Happy new year everyone!
As we turn to the new year, several of my fellow bloggers have taken a look back at the prior-year on their blogs. I thought that was an absolutely fabulous idea, and thanks to metrics, something that can be easily done. So here are the top 12 most popular Understanding the ADA blog entries of 2014 as determined by you the readers. I do have a greatest hits section as everyone knows, but that section is a quarterly report. What follows in reverse order, is the most popular blog entries of the year.
12. Are public colleges and universities able to use sovereign immunity as a defense to ADA lawsuits? The case discussed in this blog entry is significant because it found that sovereign immunity does not apply in the educational context even though persons with disabilities are not in a higher class for equal protection purposes;
11. Is a temporary disability covered by the ADA? In this blog entry, we find out that temporary disabilities can indeed be protected under the actual disability prong of the ADA and that the transitory and minor exception applies to the regarded as prong only;
10. Does a resignation end the employer’s duty to accommodate the person who resigned? In this particular blog entry, we find out that just because an employee resigns, does not mean that the employer is off the hook if they refuse to engage in the interactive process;
9. Is indefinite medical leave a reasonable accommodation? In this blog entry, which actually links back to a prior blog entry as well, we find out that indefinite medical leave is not a reasonable accommodation under the ADA, but one has to check state and local municipal law as well;
8. Can you get compensatory and punitive damages in ADA retaliation claims? In this blog entry, we find out that the courts are split with respect to whether compensatory and punitive damages are available in retaliation claims involving violations of the ADA. The trend, though it is not universal, is that such damages are not available. When the issue gets to the Supreme Court, Justice Alito is likely to be the swing vote.
7. The ADA and the applicable statute of limitations. In this blog entry, we discussed just how do you go about figuring out what the statute of limitations is with respect to an ADA claim, including retaliation claims;
6. Negligence/negligence per se and title III of the ADA: Opportunity for personal injury attorneys to expand their practice. In this particular blog entry, we find out that depending on how your state deals with the principle of negligence per se, using the ADA architectural guidelines as a baseline for negligence may actually help increase accessibility for persons with disabilities;
5. ADA compliance auditing: higher education version. One of the things I am seeing quite a bit is that higher education, including graduate schools, are not necessarily the best when it comes to ADA compliance. This particular blog entry offers a roadmap as to how a place of higher education can get their house in order;
4. Suing a state court system for disability discrimination: can be done but it’s complicated. This particular blog entry discusses what happens when a court system itself does not accommodate people with disabilities within the system. I have actually been involved in a case like this. In addition to what is noted in the blog entry, judicial immunity could be a real problem. Particularly so, if the system is set up so that the judges are making the decisions at to what the accommodations are rather than a non-judge administrator;
3. What do you have to show the get damages under title II of the ADA?. This particular blog entry discusses the standard for obtaining damages under title II of the ADA. The courts are not unanimous on this.
2. Service dogs v. therapy dogs. This particular blog entry discusses the difference between service dogs and therapy dogs and what that means with respect to ADA protection. I also discuss in other blog entries whether the service dog regulations could be successfully challenged as being arbitrary (the answer is no in my opinion) and the Texas approach to service dogs.
The most popular blog entry of 2014 by far (over 300 views ahead of the second most popular blog entry), as determined by you the readers is: A huge victory for ADA plaintiff employment lawyers AND a huge victory for ADA defense lawyers. This particular blog entry discusses how University of Texas Southwestern Medical Center v. Nassar is a huge victory for plaintiffs bringing title I of the ADA claims, though it is a defeat for plaintiffs with respect to retaliation claims. In particular, a reading of this decision strongly suggests that mixed motive is very much in play with respect to title I claims of the ADA, though it is probably out with respect to retaliation claims involving the ADA. That said, this particular blog entry should be read in conjunction with this blog entry, which leads to some uncertainty as to how the Supremes may ultimately decide the question of mixed motive vis-à-vis the ADA. In Sherman v. County of Suffolk , the Eastern District of New York in an opinion dated December 29, 2014 mentioned that mixed motive has not been definitively decided by the Second Circuit and that depending upon how discovery plays out, it may wind up certifying the question to the US Court of Appeals for the Second Circuit.
Happy new year everyone! I look forward to another great year of blogging and hopefully a return to the ABA blog 100 at the end of the year.