Posts Tagged ‘ ADA ’

Is Farting Protected Under ADA?

October 6th, 2015. By LucyC

Guess we’ll be finding out. Yep—we finally have a farting employee lawsuit. But what about opera singer Amy Herbst, you say? (A precedent!) Yes, true, she was a farting plaintiff as well—but she didn’t get fired. This guy got fired.

So…is it a lot of hot air about nothing? No actually. At least not from the sound of it. This poor guy lost his job because he couldn’t stop farting, and so he did what any self-respecting person would do—he’s sued is ex-employer. And, in a show of solidarity, so has his wife—they both worked for the same company—a New Jersey pork roll maker. Let’s just skip the obvious puns here.

So the back story on this is, of course, rational. Richard Clem worked as a comptroller at Case Pork Roll Co. Before the random and fairly continuous farting developed, he was obese—having reached as much as 420 pounds. In an effort to remedy this situation he underwent gastric bypass surgery in 2010.

So far, so good? Nope, afraid not. According to his lawsuit, he is suffering from constant flatulence as a side effect of the surgery. Fantastic! According to his wife’s lawsuit, Louann’s husband experiences “extreme gas and uncontrollable diarrhea” that Richard himself said made him have to “sit on a toilet 24 hours a day.” Nice. Thanks for sharing. That’s gotta put a serious kink in any plans you have—and test your relationships.

“I couldn’t go out anywhere, go to the movies, to the market, you name it, without having to look for a bathroom everywhere I went.” You think?  It’s bad enough when you get the occasional episode on the bus or in a movie theater but—any place, any time? All the time? I’d be suing the surgeon.

Now—Richard is 70 years old. He admits that his condition puts him under constant stress and mental anguish since he “couldn’t control” his “very embarrassing” issue. “Some people think it’s funny but if you have to live with my condition it’s not very funny at all,” he told The New York Post. Yes—thinking about it for even half a minute gets tediously depressing, never mind living with it.

Anyway—cut to his boss—who at some point had obviously had enough of this. Thomas Dolan, the president of Case, claims that Mr. Clem’s seeming inability to control—in any way—his flatulence and the ensuing aroma—was obviating the scent of pork rolling. OMG. I so don’t want to know anymore…

And nor did Dolan, who filed a five-page complaint with the Equal Employment Opportunity Commission that was “full of inaccuracies ” and illegally fired him, Clem said. “He did whatever he could to get rid of me,” Clem states. Ok—not taking sides here—but can you blame the guy? Especially if you’re running a food processing plant. OMG. OMG. OMG…

According to my trusty source, The NY Post, Dolan allegedly told Louann that “This can’t go on. We can’t run an office and have visitors with the odor in the office,” and “We have to do something about Rich,” the lawsuit apparently states.

When Richard attempted to explain to Dolan that his breaking wind was simply a side effect of his surgery, Dolan told him, “Oh I don’t believe that, there’s gotta be something wrong with you,” Richard said. Well, yes, actually, there is something wrong with him—it’s medical and perhaps a medical solution should be sought? More on that in a minute.

So, on February 28, 2014 Richard let out his last fart on Case territory—he was fired. The same day his wife quit Case due to all the negativity directed toward her husband. And they lawyered up.

David M. Koller, the Clem’s attorney, said he is proud of the couple. “I’m proud of my clients for being brave enough to discuss something that is personal and perhaps embarrassing and they are looking forward to the court process and will accept the results of the judicial process,” Koller said.

Richard Clem is looking for the value of three weeks paid vacation and two years’ salary which he believes will total about $250,000. The Clems are suing under the federal Americans with Disabilities Act and the state Law Against Discrimination because of her association with her husband, who was 420 pounds and had an obesity disability, according to the lawsuit.

A post script here—since being fired, Richard Clem claims to have acquired the ability to control his gas, about 90 percent of the time, by taking medications that cause him to become constipated. Oh—that’s good. Let’s hope that doesn’t backfire. Pardon the pun.

Tags: ADA, farting lawsuit, Wrongful Termination
Posted in Crazy Sh*t Lawyers See | 3 Comments »

Extortion Lawsuits? Yuba City Coughs Up $15k To Make George Louie Go Away

October 17th, 2012. By AbiK

George Louie. If you live on the east coast or do not follow news regarding the Americans with Disabilities Act (ADA) you probably haven’t heard of Mr. Louie. But PACER (Public Access to Court Electronic Records) and hundreds of businesses and attorneys sure have. In fact, if you run a case locator search over at PACER right now—even narrow your search to just civil cases—you’ll find 1,060 records for George Louie.

See, he’s one prolific lawsuit filer. He files them pro se (that is, for himself—without an attorney). And, to many, he’s like that mouse that gets in your house and after you set traps, caulk openings, and even shove steel wool into any and every infinitesimal hole—guess what? Sure as shootin’ the darn thing manages to rip open the box of Bisquick® in the pantry. Yep, he’s that kind of annoying.

Given I write for  a legal new site, LawyersandSettlements.com, I’m all for justice—and ADA compliance. But I’m not for abusing the system or drumming up lawsuits against small businesses that can potentially drive them into bankruptcy when perhaps there are non-litigious workarounds to improve the situation. I daresay that the small businesses who’ve been targeted by Mr. Louie would do what they could (key words there: ‘what they could’) to provide their wares or services to him or help get him access to their establishments. Most small businesses aren’t in the business of trying to alienate customers. But why work with your foe when you can sue them!

So, note to Louie: if the very change you’re trying to affect can’t take effect because the business you’ve targeted can’t afford to make the change, thereby driving it into bankruptcy at worst or non-compliance penalties at best, what have you accomplished? You’re certainly not winning allies, and you—or the community—risks losing a part of what was helping to contribute to a more vital neighborhood.

But then what’s a community to do when under siege from a court-clogging wannabe hero (or grudge-holder, as Louie reportedly told the  Marysville Appeal-Democrat, “I hold grudges”)  who’s costing more time, money and effort than the community can bear?

Enter Yuba City, CA.

Yuba City just took a bold—some would say insane—step to put the brakes on George Louie.

They paid him off. Or, I should say, they settled with him, by agreeing to pay him $15,000 in order for him to stop bringing frivolous lawsuits against them and area businesses. According to the MercuryNews (10/15/12), Yuba City’s economic development manager, Darin Gale states Louie has “agreed not to file ADA lawsuits in our city, period. There’s no timetable. It’s forever.”

Now, what this means for future and copycat lawsuit opportunists is yet to be seen.  But what does this settlement accomplish?

Well, the obvious is that it gets George Louie off Yuba City small businesses’ backs. As CBS News-Sacramento reported (10/13/12), local business owner Jayne Sawyer—who owns  JJ’s Tools and Merchandise—said in regard to the possibility of being targeted by a Louie lawsuit, “We’d probably have to close it down. We do not have the capital; we’re barely breaking even.” Then she says, “It’s just sad because it’s not what the law [ADA] intended to do.”

But it surely doesn’t leave a good taste in everyone’s mouth regarding efforts to put the spotlight on ADA non-compliance. As Yuba City property manager Bill Meagher, who had two tenants sued by Louie, was quoted as saying, “These are extortion lawsuits.” Well, a $15k pay-off could be seen as such.

Tags: ADA, California, Discrimination, Frivolous Lawsuit, George Louie, Lawsuit, Rights of the Disabled, Yuba City
Posted in Discrimination, Emerging Issues, lawsuits, Settlement | 1 Comment »

Has ADA Gone Too Far with Poolmageddon?

March 16th, 2012. By AbiK

So pool operators have been given a 60-day extension to come up with an ADA-compliant plan for having public pool access for disabled individuals. The ADA pool access law was passed in 2010; the original deadline to comply with it was March 15, 2012. And somewhere in between, the new ADA pool lift regulation law has earned the moniker, “Poolmageddon”.

Even with the year+ lead time, did anyone really think that every pool affected by the ADA pool access law would a) figure out exactly what the law–the nitty gritty parts one needs to understand in order to comply—meant; and b) be able to source pool lifts, install the pool lifts, train staff, and do whatever else was needed to remain open (or avoid risking a DOJ wrist-slap or worse) by March 15?

One could argue that the public pools had plenty of time to be planning for this—but, if you’re at all familiar with public pool operation, it’s not like money is pouring in, so even a portable pool lift that doesn’t require electrical grounding or ripping up the pool deck can cost in the range of $6,000. Not pocket change for most pools. So it’s easy to see how compliance in providing disabled individuals with pool access may have been pushed to the back burner in many a pool budget meeting.

But once the public pool owners’ and operators’ backs were to the wall, and they had to figure out exactly what was required by the ADA pool accessibility law, well, who knew?

If it weren’t for the fact that ADA compliance is a serious issue—and no one wants to see the rights of a disabled individual curtailed or not honored, nor does anyone what the DOJ breathing down his neck—there would almost be a comical element to pool operators scrambling to figure out what the hell the ADA pool lift law means. There’s even an ADA Pool Lift Regulations group on LinkedIn—and the questions and comments sound in line with someone who’d been dropped into a corn maze at dusk without a flashlight and is screaming for help.

Much of the issue is the wording (ain’t it always so?) of the law. In order to comply, public pool operators must accommodate disabled individuals to the extent that it is “readily achievable” to do so. Uh, yeah. So if cash flow is not readily flowing, does that mean a pool lift is not readily achievable?

In reading a LinkedIn comment, it seems the Assistant AG for the Civil Rights Division at the DOJ responded to the “readily achievable” question posed in a letter from the American Hotel & Lodging Association (AH&LA). The response stated:

• “readily achievable [ is,] i.e., easily accomplished without significant difficulty or expense.”
• “…portable lifts can be used at existing pools if affixing the portable lift or installing a fixed lift is not readily achievable”, but must be fixed when it is readily achievable.
• The DOJ believes that the regulation as written provides the flexibility necessary for these entitles to evaluate whether and how to remove barriers to access and to take only actions that they deem are “readily achievable.”

Hmm. So you’re telling me I have to comply, but I have complete latitude to determine if—based on if I think it’s readily achievable—I will or will not comply—right?

You can see where this is heading, right?

Hello litigation!

There are other rather gray or vague areas to figure out as well—such as whether the need to comply with a pool lift is actually still an issue if you’re pool has a sloping entry. Good question. So it’s a veritable can of worms….

Let us know what you think—keeping in mind the issue is not whether or not disabled individuals should have pool access—they should. The issue is in how it’s regulated.

Tags: ADA, ADA Compliance, Americans with Disabilities Act, DOJ, Pool Lift Regulations
Posted in Discrimination, Human/Civil Rights | 2 Comments »

White Castle 290 lb Craver Files Lawsuit to Sit

September 13th, 2011. By AbiK

Martin Kessman is, no doubt, a Craver—as in White Castle Craver. The type of guy for whom fast food is about the total all-in experience. So I envision his trips to White Castle completely titillate the senses—from inhaling the grease-laden air that greets him in the parking lot—sometimes with a hint of onion—to squinting at the back-lit menu behind the counter, while the blur of White Castle job agents (that’s what they’re called) provides a reassuring “we’re on it” to affirm his order will be up momentarily. Yes, it’s Martin Kessman’s zone. Or was. Until something shook the very core of his comfort at White Castle, and, he sued.

So now there’s this White Castle Lawsuit.

Here’s the deal. Martin Kessman likes White Castle burgers. In fact, it’s reported that he likes the “Sack Meal 2” (that oughta getcha salivatin’—Sliders in a Sack! That’s Sack Meal 2 shown above, coming in at over 1,000 calories.). But Kessman likes them not in a car, or a plane or a train—but INSIDE White Castle. And Kessman’s a big guy. He’s 290 pounds big. He needs a 290 pound-worthy place to sit and enjoy his Sack of a meal. And, well, the chairs at White Castle—at least the one he frequents in upstate New York—are benches that are bolted to the floor. You can’t pull them out to adjust them to your girth, which Kessman needs to do.

You can’t move the tables either—they’re also bolted down—and Kessman claims to have injured his knee by banging it into the steel support legs in an attempt to sit comfortably. See, Kessman claims the distance between the bolted down chairs and tables are discriminatory to fat people—he can’t fit in without discomfort or apparently knee injury.

So none of this sits well (forgive the pun) with Kessman. And the fact that there aren’t moveable chairs at White Castle is certainly not due to any lack of effort on his part. He’s complained to White Castle. He’s written to corporate headquarters about it. And as the New York Post reported, White Castle even responded by saying that they would be changing the seating—and they even included specs for Kessman to see. Oh, and they sent him some coupons for some burgers. That was over two years ago.

But you know how these corporate-driven changes go…

So Kessman hasn’t witnessed the bolted-down benches being swapped out for four-legged slider chairs (couldn’t resist) and he’s now getting really serious about this whole thing. So the civil liberties lawsuit has been filed. Kessman’s suing for new (presumably more spacious) White Castle chairs, and unspecified damages.

I don’t know how many people out there have really taken affront to White Castle’s seating set-up, but I’m guessing most folks who frequent the fast-food chain are less concerned about comfortable seating and more concerned about downing some sliders—somewhere else. I’m not thinking—in the scheme of things—that this really warrants legal action.

Oh but wait, if this settles—or actually goes to court—I may be able to start a list of all the places I go where things just aren’t made to accommodate tall people, which I am. And guess what? My legs—my knees—slam into practically everything wherever I’m seated! So maybe thanks are in order for Martin Kessman—after all, I can’t help that I’m tall any more than Martin Kessman can help that he’s 290 pounds, right? 😉

Tags: ADA, Civil Liberties, Discrimination, Martin Kessman, White Castle
Posted in Class Action, Discrimination, Emerging Issues | 7 Comments »

Should Dwarfism Preclude Working at Starbucks?

August 23rd, 2011. By AbiK

“Dwarfism is not a disease and opinions vary within the dwarf community about whether dwarfism is a disability. Dwarfism is a recognized condition under the Americans with Disabilities Act . Short stature can make some activities of daily living harder, such as using an ATM or gas pump. But most people with dwarfism have active, healthy lives and normal life spans.”

That’s a quote from WomensHealth.gov. The bold is from me as it caught my eye…is dwarfism a disability that’s rightly covered by the ADA? WomensHealth.gov is one of the sites I clicked through in order to try to gain more insight on the recent discrimination settlement where Starbucks agreed to pay $75,000 to a woman, Elsa Sallard, who has dwarfism and was let go after only three days of training as a Starbucks barista (“barista” being the adopted from Italy and seemingly inflated on US soil moniker for someone who makes, pours and hands over coffee, espresso or that quad venti skinny with whip iced caramel macchiato).

So Sallard, whose actual height has not been reported, must be 4 feet, 10 inches tall or less—as that’s the height one needs to be in order to be considered a dwarf (according to MedlinePlus, though the Mayo Clinic defines a typical range of “2 feet 8 inches (81 centimeters) to 4 feet 8 inches (142 centimeters)”). Four feet ten inches in and of itself would not seem to be a disability so I’m going on the assumption that whatever height Sallard is, she’s shorter than one needs to be to perform barista duties.

Regardless, she requested a stool or step ladder in order to facilitate her work behind the Starbucks counter. According to Reuters, the Starbucks manager at the location (El Paso, TX) where Sallard was being trained “ignored” her request and subsequently fired her, claiming she’d pose a danger to employees and customers.

While this may not be popular with all readers, I can see the manager’s point of view. I may not totally agree with it, and it certainly doesn’t align with how the ADA is worded**, but I can see where he might have been coming from. Particularly if the El Paso Starbucks was anything like a Manhattan Starbucks.

(**btw, the ADA considers a qualified individual with a disability to be “a person who meets legitimate skill, experience, education, or other requirements of an employment position that s/he holds or seeks, and who can perform the eessential functions of the position with or without reasonable accommodation. Requiring the ability to perform “essential” functions assures that an individual with a disability will not be
considered unqualified simply because of inability to perform marginal or incidental job functions. If the individual is qualified to perform essential job functions except for limitations caused by a disability, the employer must consider whether the individual could perform these functions with a reasonable accommodation. If a written job description has been prepared in advance of advertising or interviewing applicants for a job, this will be considered as evidence, although not conclusive evidence, of the essential functions of the job.” As such, dwarfism would be considered a disability.)

I recently had the pleasure of hitting a few Starbucks locations throughout NC, SC, GA and VA. It’s a pull up a chair and relax with some coffee kind of vibe. Not so in NYC. In New York, coffee’s gotta be served up PDQ or fuhgedaboutit. Doesn’t matter what time of day. So I can see where a manager at a busy Starbucks might first be thinking of mitigating the risk of injury prior to accommodating someone who can’t effectively reach all the necessary equipment to wait on customers.

It’s not hard to imagine the hustle and bustle behind the counter with waves of piping hot coffee (where’ve I heard that before?) cresting at the rim of every cup that’s being shuttled around. Throw in a step stool to maneuver about and it’s a burn injury waiting to happen at the very least; a slip and fall injury (or worse) at the worst.

The manager’s concerns—if that’s what they were—really aren’t part of the equation when it’s an ADA case. So for Sallard, Starbucks should’ve just run out to Lowe’s and gotten a blessed step stool. Instead, they’re coughing up $75,000 and providing diversity training on how to manage associates with disabilities.

Tags: ADA, Americans with Disabilities Act, Dwarfism, EEOC, El Paso TX, Elsa Sallard, Starbucks Discrimination, Starbucks Dwarf
Posted in Discrimination, Emerging Issues | 3 Comments »