Lawyers wrote the Americans with Disabilities Act, so it’s no surprise that would-be lawyers constantly try to raise the bar on accommodations within the legal profession. Case in point, Shannon Kelly, a 2003 graduate of Barry University School of Law in Orlando, Florida. Last year Kelly took the bar exam in West Virginia. In response to his stated disability, the Board printed his exam in eighteen point type, let him take the test in a private room and allowed him an extra day to finish. Nonetheless, Kelly failed the test.
He wants to try again, but this time he wants an additional accommodation. He has sued to be given all of the above accommodations, plus an additional day to finish the test. While in law school, his Barry U professors gave him twice the normal time to finish his exams. Twice the normal time for the West Virginia bar would be four days.
Kelly’s lawyer, Edward McDevitt, says that the Board has violated Kelly’s rights as a disabled person under the ADA.
“He has invested enormous time, money and energy to reach the threshold of the profession,” explained McDevitt. “But he has severe deficits in processing speed, cognitive fluency and rapid naming.”
Essential Functions
Kelly’s suit raises some interesting issues. The accommodations he requires for the exam might well be needed for his practice: briefs written in 18 point type; extension of the normal deadlines for filing court papers; perhaps even extra time to present his arguments. The fundamental question is whether Kelly can perform the essential functions of the legal profession. Most lawyers have to be able to read small type, respond to numerous deadlines and present their cases under extreme pressure. As a reward for their proficiency, they are (often) paid substantial hourly fees. Would Kelly command the same hourly rates, despite the fact that it might take him twice as long to complete the work? Would it be ethical to charge clients double for Kelly’s work? (On second thought, the subject being lawyers, let’s keep ethics off the table.)
If Kelly succeeds in passing the bar, I would recommend that he seek work as a government lawyer. He could take his sweet time finishing a task; he could let all his phone calls drift into his voicemail and call back when he felt like it; and he’d draw a salary, so his relative lack of output would be less of an issue. Heck, if he can pass the (illegal) political litmus test recently in vogue, he might be an ideal candidate for the Department of Justice.
At this point the case is in the hands of U.S. District Judge David Faber, who has temporarily denied Kelly’s demand for enhanced accommodation. Judge Faber will soon make a final disposition on the lawsuit. When Faber finishes this case, he might be ready to tackle reasonable accommodation for surgeons. I’m really looking forward to that one.
Follow up Note (8/9/08)
In re-reading my suggestion that Kelly become a government lawyer, I unintentionally crossed the line between well-intentioned satire and bad taste. Most government lawyers in my personal experience are extremely knowledgeable, quick to answer the phones and highly responsive to public inquiry. What I meant to say was that Kelly might find an appropriate place among the highly partisan, marginally skilled ideologues hired by the Department of Justice in the last five or so years.
As should be evident by now, I try to hold all professions accountable, including my own (consulting). So in the spirit of fair play, here are some tasteless jokes about consultants. Enjoy.
Archive for August, 2008
Accommodation for Lawyers
Wednesday, August 6th, 2008Three new state laws limit employer restrictions on guns at work
Monday, August 4th, 2008This summer, risk managers in Florida, Georgia, and Louisiana have a new concern to add to their checklist of health, safety and prevention issues: guns at work. These three states have recently enacted legislation that will allow employees to keep guns in locked cars at the work site. These laws not only overrule any existing company policies which forbid guns on company property, they mean that it is now illegal for employers to prohibit employees from keeping loaded guns in their cars during work hours.
The three states are the latest in a series of states that have passed such legislation. Other states with similar laws include Alaska, Kansas, Kentucky, Minnesota, Mississippi, and Nebraska. At least 13 other states have rejected similar laws; Oklahoma passed similar statute, but it was struck down in October 2007 on the grounds that the law conflicts with federal law, specifically, the 1970 Occupational Health and Safety Act. OSHA requires employers to reduce any any workplace risks that could lead to death or serious bodily harm. OSHA also encourages employers to prevent gun-related workplace injuries.
While each law varies in its particulars, there are some restrictions. In most cases, the laws apply to to licensed gun holders, for example, and some types of businesses may be exempt. In Florida, these include aerospace companies, nuclear power plants, hospitals, schools, prisons, and manufacturers that use combustible materials. Most laws offer employers some limited protection from any liability that should occur as the result of the laws, but this would likely not protect an employer from such things as business interruption, loss of business, or qualifying employee workers compensation or disability claims, to name a few matters.
Employer challenges
In Florida and Georgia, several large employers are keeping bans in place. Disney, Universal Studios, a Georgia Pacific paper plant, and Atlanta’s Hartsfield-Jackson International Airport are maintaining gun prohibitions and facing NRA-financed lawsuits from gun owners. States are struggling to clarify the laws on questions such as which employers should qualify for an exemption and exactly who does and doesn’t the law apply to? Right now, employers may not restrict employees from keeping a gun in a locked car, but vendors and visitors may be restricted.
Both sides claim rights. Gun owners claim their right to have guns, although the recent Supreme Court ruling suggested this right is not without some restrictions. Employers claim such laws are a a violation of the private property rights provided by the Constitution and an imposition on their violence prevention measures, which they must take to be in compliance with OSHA. Employers cite the five fatalities at an Atlantis Plastics in Henderson, Kentucky as an example of what could go wrong. In that case, a disgruntled worker retrieved a .45 caliber pistol from his car shortly after being escorted out of the workplace, returning to shoot his supervisor and four co-workers. This type of incident is unfortunately not rare. The Bureau of Labor Statistics data reveals 787 weapon “assaults and other violent acts” in workplaces in 2006. There were 439 workplace homicides by gunfire.
The recent spate of legislation is hardly the last we will hear on the matter of guns at work. Buoyed by the recent Supreme Court decision which struck down the 1976 Washington D.C. handgun ban, the NRA is stepping up its challenges to existing state gun control laws. If this issue hasn’t surfaced in your state yet, rest assured, it will.
Prior posts on this topic
Guns at work – coming to a neighborhood near you?
Workers with guns
Guns at work
