Legal Highlights

Personality Test Found to Be in Violation of ADA in Precedent-Setting Case

In Karraker v. Rent-A-Center Inc., the 7th U.S. Circuit Court of Appeals held that the Minnesota Multiphasic Personality Inventory (MMPI), a test designed to diagnose mental impairments, is a medical test and its use by an employer violated the Americans with Disabilities Act (ADA). Equip for Equality submitted an amicus brief in support of the employees' position on which the court relied heavily. Approximately 44% of employers use personality tests in making personnel decisions, and because Karraker is the first time that a federal appellate court has reviewed whether a personality test violates the ADA, this decision could prove to be extremely important.

The employer, Rent-A-Center (RAC), administered a battery of tests to employees seeking a promotion. The test-battery included more than 500 questions from the MMPI. An applicant could be denied any chance for promotion solely because of a high score on the MMPI. RAC claimed that it was using the MMPI questions only to measure "personality traits," but the court found that "the MMPI does not simply measure such potentially relevant traits as whether someone works well in groups or is comfortable in a fast-paced office." Rather, "the MMPI considers where an applicant falls on scales measuring traits such as depression, hypochondriasis, hysteria, paranoia, and mania [, and] ...elevated scores on certain scales of the MMPI can be used in diagnoses of certain psychiatric disorders."

The court determined that "the practical effect of the use of the MMPI is similar no matter how the test is used or scored." Thus, even if RAC's intent was not to weed out applicants with psychiatric disorders from opportunities for promotion, its use of the MMPI likely had that effect, since people with psychiatric disorders might indeed score poorly on the MMPI. The court held that, "[b]ecause it is designed, at least in part, to reveal mental illness and has the effect of hurting the employment prospects of one with a mental disability, we think the MMPI is best categorized as a medical examination [, a]nd...its use, we conclude, violated the ADA."

In making its decision, the court found that "Americans with disabilities often faced barriers to joining and succeeding in the workforce. These barriers were not limited to inaccessible physical structures. They also included attitudinal barriers resulting from unfounded stereotypes and prejudice. People with psychiatric disabilities have suffered as a result of such attitudinal barriers, with an employment rate dramatically lower than people without disabilities and far lower than people with other types of disabilities."

Mary Lee Leahy, attorney for the employees, said that this was "a great decision, both in terms of protecting people with disabilities and in terms of protecting the right to privacy."

EFE Helps Woman to Leave Institution and to Remove Her Guardian

Kimberly Y. is a 26-year-old woman with mental retardation who has lived at home with her parents in a small Illinois town for her entire life. She receives workshop and other community support services from a local provider. Her mother and father, who are going through a divorce, are her legal co-guardians.

In early summer, her mother abruptly and unilaterally moved Kimberly out of the family home and placed her in an institution (an intermediate care facility for people with developmental disabilities or "ICF-DD") located in a different town. Kimberly did not want to leave her home, her friends, or her job at the workshop. Her father honored her wishes and brought her back home the next day. Kimberly's mother then filed an emergency motion asking the court to grant her authority to place Kimberly back in the institution.

Equip for Equality was then appointed as Kimberly's lawyer. Based on the client's wishes, Equip for Equality opposed the mother's motion to place Kimberly back in the institution. We also asked the court to remove the mother as guardian, as she was acting against Kimberly's wishes and interests. During a lengthy pretrial settlement conference with the judge, the mother agreed to withdraw her petition to place Kimberly at the institution and also agreed to withdraw as Kimberly's guardian. The father was named as sole guardian. The judge ordered the father to seek additional community support services to help maintain Kimberly's employment and to provide her with additional social opportunities.

EFE's Assistive Technology Project Successfully Advocates for Payment for Power Wheelchair

Patricia Van Doren contacted Equip for Equality because Aetna denied her request for coverage for a power wheelchair with suspension. Patricia has multiple system atrophy (MSA), a progressive neurological disorder that has left her unable to walk without falling down. She also has arthritis, back pain, muscle spasms and weakness in her extremities. Equip for Equality agreed to handle the insurance company appeal and obtained additional medical evidence and documentation from Patricia's physicians and physical therapist.

Shortly after receiving this additional information, Aetna reversed its decision denying coverage for the power wheelchair. Patricia now looks forward to obtaining her new chair that should allow her to maintain her independent lifestyle with more comfort. This case is one example of the type of case Equip for Equality can handle involving assistive technology such as this power wheelchair, in the contexts of private insurance, Medicaid, Medicare, vocational rehabilitation, special education and employment.

EFE Uses Previous Victory to Assist Woman to Leave State Psychiatric Hospital

A 22-year-old woman contacted Equip for Equality for assistance after her mother obtained a court order of temporary guardianship and she had been involuntarily admitted to Elgin Mental Health Center (EMHC) by the probate court in Kane County. The EMHC officials advised Equip for Equality that the woman did not need a guardian and should not be in EMHC. Equip for Equality appeared in court on her behalf and quickly obtained an order allowing the woman to be released from the mental health center. On the second court appearance that was scheduled for hearing on the petition for guardianship, EMHC officials appeared at the behest of Equip for Equality, ready to testify on the woman's behalf. The mother and the guardian ad litem both agreed to vacate the temporary guardianship and to dismiss the petition for plenary guardianship. The woman currently lives with a friend and is taking steps to solidify her independence. When making its argument, Equip for Equality relied on its victory in a previous case, Muellner v. Blessing Hospital, in which the Illinois Appellate Court held that involuntary placement of people with disabilities in a segregated facility is a serious deprivation of individual liberty, and guardians must meet the commitment standard under the Mental Health Code to justify such placements.

EFE Files ADA Employment Discrimination Case on Behalf of Person with Cystic Fibrosis

Equip for Equality is representing Kenneth Seil in an ADA employment discrimination case filed in federal court against Fair Oaks Ford in Naperville, Illinois. Seil alleges that he was discriminated against on the basis of his disability, cystic fibrosis, a respiratory condition. While employed by Fair Oaks Ford, Seil took a part-time position to accommodate his disability. When he was ready to work full-time, he was informed that there were no job openings, a statement that was subsequently found not to be true. Seil contends that his employer refused to allow him to return full-time because of its concern that the company's healthcare costs would increase once he became covered by the company's health insurance. Seil is seeking compensatory damages, and the company's adoption of ADA-compliant policies and procedures and ADA awareness training.

EFE helps parents of child with language disability obtain redress for LRE violation

Equip for Equality successfully negotiated a settlement in a case involving a violation of the least restrictive environment (LRE) provisions of the Individuals with Disabilities Education Act (IDEA). The client, a boy with a language disability, was included in a regular education program until he moved to Illinois, where his new school district placed him in a segregated setting against his parents' wishes. The parents filed a complaint with the Illinois State Board of Education (ISBE) in which they asked ISBE to find that the school district had violated the LRE provisions of IDEA. After conducting an investigation, ISBE concluded that the school district had indeed failed to place the child in the LRE. ISBE addressed prospective relief, but did not address the issue of compensatory education for the period in which our client had been improperly segregated. Equip for Equality requested an administrative due process hearing to obtain compensatory education as a remedy for the LRE violation. The parties reached a settlement requiring the school district to pay a monetary sum to the parents to enable them to purchase compensatory services to remediate the effects of their rights of their child's exclusion from regular education.

Equip for Equality Obtains Preliminary Injunction to Freeze Nursing Services for Young Man with Severe Disabilities

Due to an accident when he was seven that injured his spinal cord, Michael is paralyzed from the neck down, uses a ventilator for respiration, and uses a gastronomy tube for nutrition. He requires 24-hour medical monitoring. He is mentally alert and completed high school, carrying a regular academic load and earning a 4.0 average. For the last three years, accompanied by a nurse and a note taker, he has attended community college, where he is also receiving high grades.

The Illinois Department of Healthcare and Family Services (DHFS, formerly the Illinois Department of Public Aid) paid for Michael to receive 136 hours per week of home nursing until his 21st birthday, with his parents, both of whom work, providing the balance of care. When he turned 21, DHFS and the Department of Human Services (DHS) decided on a plan of care that reduced his nursing services by nearly half, leaving large gaps of time with no nursing services at all. This level of service would not meet his needs and could result in his death. The agencies refused to restore the 136 hours even though paying for them would be far less expensive than institutional care.

Equip for Equality filed a complaint on Michael's behalf in the state court in Whiteside County, Illinois, challenging the decision of DHFS and DHS under state law and under the Americans with Disabilities Act. Equip for Equality also sought a preliminary injunction preventing DHFS and DHS from reducing Michael's nursing hours until such time as the court can make a final resolution of the case.

On July 21, the court granted Equip for Equality's motion for a preliminary injunction and ordered the state agencies to continue funding 136 hours of nursing services per week until the administrative appeal case is resolved. In opposing Equip for Equality's motion, the state acknowledged that the only appropriate placement outside his home would be in a hospital.

Michael lives with his parents, who both work to support themselves and Michael. His parents supply the medical monitoring during weekends, and the nurses supply the care during the week. The parents' insurance also pays for over $3,000 per month in medical supplies and medicine.

Michael has many outside interests and hobbies, is engaged in community activities outside the home, has three older siblings and grandparents who live in the same town, and is well-known in his community of Fulton, Illinois, which is located next to the Mississippi River, 50 miles north of the Quad Cities.

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