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Metratron posted:I would think that zits are different from boils. The substantial impairment here is that there is constant outbreak of zits on the skin that are not treatable. If it is a genetic disorder then she will continuously have these zits for the rest of her life. That in my mind is substantially affecting her normal skin functions (not having zits). Swap "boils" for "zits," and now you're saying chronic acne is an ADA disability. Chronic acne would affect the normal skin function of not having zits.... Here is a good place for you to point to any case law finding a chronic yet mild illness is a disability. Even if it's only been four years since the amendment, you think no one has tried that theory so far?
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Jan 12, 2015 21:33
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ActusRhesus posted:to be fair, this is not the kid's parent. Sorry. I saw an opportunity to be an rear end so I took it.
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Jan 12, 2015 21:35
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Metratron posted:I don't understand how you can get that that list isn't want the Act intends to include as major bodily functions. Including but not limited to means that the list is not exhaustive and that there are order bodily functions that the act does not specifically mention. Your skin is an organ and can be affected by disease. Ok your right I misread that part. Now, tell me what MAJOR body function boils disrupt. They don't make your skin stop protecting your body, which is what skin does. Unless they're not boils but open sores/wounds, in which case you are actually a health risk to others as much as being around other people is a health risk to you. Someone with multiple open sores on their skin caused by a disease/genetic disorder may in fact qualify for some disability, but daycares do have to take into account the health of all the kids. At least state regulated ones. At home daycares are a total crapshoot and TBH not a risk I would even take with my kids, but that isn't really the point. Your going to have a real hard time saying a boil is a disability. You might get a disability out of constant open sores causes by exploding boils, but you won't at the same time get a daycare to have to take the health risk to the other kids. Basically your disabled child would be potentially infectious to all other children.
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Jan 12, 2015 21:36
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I took five minutes to look. There was a 5th Circuit case in 2010 which is suggestive of the proposition that psoriasis (a skin disease that is ugly but not generally problematic) isn't substantially impairing, which psoriatic arthritis is.
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Jan 12, 2015 21:43
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Kalman posted:I took five minutes to look. There was a 5th Circuit case in 2010 which is suggestive of the proposition that psoriasis (a skin disease that is ugly but not generally problematic) isn't substantially impairing, which psoriatic arthritis is. That decision makes sense and is nicely illustrative of the substantial point.
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Jan 12, 2015 21:49
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And even assuming, for the sake of argument, that the kid is covered by the ADA, the parent would be suing a small home daycare center that absolutely wouldn’t be able to pay any judgment against it. The litigation would be too expensive to make this case worthwhile.
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Jan 12, 2015 22:10
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Surely the suffering of your enemy is a reward all on it's own* *the attorney you retain probably won't accept it as payment for their work, though.
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Jan 12, 2015 22:14
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yeah, a big part of "good" legal advice is not just "can you" but "should you".
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Jan 12, 2015 22:14
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Kalman posted:I took five minutes to look. There was a 5th Circuit case in 2010 which is suggestive of the proposition that psoriasis (a skin disease that is ugly but not generally problematic) isn't substantially impairing, which psoriatic arthritis is. If you are referring to CARMONA v SOUTHWEST AIRLINES, then its hard to rely on that because they applied the ADA as it stood before the ADAAA since the discrimination occurred in 2006 and the initial lawsuit was in 2008. The ADAAA is not applied retroactively. The 5th Circuit addresses this directly. "Congress amended the ADA in order to correct what it viewed as an overly restrictive interpretation of the statute's terms that had been adopted by the Supreme Court in Sutton and Williams. These amendments would be very favorable to Carmona's case if they are applicable, because they make it easier for a plaintiff with an episodic condition like Carmona's to establish that he is an "individual with a disability."" The 5th Circuit stated that the psoriasis was not substantially impairing to the plaintiff's major life activity (walking) but the psoriatic arthritis was. Which makes sense since this was before major bodily function was added as a major life activity so the court didn't address the issue..
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Jan 12, 2015 22:30
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I have a client who lost her job at the Cheetah Lounge because she has a genetic condition that makes her ugly. This substantially impairs her ability not to be ugly. Please advise.
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Jan 12, 2015 22:33
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echopapa posted:And even assuming, for the sake of argument, that the kid is covered by the ADA, the parent would be suing a small home daycare center that absolutely wouldn’t be able to pay any judgment against it. The litigation would be too expensive to make this case worthwhile. Ashcans posted:Surely the suffering of your enemy is a reward all on it's own* the milk machine posted:Swap "boils" for "zits," and now you're saying chronic acne is an ADA disability. Chronic acne would affect the normal skin function of not having zits.... l great reasons why.... once again..... blarzgh posted:You do not have "a case."
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Jan 12, 2015 22:35
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Go ahead and start drafting a complaint, I don't know if you've heard but Congress said the new standard is very liberal. Don't worry about the text of the statute, case law, or anything, you're good to go.
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Jan 12, 2015 22:35
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ActusRhesus posted:I have a client who lost her job at the Cheetah Lounge because she has a genetic condition that makes her ugly. This substantially impairs her ability not to be ugly. Please advise. See my post on Assfacia.
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Jan 12, 2015 22:35
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I think people who don't practice law tend to think that if they really believe hard in their righteousness on one narrow issue, all the other holes in the tapestry of their legal relief will just fill themselves in.
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Jan 12, 2015 22:37
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ActusRhesus posted:I have a client who lost her job at the Cheetah Lounge because she has a genetic condition that makes her ugly. This substantially impairs her ability not to be ugly. Please advise. Make the cheetah lounge pay for a boob job. Duh I was going to write a big long post about how the cowboys pass was like this (it sucks, but rules.), but I got lazy.
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Jan 12, 2015 22:38
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nm posted:Make the cheetah lounge pay for a boob job. Duh Seriously stop it. everytime I forget about it for a minute you remind me again.
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Jan 12, 2015 22:39
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blarzgh posted:I think people who don't practice law tend to think that if they really believe hard in their righteousness on one narrow issue, all the other holes in the tapestry of their legal relief will just fill themselves in. Yes I spend a lot of time telling clients why their case is not very good.
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Jan 12, 2015 22:39
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euphronius posted:Yes I spend a lot of time telling clients why their case is not very good. So do I, but as a public defender, it just means they think I'm trying to dumptruck them.
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Jan 12, 2015 22:42
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blarzgh posted:I think people who don't practice law tend to think that if they really believe hard in their righteousness on one narrow issue, all the other holes in the tapestry of their legal relief will just fill themselves in. and again...even if the ADA did apply, which we've settled it does not, 1. You will spend lots of money litigating. 2. Your kid will be published in legal records as "Boil Kid" sure sure, we don't identify minors, but it's not hard to find out who people are. 3. Every daycare you try to enroll your child in will know you as "that family who sued their last daycare" whoops...no room at the inn... 4. What are your damages again? 5. A jury will probably think the daycare was justified after being shown huge demonstrative exhibits of blown up boil posters. 6. No, really, what are your damages? Prudent legal advice, if you truly feel the daycare was insensitive to your kid's medical condition, give them some bad social media reviews...possibly report it to the AG if your state has more liberal laws regarding medical discrimination, and find a better daycare.
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Jan 12, 2015 22:43
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Wow I can't believe this is still going on. Cowboys suck, boils suck, law sucks. Now, who has a question about their lease?! Invalidating grandad's will? Pleading guilty to a sex crime?
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Jan 12, 2015 22:58
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I need advice on invalidating my lease to rent my grandpa's place because he died and I'm going to prison for a sex crime.
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Jan 12, 2015 23:01
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Hot Dog Day #91 posted:Now, who has a question about their lease?! Just for you: what is the duty of care that a landlord owes to a tenant (call them "A") in a multi-unit dwelling with shared common area regarding verifying that another tenant (call them "B") is not criminally insane before letting them rent a unit? I'll take a 50-state survey response, thx.
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Jan 12, 2015 23:08
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DNova posted:I need advice on invalidating my lease to rent my grandpa's place because he died and I'm going to prison for a sex crime.
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Jan 12, 2015 23:09
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Bad Munki posted:Using my grandpa's lease, I committed a sex crime against an invalid. If I put enough punctuation in my name, can I do this pro se? Is the lease gold-fringed?
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Jan 12, 2015 23:11
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Not anymore.
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Jan 12, 2015 23:13
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Alright you guys win. However, I'm not the guy with the kid in daycare. I was just trying to argue my point that he could have a case under the new more liberal standards of the ADAAA.the milk machine posted:Go ahead and start drafting a complaint, I don't know if you've heard but Congress said the new standard is very liberal. Don't worry about the text of the statute, case law, or anything, you're good to go. The whole point is that Congress specifically upended the entire line of case law that interpreted what substantially limits means. It isn't some legislative history but rather something that is in the text of the statute that the courts should stop trying to scrutinize so closely whether or not someone has a disability and focus on whether discrimination occurred. Metratron fucked around with this message at 23:25 on Jan 12, 2015 |
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Jan 12, 2015 23:16
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Congress still left the word in the statute. You can't ignore it.
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Jan 13, 2015 00:04
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What percent of being a lawyer is ridiculous arguments about the meaning of a specific word? If the answer is a high number, I may have a follow-up question about how to apply to law school.
docbeard fucked around with this message at 00:13 on Jan 13, 2015 |
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Jan 13, 2015 00:11
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docbeard posted:What percent of being a lawyer is ridiculous arguments about the meaning of a specific word? If the answer is a high number, I may have a follow-up question about how to apply to law school. Quite a bit, actually. Dec actions are serious business.
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Jan 13, 2015 00:17
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docbeard posted:What percent of being a lawyer is ridiculous arguments about the meaning of a specific word? If the answer is a high number, I may have a follow-up question about how to apply to law school. Given that the latest ACA SCOTUS case seems to revolve around what a "state" is, probably a lot.
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Jan 13, 2015 00:17
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docbeard posted:What percent of being a lawyer is ridiculous arguments about the meaning of a specific word? If the answer is a high number, I may have a follow-up question about how to apply to law school. Approximately 90% of my life. (But I am a patent lawyer.)
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Jan 13, 2015 00:45
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euphronius posted:Congress still left the word in the statute. You can't ignore it. But I'm not ignoring it. The ADAAA states that “the term ‘substantially limits’ shall be interpreted consistently with the findings and purposes of the ADA Amendments Act of 2008." Everyone here is interpreting "substantially limits" similarly to how the Supreme Court interpreted it back in 2002 in Toyota Motor v. Williams. They held that the terms “substantially” and “major” in the definition of disability under the ADA “need to be interpreted strictly to create a demanding standard for qualifying as disabled,” and that to be substantially limited in performing a major life activity under the ADA “an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people’s daily lives.” The ADAAA says, that's too restrictive. Now, under the ADAAA, when trying to figure out whether something "substantially limits" a "major life activity" we should look at "whether entities covered under the ADA have complied with their obligations, and to convey that the question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis." Now the question is, does having some genetic disorder that produces boils on your skin substantially limit a major life activity. If we accept that the genetic disorder is a physical impairment and that it affects a major bodily function (again we never got more information on the exact disease so the boils could be caused by the immune system or just something in the skin, I don't know), then to me it is clear that there is substantial impairment solely based on the fact that the boils are persistent. A normal body does not constantly produce boils or cyst without some infection. Whether or not it is some sort of debilitating disease is irrelevant.
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Jan 13, 2015 00:53
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You have yet to show how a boil substantially limits anything. Complaint dismissed. Congress didn't say persistent. They said substantial.
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Jan 13, 2015 01:31
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CaptainScraps posted:Quite a bit, actually. Dec actions are serious business. sullat posted:Given that the latest ACA SCOTUS case seems to revolve around what a "state" is, probably a lot. Kalman posted:Approximately 90% of my life. Seriously, had I realized when I was much younger that law played to exactly the sort of nerdery that appeals to me (basically anything with a lot of complicated and contradictory rules), my life could well have taken a very different turn.
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Jan 13, 2015 01:46
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Probably epidermolysis bullosa or bullous impetigo. Calling them sores seems a little excessive, but laypeople might disagree.
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Jan 13, 2015 02:15
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I'm sorry Metra but I think that interpretation will die a quick death. Anything out there supporting it? Law review or a case?
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Jan 13, 2015 02:30
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euphronius posted:You have yet to show how a boil substantially limits anything. Complaint dismissed. Hot Dog Day #91 posted:I'm sorry Metra but I think that interpretation will die a quick death. Anything out there supporting it? Law review or a case? I was just about to post a law review article. http://scholarship.law.missouri.edu/cgi/viewcontent.cgi?article=3911&context=mlr Starting on page 14 it covers the new major life activities and what significantly impaired means under the ADAAA and new regulations. Which led me to the regulations defining major life activity 29 CFR 1630.2 (i) Major life activities— (1) In general. Major life activities include, but are not limited to: (ii) The operation of a major bodily function, including functions of the immune system, special sense organs and skin; normal cell growth; and digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, and reproductive functions. The operation of a major bodily function includes the operation of an individual organ within a body system. Now I think I might not have been clear before, but I do not think that boils in and of themselves are what qualifies as a disability. Now we don't really know what the medical condition is or how it works, but if the boils are caused by the genetic disorder affecting the immune system or affecting how the skin works then yes, the genetic disorder is substantially limiting the normal functions of the immune system or skin. We've gone over this before, but the only guide on what we have for what substantially limited means is in the regulations. "An impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting. Nonetheless, not every impairment will constitute a disability within the meaning of this section." "The determination of whether an impairment substantially limits a major life activity requires an individualized assessment. However, in making this assessment, the term “substantially limits” shall be interpreted and applied to require a degree of functional limitation that is lower than the standard for “substantially limits” applied prior to the ADAAA." We've been mainly talking about boils here, but we don't really know that much of what the actual condition is. However, we know it is lifelong since the father mentioned he has episodes as well. Now we don't have anything definite saying that yes genetic disorder that causes boils is automatically a disability, but we have some guidance into what is covered right now: diabetes substantially limits endocrine function; (just as an aside, diabetes would not have counted before as a disability unless it significantly impaired some other major life activity besides endocrine function) epilepsy substantially limits neurological function; Human Immunodeficiency Virus (HIV) infection substantially limits immune function; multiple sclerosis substantially limits neurological function; muscular dystrophy substantially limits neurological function; and major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder, and schizophrenia substantially limit brain function. These are suppose to be "easy" cases were it is clear that there is a disability. Now, maybe the boils aren't as clear as these, but it's not so clear cut that its definitely precluded. Metratron fucked around with this message at 03:01 on Jan 13, 2015 |
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Jan 13, 2015 02:53
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I've straight up litigated the meaning of individualized assessment. Even have a reported case on it. It's pretty dang broad. I'm not as eager to push back on your interpretation, but it really seems like the incredibly liberal standard you think congress intended would open the flood gates on litigation. Assume that boil child has a genetic condition that causes one painful boil to appear on her stomach daily, and the only relief is to give the child a 1 minute bath in boilease brand soaking powder. The daycare provider refuses to accommodate the child and boil dad sues. Do you think that wound be discrimination? Edit: I don't think anyone is saying boils that impair your sight, hearing, speech, arm movement, walking, etc would not be disabling under the ada, cause those are all life activities.
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Jan 13, 2015 03:04
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Metratron posted:I was just about to post a law review article. http://scholarship.law.missouri.edu/cgi/viewcontent.cgi?article=3911&context=mlr That is a fuckload of words to say "we don't know what the condition is so nobody can say for sure." As stated 100x before, even if your magic boils disease would qualify as a disability, though it isn't because boils have never been a disabling condition, then your suit against an unregulated in home daycare with no actual damages to claim, and no reasonable hope of recovering money against the person who isn't discriminating against the non qualifying disease with no damages, is going nowhere. Your arguing a case full of nothing for no good reason. Go get drunk and play xbox or something productive with your life. Hot Dog Day #91 posted:I've straight up litigated the meaning of individualized assessment. Even have a reported case on it. It's pretty dang broad. He has no point at all. He just wants to post on the internet until someone agrees that his original point of view could have any merit at all. Even though he has previously in this thread proclaimed he gives up. Metratron posted:Alright you guys win. However, I'm not the guy with the kid in daycare. I was just trying to argue my point that he could have a case under the new more liberal standards of the ADAAA.
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Jan 13, 2015 03:08
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jassi007 posted:He has no point at all. He just wants to post on the internet until someone agrees that his original point of view could have any merit at all. Even though he has previously in this thread proclaimed he gives up. So I got a bit carried away.
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Jan 13, 2015 03:21
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