TS AND THE ADA

(Americans With Disabilities Act)

an Introduction to Your Rights

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In 1990, the Americans with Disabilities Act—the ADA—was passed by Congress and signed by President George Bush, Sr. This landmark civil rights law extended to all people with disabilities the right to access public places and businesses, and to participate in the same everyday activities as any other citizens. Areas covered by the ADA include work, transportation, leisure, shopping, and public services.

According to the Federal Department of Justice, Tourette Syndrome is a disability covered by the ADA. However, some people with TS have had problems asserting their rights under the law, because such legal actions hinge not just on having a diagnosis of a disability, but also on proving that the condition substantially limits one or more major life activities. Some judges have quibbled over what constitutes “major life activities,” using a narrow definition that considers only very basic functions, such as eating, toileting, or walking. However, the Department of Justice has noted that interacting with others and working are also major life activities—and these are certainly areas where many people with TS encounter disability-related barriers. Individual judges can and do exercise discretion in how they interpret the law, however, so the outcome of an ADA case that concerns TS (or any neurological or psychiatric condition, for that matter) is never absolutely certain.

One case in which different views of TS as a disability was crucial began in an Alabama Wal-Mart store. A woman in her 20s, who had been diagnosed with both OCD and TS. Her symptoms were severe, and included coprolalia and other vocal tics. She went shopping at her local Wal-Mart one day, where her verbal tics attracted the attention of store security. She was forced to leave the store.

The woman brought an action against Wal-Mart under the ADA in 2001. Wal-Mart tried to block her discrimination claim by saying that TS is not a disability, and that furthermore she was not limited in any major life activity due to TS. The DOJ, however, wrote otherwise in a brief supporting her case.

Since 1990, several people with TS have brought similar cases under the ADA, targeting a variety of public places, employers, and government agencies that they allege have denied them equal access or equal treatment. For example, cases have been pursued against a restaurant that refused service, a catering company that fired an employee who had tics, a gym that terminated the membership of a patron with TS, and an accounting firm that refused to accommodate an employee whose TS affected concentration and other work-related factors.

Obviously, the facts of every case are different, and not all will succeed. Bringing a disability discrimination case also means opening up your life to public scrutiny, and that’s not something that everyone is comfortable with. However, if your claim is genuine and you are prepared to make all pertinent details public, including your medical records, you may stand to gain from bringing an action under the ADA.

Indeed, you may be able to use this law to solve your problem without going to court at all, as the threat of a lawsuit may convince the party concerned to come up with a solution, offer an apology, or change the way it works with people who have TS. For example, some people have used the threat of an ADA action to motivate the offending party into putting new disability guidelines into place, retraining staff, or changing their policies.

If the desired change doesn’t happen at this stage, you can continue the action by actually filing suit. At this stage, the company, service or agency involved may decide to opt for a mediated settlement, where they work with you and your lawyer to resolve the issue without going all the way to Federal court.

If you still don’t get satisfaction, or if the other party isn’t willing to negotiate, you can then choose to go on to court. A financial payout, as well as court-mandated changes in the other party’s behavior, may result if you succeed.

Although frivolous lawsuits are certainly something to avoid, all people with TS stand to gain from conscientiously filed ADA cases. Each successful case plays a part in convincing employers, retailers, and other entities that are subject to the ADA to be proactive about treating people with disabilities fairly. If you feel th at you have been discriminated against, it’s important to note that the ADA is not the only law that applies. You should consult a lawyer with expertise in disability-related law for advice.

If you want to know more about the ADA, the Equal Employment Opportunities Commission at http://www.eeoc.gov/ and the ADA site at http://www.ada.gov/, as well as other state and Federal government agencies, can help. They have information about what the law covers, what employers, government offices, and business owners need to do to be in compliance, and what you should do if you feel your civil rights have been denied. In addition, many disability rights organizations, such as the American Association of People with Disabilities (http://www.aapd.com/), provide ADA awareness training for people with disabilities and their advocates. The ADA National Network provides information, guidance and training on the Americans with Disabilities Act (ADA) – http://adata.org/.