Wednesday, February 4, 2009

The Supreme Court Asked to Decide Employment Rights of Job Applicants with Disabilities

On July 31, 2007, Charles Littleton, Jr., a young Birmingham, Alabama, man filed a petition with the United States Supreme Court asking the court to hear his lawsuit against Wal-Mart.

The case raises questions of national importance regarding the employment rights of people with disabilities. The lower courts are in deep conflict over an issue in the case which particularly affects people with mental retardation, that is, how to define “disability.”

In March, 2003, Mr. Littleton applied to work as a cart pusher at the Leeds, Alabama Wal-Mart. Due to his disability, he has difficulty in formal questioning and relating, such as in an interview, and in understanding and answering questions. The store agreed that his job coach could be present to assist him in the interview but Wal-Mart violated the agreement, and sent Mr. Littleton’s job coach from the room when the interviews took place. Wal-Mart denied him the job due to what it called “poor interpersonal skills.”

The lower courts ruled against Mr. Littleton, finding that he is not “disabled” under the Americans with Disabilities Act.

The petition for certiorari asks the Supreme Court to resolve a question on which the courts of appeals nation-wide have come to different conclusions: are substantial limitations on “social interaction” or “interpersonal skills” (such as those in mental retardation) a major life activity which entitles a disabled person to coverage under the ADA? It also asks the court to recognize that the lower courts were wrong when they ruled that Mr. Littleton is not disabled under the ADA.

The impact of the ADA on the Nation’s commerce, consumers and people with disabilities is immense. People are now productive in our economy who would in the past have been excluded. Census 2000 counted 49.7 million non-institutionalized people with a long lasting condition or disability, including 33.2 million aged 16 to 64, of whom 6.8 million have a mental disability. Also, 21.3 million people in the 16 to 64 age group were found to have a condition that affected their ability to work at a job or business. 6.7 million in that age group have a mental disability.

People with mental retardation comprise a substantial part of our Nation’s population. There are 4.56 million people with mental retardation and developmental disabilities (MR/DD) in the United States. Total federal, state and local spending for MR/DD services in FY 2002 was $34.6 billion.

The Americans with Disabilities Act of 1990 (ADA), capped national efforts to effectuate civil rights protection for Americans with Disabilities.. Congress intended the act to change behaviors affecting a vulnerable minority, akin to legislation to overturn racial discrimination. President Bush referred to the ADA as an “historic new civil rights Act.” Senator Tom Harkin, a key sponsor, described it as the “20th century Emancipation Proclamation for all persons with disabilities.” Senator Robert Dole called it “the most comprehensive civil rights legislation our Nation has ever seen.”

With the assistance of job coaches, such as that afforded to Mr. Littleton, doors to employment have opened through what is called “supported employment.” Supported employment is paid, competitive work for people who have severe disabilities and a demonstrated inability to gain and maintain traditional employment.

Earnings in supported employment are estimated to be nearly $600 million annually, with over $100 million paid by such disabled workers in federal state and local taxes; individuals with disabilities in supported employment increased their annual earnings 490%. People with disabilities in supported employment rose from about 10,000 persons in FY 1986 to 139,812 in FY 1995. The number of supported employment provider agencies grew steadily from an initial count of 324 for FY 1986 to 3,690 in FY 1995..

The attorney for Mr. Littleton is David Ferleger, Esq., Bala Cynwyd, PA., 610-668-3889.

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