American Council for the Blind v. Paulson, No. 07-5063 (D.C. Cir. May 20, 2008)

| May 20, 2008 | Daily Developments in EEO Law |

The latest disability accommodation case to hit the news — the U.S. currency case from the D.C. Circuit — draws incredulity and derision from the smart set. But it has a good deal to say to employers facing lower-profile, but serious, failures to accommodate their employees.

American Council for the Blind v. Paulson, No. 07-5063 (D.C. Cir. May 20, 2008):  Let’s start with the presumption of this lawsuit — that a federal district court can exercise authority over the look of our nation’s currency.  The plaintiff association claims that U.S. paper money is unreadable by the blind and visually handicapped.  It sued to obtain a change, most likely in the sizes of different denominations of the bills.  (Worth noting is that another organization for the blind appeared as an amicus for the Treasury on appeal, taking a vastly different tack thatn the plaintiff about the stigmatizing effect of this litigation on the blind. See their press release, “National Federation of the Blind Denounces Ruling on Accessible Paper Money Lawsuit.”)

Any citizen knows that Congress and the Treasury Department between them shape every millimeter of the appearance, texture and contents of our currency.  The considerations are both political (such as which statesmen appear on the bills) and practical (how to stem international counterfeiting). There is tension even between these branches, such as Congress’s passage of a ban on any Treasury Department changes to the $1 bill, and its repeated refusal to move the U.S. to a dollar coin or to stop minting the penny.

The judicial branch has no role in this process, except such power as might be arrogated temporarily through a generous reading of the federal rehabilitation Act.  As the Supreme Court reminded us just this week in Dept. of Revenue of Kentucky v. Davis (No. 06-666) — in refusing to strike down a predominant method of taxation, favoring in-state versus out-of-state bonds, as a violation of the Commerce Clause — courts operate at the ragged edge of their equitable power when they upset widely-settled political and economic expectations, even when applying Constitutional limits on governmental activity.

Okay, all of that said, what is the substance of the D.C. Circuit’s decision?  In affirming (by a 2-1 split) an interlocutory order (granting partial summary judgment to the association), the court had before it an impressive record of (1) the difficulty that the disabled have with U.S. paper money; (2) the impracticability of self-help measures (which depends on the honestry of strangers); (3) the fact that many of the world’s major currencies are printed in a way that a blind person can distinguish them (foil surface on the Euro bill, ridges in Canadian bills, etc.); and (4) how the cost of accommodation is manageable, if not negligible.

Put simply, the court majority affirmed that the current regime relegates the blind to dependent status:  “Where the basic task of independently evaluating the worth of currency in excess of 99 cents is difficult or impossible, the visually impaired are forever relegated to depend on ‘the kindness of strangers’ to shop for groceries, hire a taxi, or buy a newspaper or cup of coffee.”  And the Treasury Department failed, in turn, to establish “undue burden” as a defense.

While the court noted that section 504 of the Rehabilitation Act differs in its terms from Title I of the Americans With Disabilities Act (governing reasonable accommodation by private employers), it also observed that the Supreme Court has used the same analysis in construing both statutes, in particular whether the plaintiff bore any burden to prove the feasibility of accommodations.  It concluded, notwithstanding, that it

“need not decide whether the plaintiffs’ burden includes demonstrating that a proposed accommodation is facially reasonable. The Council could surmount this hurdle because it identifies accommodations that other countries use in practice, that the National Research Council has recommended for consideration, and that the Secretary has not suggested are infeasible and the costs of some, by the Secretary’s own estimates, are of similar magnitude to the costs of recent paper currency redesigns. As millions of individuals with visual impairment face daily obstacles in using U.S. paper currency, requiring the Secretary to adopt an accommodation would not be disproportionate to the benefit.”

The panel majority also set out a useful principle derived from the many cases decided under Section 504:

“Although the cases addressing meaningful access are necessarily fact-specific, they do reflect, in light of Supreme Court guidance, a general pattern: Where the plaintiffs identify an obstacle that impedes their access to a government program or benefit, they likely have established that they lack meaningful access to the program or benefit. By contrast, where the plaintiffs seek to expand the substantive scope of a program or benefit, they likely seek a fundamental alteration to the existing program or benefit and have not been denied meaningful access.”

So, for managers, the lesson may be to walk through your offices, maybe with your aged parents at their elbows, and look for such obstacles.  Unreadable computer screens, useless software, pointless physical obstructions.  Look to Europe for how managers there handle the same issues. 

P.S. The Treasury might have also been the victim of improvident, strategic litigation choices.  For example:

“For our dissenting colleague to conclude that ‘my colleagues have not identified a single accommodation that is undisputably ‘reasonable, effective, and feasible,’ and for which there is no material issue about an undue burden,’ Dissenting Op. at 4 (citation omitted), is to rewrite the record and the manner in which the Secretary has chosen to present his challenge on appeal. Whereas the Secretary has chosen to defend on the ground that he cannot be held liable under section 504 because implementing each identified accommodation would pose an undue burden, our dissenting colleague has focused on legal arguments antecedent to the undue burden issue in an attempt to relitigate the Secretary’s case for him and purported to find disputed facts with respect to issues the Secretary has not raised.”

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