Table of Contents: Representing ADA Plaintiffs

Representing ADA Plaintiffs
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Abbreviated Contents 1. What is a Disability? Plaintiff’s Burden, Statutory Definition, Three-step Analysis, Physical or Mental Impairment, Major Life Activity, Substantially Limit, Record of Impairment, Regarded as Disabled, Comparison of ADA and Other Definitions of Disability DISCRIMINATION IN EMPLOYMENT (TITLE I) 2. Scope of Coverage Covered Entities Subject to the Prohibitions of the ADA, Workers Counted as Employees, Third Party Liability, State and Local Government Employees, Federal Government Employers, Entities Excluded from Coverage, Persons with Standing to Sue under Title I 3. Identifying Discriminatory Conduct Disability-based Harassment: Legal Basis, Elements of Prima Facie Case, Membership in Protected Class, Offensive Conduct, Severe and Pervasive Conduct, Employer Liability Retaliation & Interference: Protected Persons, Proving Retaliation, Proving Interference, Remedies Medical Examinations and Inquiries: Different Standards for Applicants and Employees, Pre-employment Inquiries, Post-offer/Pre-employment Exams and Inquiries, Exams and Inquiries of Current Employees Hiring Practices and Procedures: Broad Prohibition, Recruiting Efforts, Processing Applications, Selection Criteria, Qualification Standards, Testing 4. Reasonable Accommodation Theory & Concept, Persons Entitled, Interactive Process Required, Employer’s Continuing Obligation, Available Reasonable Accommodations: Job Restructuring, Reassignment to Vacant Position, Modified Work Schedule Limits on Reasonable Accommodation: Employer Not Required to Provide “Best” Accommodation or Employee’s Preference, Bona Fide Security System 5. Defenses Direct Threat: Qualification Standard, “Direct Threat” Defined, Threat to Others, Threat to Self, Burden of Proof, Proving or Disproving Direct Threat, Analysis of Direct Threat Evidence Reasonable Accommodation: Reduce Threat to Acceptable Level, Three Categories of Reasonable Accommodation, Evaluate Requested Accommodation to Ensure Job-Related Undue Hardship: Defined, Burden of Proof, Accommodation Too Costly, Other Examples of Undue Hardship 6. Exhausting Administrative Procedures & Remedies Form & Content of Charge, Amend Charge of Discrimination, EEOC Filing Deadlines, Scope of Charge Limits Scope of Civil Action EEOC Investigation, Conciliation, Letter of Determination, Right to Sue Letter, EEOC Initiates Civil Action 7. Civil Remedies & Damages (Title I) Back Pay, Calculation, Limits, Reinstatement, Front Pay Limits on Recovery of Monetary Damages, Pecuniary Losses, Pain & Suffering, Proving Non-pecuniary Losses, Punitive Damages, Due Process Limits, Tax Treatment, Interest Reasonable Attorney’s Fees to Prevailing Party, Lodestar Method, Determining Reasonable Hourly Rate, Hours, Multiplier, Procedure, Costs, Expert Witness Fees DISCRIMINATION BY PUBLIC ENTITIES (TITLE II) 8. Identifying Discriminatory Conduct Access, Participation, Modifications, Communications Employment Discrimination, Transportation Services, Prisons and Criminal Justice Facilities, Exams and Courses, Institutions and Community-Based Programs, Zoning, Voting 9. Achieving Compliance with Title II Non-Employment Actions: Public Enforcement, Private Enforcement, Injunction, Compensatory Damages, Punitive Damages Discrimination in Employment: Covered Activity, Enforcement Scheme, Private Right of Action, Statute of Limitations, Pleading Prima Facie Case, Available Remedies, Public Enforcement Actions DISCRIMINATION IN PUBLIC ACCOMMODATIONS (TITLE III) 10. Introduction to Title III Immediate Duties, Long-Term Goals, Standing to Sue Public Accommodation: Statutory Categories, Private Entity, Affecting Commerce, Place of Public Accommodation Commercial Facilities, Testing Facilities, Architects and General Contractors 11. Identifying Discriminatory Conduct Denial of Participation: Equal Access to and Benefits from Activities, Integrated Settings and Opportunity to Participate, Standards and Methods of Administration Other Specific Discriminatory Conduct: Discriminatory Eligibility Criteria, Failure to Provide Auxiliary Aids, Failure to Remove Barriers New Construction and Alterations: Made Readily Accessible, Accessibility Standards, Applying ADAAG 12. Title III Remedies Negotiating Voluntary Compliance, Rights and Remedies, Ripeness for Remedy, Statute of Limitations Private Enforcement Action: Single Incident, Procedural Prerequisites, Equitable Relief, No Monetary Relief, Attorney’s Fees, Other Grounds for Relief Challenging Defenses: Not Readily Achievable, Fundamental Alteration, Undue Burden, Direct Threat, Failure to Be Qualified Public Enforcement Actions: DOJ Enforcement Authority, Remedies LITIGATION ISSUES 13. Representing the Client with a Disability Adjustment Period, Fact-Intensive Cases, Employment Discrimination Cases, Public Accommodation Cases, Dynamic Law, Client’s Goals, Law Office Accessibility 14. Client Screening & Case Evaluation Good Client, Good Remedy, Good Facts, Theory of Case, Possible Theories to Explore (Disparate Treatment, Disparate Impact, Continuing Course of Conduct, Pattern and Practice Discrimination, Failure to Accommodate, Harassment), Advocacy Plan, Rights that May Be Affected by Disability 15. Pleading Forum Selection, Pleading Pointers Pleading Title I Violations: Administrative Prerequisites, Defendant Identification, Essential Elements (Prima Facie Case, Disability Status, Unlawful Conduct, Damages/Remedies) Title II: Written Notice to State Agency, Timely Complaint, Essential Elements (Prima Facie Case, Duty to Remove and Breach, Disparate Treatment and Impact) Removal and Remand: At Option of Defendant, Federal Question, Diversity of Citizenship, Remand 16. Federal Litigation Procedure & Practice Basic Points, Early Meeting of Counsel, Initial Disclosures, Scheduling Conference, Expert Disclosures, Pretrial Disclosures 17. Discovery Planning When and How, FRCP 26 Requirements Jury Instructions and Corresponding Discovery: Elements of Claim, Parties, Employer-Employee Relationship, Plaintiff’s Disability Status, Qualified Individual with a Disability, Unlawful Medical Exams and Inquiries 18. Medical/Psychological Examinations FRCP 35, Application to ADA Cases, Severe Distress, Mental and Emotional Distress, Compare Compensatory Damages, Psychological or Physical Disability Under ADA Good Cause for Examination, Conclusory Allegations Insufficient, Four Factors Considered, Procedure, Timing of Motion and Opposition Papers, Plaintiff’s Opposition to Rule 35 Motion, Examiner’s Report 19. Surviving Summary Judgment Planning, Burdens of Proof and Production, Determining Whether an Issue is Material Determining Whether a Fact is Genuine Creating Summary Judgment Record, Affidavits as Summary Judgment Evidence, Pleadings, Depositions, Documents, Interrogatories, Admissions, What to File, When to File and Serve, Hearing on Motion Prove Pretext in Tile I Cases, Challenge Defendant’s Intent and State of Mind, Reveal Patterns of Untruthfulness, Attack Admissibility of Evidence Strategic Considerations When ADA Plaintiff is Movant