police department’srequestwasretaliatory. epilepsy andwithoutanyadequate consid- but wasdeniedtheposition becauseofhis the St.LouisCountyPolice Department, position asaciviliansecurity officerwith Human RightsAct. Farmer appliedfora this lawsuitfiledundertheMissouri A confidentialsettlementwasreachedin Farmer v. CountyPolice St. Louis Department. without theneedtofilealawsuit. work attorneynegotiatedasettlement er’s physician.ALegalDefenseFund net- despite medicalclearancefromtheemploy- failed toplaceJ.B. inthepositionoffered employer aboutstartingwork,thecompany medication. WhenJ.B. contactedthe epilepsy, whichwaswell-controlledwith lege graduation.J.B. disclosedthathehad Sugarland, TXtocommenceuponhiscol- Chemical Engineerwithacorporationin In re:J.B.: J.B. wasofferedajobasField Cases [email protected]. other pleadings,contacttheFund at ing attorneys,andforcopiesofbriefs other caseshandledbytheFund’s cooperat- tion. For moreinformationabouttheseand ing personswithepilepsyfightdiscrimina- T The casewenttotrialinU.S. District provided supporttoattorneyshelp- in whichtheLegalDefenseFund has he followingaresomerecentcases • continued fromp.1 Crumbecker. attorney network,representsBlakeand a memberoftheLegalDefenseFund’s employees undertheADA. KathleenCahill, have apracticeofviolatingtherights review whetherBaltimoreCountyofficials Justice alsoopenedaninvestigationto Blake $225,000.TheU.S. Departmentof accommodate, unlawfuldisclosure ofhis Employment Act (ADEA)forfailureto ADAAA andtheAgeDiscriminationin ing unlawfuldiscriminationunderthe ney filedalawsuitonSmith’sbehalfalleg- dation wasreasonableornecessary. process todeterminewhethertheaccommo- company failedtoengageintheinteractive requested anaccommodation,butthe other employees.Additionally, Smith geezer,” infrontof andlabeledas“crazy” and“old was referredtoas“seizureboy” his conditiontootheremployees.Smith to hissupervisor, whounlawfullyrevealed years later. Smithdisclosedhiscondition 2006. Hewasdiagnosedwithepilepsytwo services companyasaSalesmaninMarch (ADAAA). Smithwashiredbyapersonnel under theADA AmendmentsAct This lawsuitistheFund’s firstcasefiled Smith v. ConsolidatedPersonnel Services,Inc. a LegalDefenseFund cooperatingattorney. without incident.Thiscasewaslitigatedby cessfully employedinasimilarcapacity (seizures whilesleeping),andhadbeensuc- time, experiencedonlynocturnalseizures neurologist, hadbeenseizure-freeforsome who wasclearedforworkbyhistreating eration ofhisfitnessforthejob.Farmer, A LegalDefenseFund networkattor- continued onp.4 THE ADVOCATES’ CORNER Medical Inquiries central issue in the Blake case was a medical should request a copy of the job description so that inquiry. Title I of the ADA severely limits he is aware of the specific job duties. After obtain- A medical inquires by employers. Employers ing the job description, the doctor can prepare a cannot ask about medical conditions whenever they detailed opinion letter regarding the person’s med- want, nor can they ask about medical conditions on ical fitness to perform the job duties. Some employ- employment applications. Under the ADA, medical ers ask doctors to respond to a standardized med- inquiries are prohibited prior to an offer of employ- ical inquiry form. However, it is best for doctors to ment. The ADA does not allow for medical attach an opinion letter that best describes the inquiries for job applicants after a conditional offer patient’s health condition and employability. The of employment is given. After employment begins, letter should include information about the employers can make medical inquiries but certain patient’s seizure precipitants, seizure warning signs, restrictions apply. The ADA’s restrictions on med- seizure manifestation, recovery times, first aid for ical inquiries apply to all employees, not just seizures and recommendations for reasonable employees with disabilities. These provisions reflect accommodations. Congress’s intent to protect the rights of all Doctors responding to medical inquiries should employees from medical inquiries that do not serve avoid using broad, vague statements in their a legitimate purpose. responses. For example, statements such as The law says that an employer’s medical “employee should avoid duties that put him/her at inquiry must be job-related and consistent with risk” or “employee is barred from climbing or business necessity. This means that the employer heights” are vague and can be problematic because must reasonably believe, based upon objective evi- employers use them to justify the disqualification of dence, an employee’s medical condition poses a sig- employees and job candidates. Instead, doctors nificant risk to the health and safety of himself or others should highlight the employee’s ability to perform or the medical condition will impair his ability to per- the essential job duties and include recommenda- form essential job functions. Medical inquiries may also tions for reasonable accommodations (e.g., safety be allowed under the ADA under other circum- belt/harness, rubber matting around work area, stances such as to evaluate or validate the need for helmet). Doctors can get additional suggestions of a workplace accommodation or if the employee’s workplace accommodations for people with epilepsy medical condition is attributed to work perform- from the Job Accommodations Network website ance issues. (http://askjan.org/media/epilepsy. html) and view Employees and job candidates with epilepsy are sample medical response letters on the American often sent to occupational doctors who have a con- website (http://www.aesnet.org/go/ tractual relationship with employers. In most cases, practice/practice-tools/epilepsy-and-employment- these doctors have limited knowledge about epilep- resource-central/physician-s-guide-responding-to- sy and the individual’s unique medical condition. work-site-safety-issues). These doctors often classify employees or job candi- When in doubt about whether a medical dates unfit for duty, usually citing safety reasons. In inquiry is appropriate, an employee should always these situations, the person’s neurologist is the best consult an experienced attorney about his legal person to counter the employer’s attempt to dis- rights and any recourse available. Employees or job qualify the employee or applicant. applicants with questions may contact the Legal Defense Fund (www.epilepsylegal.org) for assistance. Doctors Responding to Medical Inquiries Information provided is based on guidance issued by the Before responding to medical inquiries, a doctor EEOC (www.eeoc.gov) and AES (www.aesnet.org).

EPILEPSY LEGAL DEFENSE FUND NEWSLETTER • SUMMER/FALL 2010 3 Discrimination Cases • continued from p. 2 Access to Medication in Schools confidential medical information, wrongful and Childcare discharge, and hostile work environment. In re: I.W. The Legal Defense Fund recom- This case is pending before the U.S. District mended that a parent file a complaint with Court for Arizona. the Louisiana Department of Education after her child, I.W., was denied access to a public Arrest for Seizure Related Behavior preschool by a local school board because In re: P.M.: P.M. was tasered, beaten by the school lacked a nurse to administer police, and arrested after experiencing a Diastat. The school district offered a more tonic-clonic seizure while parked along the restrictive school setting or home schooling side of the road in Palo Alto, California. He as an alternative; however, the parent was charged with drunk driving and willful- refused. The parent of I.W. placed her in a ly resisting arrest. Medical testing at a local private school setting at her own expense and filed the complaint. The department determined that the school district failed to How the Fund Can Help provide a free and appropriate public educa- tion (FAPE) in the least restrictive environ- Consumers: Individuals experiencing discrimination related to epilepsy ment by denying the student’s enrollment and their representatives are invited to request legal guidance or a refer- in the preschool program and offering only ral to an attorney through the Fund’s Web site, www.epilepsylegal.org, self-contained or home services. The school or by calling 1-800-332-1000. The Fund’s staff will provide prompt legal district was required to reimburse the parent guidance and determine whether a referral to a lawyer is necessary for for the expense of having to place the stu- direct legal advice or representation. The lawyers to whom the Fund dent in a private school. I.W.’s parent is cur- rently negotiating with the school to admin- refers cases have agreed to provide an initial consultation and services to ister the medication for this school year. She a maximum of three hours at no cost is receiving assistance from a Legal Defense Attorneys: Those representing persons experiencing epilepsy-related Fund network attorney. discrimination may contact the Fund for assistance via email (legalrights @efa.org) or by calling 301-459-3700. The Fund can provide a variety In re: A.W: A.W, who was diagnosed with of resources such as: legal research, briefs, case lists, expert referrals, epilepsy in July 2008, was prescribed and medical information. In cases of national significance, we can con- Diastat. She attended a federally funded program in New York City. The sider filing an amicus brief and/or providing a grant to help defray liti- child care center refused to administer gation costs. For more information, see http://epilepsyfoundation.org/ Diastat, which caused A.W’s parent to wait epilepsylegal/attyresources.cfm. at a nearby café daily to be available to Accepting Case Referrals: Individual attorneys and law offices that wish administer the medication if necessary. With to assist the Fund by accepting case referrals may register with the Fund the assistance of the Legal Defense Fund’s on-line directly from the Fund’s Web site. Simply go to www.epilepsyle- network attorney and the Department of gal.org, click on “Register as an Attorney,” and provide the requested Justice, the child care center agreed to change its policies and practices to provide information. Soon after a registration is completed, the Fund sends out a reasonable accommodations to children with welcome materials with resources and background information. epilepsy or similar medical conditions that may require medications such as Diastat.

hospital revealed that only antiepileptic Higher Education drugs were in his system. With technical In re: C.H.: C.H, a photography student at assistance from the Fund, P.M’s attorney the Art Institute of Colorado, was not was able to get the charges dismissed. allowed to return to school after she with- drew the previous semester to get her

4 SUMMER/FALL 2010 • EPILEPSY LEGAL DEFENSE FUND NEWSLETTER JACELDF 5 anaging those M components — legal, medical, and the human story — to also is the key navigating the litigation process…. continued on p. 6 tial medical issues, while casting the case as a compelling, accessible human story that will resonate with the jury. Balancing those three components — — legal, medical, and the human story makes practicing in this area extremely my interesting and demands the most of analytic and advocacy skills. Managing those components — legal, medical, and the human story — also is the key to navigating the litigation process, in particular avoiding summary judgment and convincing the court to give good to con- jury instructions, and ultimately, veying my client’s story in a compelling way that moves the jury to deliver full justice. inquiries, it is important to bear in mind that few courts have encountered this A prohibited or “niche” of the ADA. excessive medical inquiry can be seen as a mere technical violation, of little con- sequence compared to loss of employ- ment or failure to hire. It is critical to California Police Department on behalf of Department Police California Wells of a man with epilepsy. the parents by police after and restrained was tasered having because he was were called EMTs was reports, Wells to a seizure. According of confusion when he in a a neighbor’s home. attempted to enter was not responsive to the When Wells they immediately tried officers’ commands, striking him with a to subdue him by and handcuffing him baton, tasering him kneeling on him. behind his back while the cause of death The evidence indicated of the was asphyxiation (allegedly the result restraint). The parties reached a confidential settlement in June 2010. • In the more esoteric area of medical EPILEPSY LEGAL DEFENSE FUND NEWSLETTER • SUMMER/FALL 2010 EPILEPSY LEGAL DEFENSE FUND NEWSLETTER • SUMMER/FALL The Legal

he Legal Defense Fund acknowledges he Legal Defense Fund Kathleen Cahill, a Baltimore, for her commit- Maryland attorney, ous. One should dedicate himself equally to the rigors of managing the challenging legal issues and the substan- Ms. Cahill began her over 25 Ms. Cahill shared her thoughts about

T Cooperating Attorney Profile Cooperating Attorney Defense Fund provided technical assistance Defense Fund to attorneys who filed a wrongful death action against the Stanislaus County First Responder Wrongful Death Settlement Death Wrongful Responder First of Stanislaus, et al. County v. Wells seizure activity under control. When she under control. seizure activity next semester, to register for the attempted not return that she could she was told guarantee that neurologist could unless her 100% seizure free during she would remain A Legal Defense Fund the school year. set up mediation with cooperating attorney Colorado Civil Rights the school and the were resolved and she Division. The issues to the Art Institute. was allowed to return • The most critical thing is to be dexter- ment to advocating for employees in all ment to advocating for employees in dis- areas of employment rights, including ability discrimination. She also represents victims of sexual assault, medical malprac- tice, and other serious injuries. years ago at Piper & Marbury (now DLA a couple of years with Piper Piper). After she founded her own law firm where she has successfully resolved many disputes through negotiation, mediation or litigation. Most Ms. Cahill successfully represented recently, a Baltimore County police detective in a employment case in which federal ADA the Court found in favor of her client. litigating employment discrimination cases in which an employer’s medical inquiries are at issue. Attorney Profile • continued from p. 5 terminated looms large, making the elevate the perceived minimal impact employee more frantic to comply. It is a of the violation in the eyes of the judge worthy ambition to spread the word to and ultimately the jury. workers, particularly those with a dis- ability, medical issues or a history of • What is most striking and motivating either, that they do have legal rights about this area of the ADA is that there when ordered to turn over medical is no other scenario where an employee information or submit to a medical suddenly ends up all alone before an at the hands of the employ- agent of the employer to be “grilled” er’s chosen healthcare provider. Interest and physically probed, where there are groups and lawyers can then be called no procedural safeguards or balance, upon to provide information about the and usually no sense that the employee targeted worker’s rights before damage has any rights at all. And yet the area is done. This would serve the end of of scrutiny — confidential medical balancing this woefully unlevel playing information and bodily integrity — is field. Otherwise, many workers will more sacrosanct than most. Add to that continue to surrender their precious that when these medical inquiries or medical privacy in a desperate attempt compelled “fitness-for-duty examina- to save their employment, with only a tions” transpire, the prospect of being few left to fight about it after the fact, often from a position of .

New Resources for Consumers and Their Advocates In addition to managing her law firm, Ms. Cahill teaches trial advocacy at the University of Baltimore School of Law. Factsheet for Merchant Mariners with History of Seizures.The She is also the current Chair of Maryland Fund has prepared a factsheet to assist Merchant Mariners who are Employment Lawyers Association (“MELA”). applying for or requesting license renewal through the National Furthermore, Ms. Cahill has been selected Maritime Center (NMC), a division of the United States Coast Guard. as a Super-Lawyer, as Baltimore’s Best The NMC is tasked with licensing and credentialing Merchant Employment Lawyer, and for inclusion in Mariners. The factsheet provides information on how merchant The Best Lawyers in America. mariners can appeal the denial of a license renewal. The Fund appreciates Ms. Cahill’s commitment to workplace fairness and her Fact Sheet on Family Medical Leave Act. The Foundation has advocacy on behalf of people with epilepsy. issued an updated fact sheet summarizing the Family Medical Leave Act (FMLA) which is the federal law that protects the of people Written by Cherree Sanders, the Fund’s who must take time off from work for treatment of serious medical Case Coordinator. conditions.

See http://epilepsyfoundation.org/epilepsylegal/LegalFactSheets.cfm for updated factsheets.

6 SUMMER/FALL 2010 • EPILEPSY LEGAL DEFENSE FUND NEWSLETTER EPILEPSY LEGAL DEFENSE FUND NEWSLETTER • SUMMER/FALL 2010 7 DONATING TO THE FUND

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newsletter

DEFENSE FUND LEGAL ADVISORY BOARD EDITOR Alexandra K. Finucane, Esq. Jeanne A. Carpenter Epilepsy Kathleen A. Behan, Esq., Washington, DC Legal Defense Fund Joyce A. Bender – ex-officio, Chief Executive Officer, Bender Consulting Services, Inc., Pittsburgh, PA PUBLISHER Epilepsy Foundation Claudia Center, Esq., Senior Staff Attorney, Legal Aid Society, 8301 Professional Place San Francisco, CA Landover, MD 20785 Dennis DeCaro, Esq., Partner, Kupets & DeCaro, Chicago, IL 301-459-3700 Leonard Dubin, Esq., Los Angeles, CA [email protected] www.epilepsylegal.org Leslie Margolis, Esq., Managing Attorney, Maryland Disability Law Center, Baltimore, MD A.G. Newmyer III, Palm Beach Gardens, FL Matthew R. Schneider, Esq., Managing Director, Garvey, Shubert & Barer, Washington, DC Laurence A. Silverman, Esq., Partner, Covington & Burling, New York, NY

8 SUMMER/FALL 2010 • EPILEPSY LEGAL DEFENSE FUND NEWSLETTER