Americans with Disabilities Act Accommodation for EHS

[Luvapottamus]

My question involves a consumer law issue in the State of: Oklahoma

I have been diagnosed with EHS:

http://www.electronicsilentspring.co...C-Brussels.pdf

It's considered a functional impairment under the ADA, and I need reasonable accommodations from public utilities so that I can have Natural Gas and electric service using a safe analog meter, not a smart meter.

I have requested accommodations from both utilities and was refused accommodations.

Now what do I do?

I have contacted local disability attorneys but none of them knew what to do. "We can get you on disability payments, but that's all we know how to do."

Haha

[cbg]

What accommodation did you request?

[hr for me]

what exactly is a "functional impairment"? ADA defines disabilities and physical/mental impairments. Where does this fall?

have you provided direct medical diagnosis from a personal doctor who has seen you specificially or are you just providing that report to them? Have you proved that you specifically have this disability (and that it is actually a disability that is diagnosed vs one paper from one medical doctor)? Are there other reasonable accommodations that would solve the issue vs an analog meter? I am not going to read your whole link, but could the smart meter be relocated? What exactly have you requested and how? You can't just state you have an issue and require them to do exactly what you want.

Do these utility providers even have analog meters in service anymore? Do they have the training/ability to read them? Would they have to hire a specific new employee to do so? They can offer other alternatives (and maybe even none if you haven't provided the information above in a personalized manner)

[PayrolGuy]

Who diagnosed you?

[cbg]

Here is the answer I gave you in your other thread:

How do I compel accommodation from utilities and the library so I can have fair access to services?

The ADA permits the entity you are claiming a accommodation from to require medical proof. Not just that the condition exists, but that you have been diagnosed with it AND that an accommodation is required.

So the first thing you do is provide them with written confirmation from a doctor who has physically seen you and examined you, diagnosed you with the condition, confirmed the need for a accommodation, and provided suggestions of reasonable accommodations (with the key word being reasonable) that the library and utilities could provide. Until you provide such proof, they have no legal obligation to pay any attention to you.

BTW, just so you know, I used to teach employers about the ADA. I know whereof I speak.

[Dogmatique]

The link you provided does not prove that you have been diagnosed with *anything*.

For what condition do these attorneys believe you would qualify for disability?

[PayrolGuy]

I'd bet the disability attorneys said they would TRY and get him on disability because that is what disability attorneys do.

They likely then hung up the phone and laughed.

[Dogmatique]

I'd like to add this link for anyone interested. It's an easy read and it includes what I think is important information to consider, concerning the results of double-blind studies.

[Taxing Matters]

The first problem is that this may not be something that is covered by the Americans with Disabilties Act (ADA). The ADA applies to (1) employers when dealing with their employees, (2) state and local government programs, including public transportation systems, and (3) places of public accommodation.

Are the utilities involved owned and operated by the government? If so, then we would have to look at the rules for (2) to determine if they had to provide what you are asking for. If they are private businesses, then we have to look at (3), the rules for public accommodations.

A place of public accommodation does NOT mean all businesses. It has a more narrow definition. A place of public accommodation is defined by the Act as follows:

(7) Public accommodation

The following private entities are considered public accommodations for purposes of this subchapter, if the operations of such entities affect commerce

(A) an inn, hotel, motel, or other place of lodging, except for an establishment located within a building that contains not more than five rooms for rent or hire and that is actually occupied by the proprietor of such establishment as the residence of such proprietor;

(B) a restaurant, bar, or other establishment serving food or drink;

(C) a motion picture house, theater, concert hall, stadium, or other place of exhibition entertainment;

(D) an auditorium, convention center, lecture hall, or other place of public gathering;

(E) a bakery, grocery store, clothing store, hardware store, shopping center, or other sales or rental establishment;

(F) a laundromat, dry-cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a health care provider, hospital, or other service establishment;

(G) a terminal, depot, or other station used for specified public transportation;

(H) a museum, library, gallery, or other place of public display or collection;

(I) a park, zoo, amusement park, or other place of recreation;

(J) a nursery, elementary, secondary, undergraduate, or postgraduate private school, or other place of education;

(K) a day care center, senior citizen center, homeless shelter, food bank, adoption agency, or other social service center establishment; and

(L) a gymnasium, health spa, bowling alley, golf course, or other place of exercise or recreation.

42 U.S.C. § 12181(7). You will note that none of the sorts of places listed in the ADA as a place of public accommodation is a utility providing service to your home. They are instead physical places that disabled customers go to and need to be able access. The basic idea of the law was to provide people in wheel chairs and others with disabilities the ability to access stores, restaurants, theaters, museums, zoos, etc so that they can access those services like anyone else. Read literally, is limited to situations in which the business is providing goods and services at some physical location (store, office, etc) of the business. However, other courts have read the ADA more broadly to state that businesses are places of public accommodation so long as they fit into one of the types of businesses listed, even if the actual goods or services are not provided at a physical location of the business.

Two cases against the same company, Netflix, by deaf customers, illustrates the differing opinions of the courts on this. In both cases the deaf customers sued to require Netflix to provide instantaneous closed captioning to all programs Netflix offered on its website streaming service. A California district court held that the ADA is limited to services provided in a physical place of business, and thus ruled in Netflix’s favor. “The Netflix website is not ‘an actual physical place’ and therefore, under Ninth Circuit law, is not a place of public accommodation. See Weyer, 198 F.3d at 1114. Because the website is not a place of public accommodation, the ADA does not apply to access to Netflix's streaming library.” Cullen v. Netflix, Inc., 880 F. Supp. 2d 1017, 1024 (N.D. Cal. 2012). On the other side of the country, a Massachusetts district court held that the ADA did not just apply to goods and services provided at a physical location of the business:

In a society in which business is increasingly conducted online, excluding businesses that sell services through the Internet from the ADA would

run afoul of the purposes of the ADA and would severely frustrate Congress's intent that individuals with disabilities fully enjoy the goods, services, privileges and advantages, available indiscriminately to other members of the general public.

Id. at 20.

Nat'l Ass'n of the Deaf v. Netflix, Inc., 869 F. Supp. 2d 196, 200 (D. Mass. 2012).

The problem for you here is this: the Supreme Court has not yet resolved this conflict, and I find no cases on the subject from the Tenth Circuit, which is the federal appeals circuit that includes Oklahoma. As a result, it is very much an open issue right now which way the Tenth Circuit or Supreme Corut would go. If the decision is that the ADA applies only to goods and services provided at physical locations of businesses you would lose, as the California plaintiffs did in suing Netflix. On the other hand, if they were to side with the approach taken by the Massachusetts court, then the utility might well be declared a place of public accommodation and thus subject to the ADA.

Even if the broader interpretation is correct, a utility is not expressly listed in the types of places that are public accommodations. You would have to argue that it fits in (F) as a “service establishment.” It is an open question whether that would be included within that definition. I see no cases that clearly address that part of it, but I suspect that it a utility would be considered a service establishment.

If you get to the point where the utility is determined a place of public accommodation, the issue then is what the business must do for you. Note that a place of public accommodation has several obligations under the ADA, but it does NOT have the requirement to provide a “reasonable accommodation.” That is a requirement that employers have with respect to disabled employees. The rules for what a place of public accommodation have to provide is different.

The focus of the ADA for places of public accommodation is allowing a disabled customer access to the goods and services that the business offers equal to the access that non disabled customers would enjoy. In general, a place of public accommodation cannot, with some exceptions, (1) deny access to goods and services to a customer because of the customer's disability; (2) provide goods and services to a disabled person that are not equal to the the goods and services offered to other customers; (3) provide goods and services to disabled persons separately from those provided to other customers. See 42 U.S.C. § 12182(b)(1). More specifically, illegal discrimination for a place of public accommodation includes:

(ii) a failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations;

(iii) a failure to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden;

42 U.S.C. § 12182(b)(2)(A)(ii).

On the face of it, providing you with the same meters as any other customer would not be denying you equal service because of your disability. However, you might argue that providing meters that might aggravate your disability does not allow you to enjoy the company’s services on an equal basis with non disabled customers because other customers enjoy the service without detriment to their health and you should enjoy that same service. In other words, how you frame what constitutes equal access to the services would be quite important. Finally, there would be the issue of whether what you ask for would place an “undue burden” on the utility. “Defendant's argument overlooks the fact that the ADA also recognizes the need to take economic hardship into account when determining the extent of a defendant's duties. See 42 U.S.C. § 12182(b)(2)(A)(iii) (creating an “undue burden” exception under the ADA).” Nat'l Ass'n of the Deaf v. Netflix, Inc., 869 F. Supp. 2d 196, 205 (D. Mass. 2012).

The bottom line is that under the law as it currently stands, it is unclear that the utility is even covered by the ADA. And assuming that it is, it is not clear whether what you seek is something that the utility must provide to you.

Note that all you can seek in a suit against the utility is injunctive relief, i.e. an order to provide you with the meters you seek, as well as attorney's fees. You cannot win money damages.

Try looking for lawyers experienced in suing places of public accommodation for advice and help. Since there is no case law in the tenth circuit on this, you may expect that litigation could be extensive and take years to conclude while you establish the precedent that would apply in that circuit.

BTW, just so you know, I used to teach employers about the ADA. I know whereof I speak.

Understand, though, that the rules for places of public accommodation are quite different from the rules that apply to employers.

[cbg]

Understood. I know more about the ADA in the employment sense and but I'm not totally without experience in the public accommodation sense.