Braille Monitor                                                August/September 2012

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Minar Directae

by Scott C. LaBarre

From the Editor: Scott LaBarre is the president of the National Association of Blind Lawyers and is involved in many of the high-profile cases we undertake. He made this presentation on Tuesday afternoon, July 3. Here is what he said:

Scott LaBarreThank you, Dr. Maurer and my Federation family. Today I have the honor of standing before you and presenting on Minar Directae, my long-standing nemesis. What is it; why should we care about it; and, most important, what in the world can we do about it?

By now you have all probably hopped on one of your i-devices or similar gadgets and figured out what minar directae is. It is Latin for “direct threat.” I suppose that still may not help you. Direct threat as I am referring to it today addresses the way our law deals with safety-based custodialism against people with disabilities. The Supreme Court sanctioned this legal doctrine in a case called School District of Nassau County, Florida, versus Arline, decided in 1987. There the Supreme Court stated that an employer cannot irrationally rely on fears about a person’s disability to terminate him or her or deny equal employment opportunity. Congress expanded upon this concept while passing the Americans with Disabilities Act and made it clear that employers and many other entities may not exclude people with disabilities based on fears or stereotypes that a person’s disability might cause harm. The only time that an employer or any other institution can exclude a person with a disability because of disability-based safety concerns is when the person’s impairment truly poses a direct threat. This is defined as a significant risk to health and safety, and it must be proven by several objective factors. The law also makes it clear that it is the entity wishing to exclude the individual with a disability which carries the burden of proving that a direct threat truly exists. So that’s what the doctrine of direct threat is, and it would seem that, because the employer or other entity wishing to exclude the person with a disability has to prove that the threat is significant and do so based on objective criteria, we need not worry about unfounded safety concerns about our blindness being used against us, right? After all, it is illegal to do so.

My friends, I submit to you that, instead of a shield used to protect us against stereotypes and misconceptions about our disability, the doctrine of direct threat has been wielded against us as a weapon, preventing us from achieving true equality of opportunity and thus true first-class citizenship. This is why minar directae matters and why you should care about it.

First, we should fill out this picture with some background and historical context. There is no doubt today’s law presumes and contemplates that we will be in the workplace and otherwise out there in society. Prior to the evolution of our civil rights movement, the prevailing presumption was that we should be confined to institutions or our homes, where the state or family would take care of us. In fact, the law of the land did not recognize that we even had a right to be out in the world.

Dr. Jacobus tenBroek, our founder and first president, considered these ideas long before anyone else. His 1966 article, “The Right to Live in the World: The Disabled in the Law of Torts,” published in the California Law Review, clearly sketched the stark and bleak landscape we faced at that time and advocated a better, more inclusive reality, one that Dr. tenBroek called “integrationism” or, otherwise put, first class citizenship. As evidence that the law did not recognize our right to live in the world, Dr. tenBroek cited a number of cases and laws that codified the concept that we had no business being out in society. One of the most poignant cases is that of Florida Central & Peninsular Railroad Company v. Williams. In this case, in which a blind man sustained injuries while traveling alone through a public railroad crossing, the Florida Supreme Court ruled in 1896 that it was the blind man’s fault that he got hurt, saying: “It is gross negligence in a blind man to expose himself alone in any situation where he knows that the faculty of sight is absolutely necessary to the safety of life and limb.”

That case represented the law of the land some 116 years ago, a small blip of time compared with the great weight of time we humans have wandered this Earth. And in fact that case has never been overturned. If directly challenged today, I do not believe a court would uphold this ruling chalk full of misunderstandings about the alleged inherent dangers of being blind, but one never knows.

With this backdrop less than fifty years ago, it is no wonder that Dr. tenBroek advocated so forcefully for change, a new day in which we would be assumed to be part of the mainstream and protected by the law, free of discrimination. So how far have we really traveled along the path of integrationism. How far do we have left to go?

Although the law has improved since 1966, interpretation and application of the law are where we face real threats, threats to our freedom and acquisition of first-class citizenship. The problem is that what society and the courts regard as objective evidence of our blindness being a safety risk often seems ridiculous to us. Frequently people simply make the assumption that the only way you can be safe in certain activities of life is by doing them with sight. In effect, being blind makes you per se and automatically unsafe. I suspect that we have all faced this blanket assumption at one point or another.

My first significant experience with my old nemesis, minar directae, came at Valleyfair Amusement Park in Minnesota, and it occurred shortly after passage of the ADA. Eight other Federationists and I, some of whom are in this room now, including Curtis Chong, Judy Sanders, and Nadine and Steve Jacobson, went to the park and attempted to ride a number of attractions together. The park told us that it was their policy that every blind person must be accompanied by a responsible adult. Upon further investigation we discovered that a responsible adult was anyone over four feet tall who could see. As many of you know, my wife Anahit and I have two small children. By Valleyfair’s definition, both our nine-year-old son Alexander and seven-year-old daughter Emily are now responsible adults. In defending the policy, Valleyfair told us that they had hired biodynamic engineers who stated that it was unsafe for the blind to ride things like roller coasters unless a sighted person told us what would be happening on the ride. Otherwise we would lose our postural control and be injured. In a document filed with the judge in the case that grew out of Valleyfair’s policy, the amusement park’s lawyer said, "Many of the rides at Valleyfair, like all amusement parks, put the rider into very unusual positions. Some rides spin and spin and spin, some turn the rider completely upside down, some move with great speed and require the rider to brace him or herself, and some get the rider completely wet." My response to this startling revelation is, really?  My Federation friends, I don’t know about you but when I go to an amusement park, I fully expect "to spin and spin and spin," "turn completely upside down," "move at great speed," and yes, even sometimes "get completely wet.” To this day I remember how astonished I felt about the depth of Valleyfair’s ignorance and how surprised I was when Valleyfair stubbornly refused to change its policy after meeting with us and being exposed to our position. Valleyfair assumed that we were so clueless about our surroundings that we couldn’t see that we posed a direct threat to our own safety. It took a lawsuit and nearly four years, but we won that case and got Valleyfair’s policy thrown out.

That Valleyfair case occurred some twenty-two years ago, while I was in law school at the University of Minnesota, and at that time, I never realized how many times I would come across my nemesis, minar directae, throughout my career. I am not sure exactly, but I have probably handled over three dozen cases where the principal argument used to exclude my blind client from the activity in question has been that the blind person is a safety risk, posing a direct threat to his or her own health and safety. According to these defendants we cannot do the following activities because we are an obvious safety risk: be a parent; run a daycare center; be a social worker; hold a job in a factory or any kind of industrial setting; work as a residential assistant at a college; be a chiropractor; be an acupuncturist; teach in a classroom; administer a nursing home; and, perhaps my all time favorite, go on a honeymoon cruise as a blind couple. Whatever the exact facts of the case are, the story remains the same--the employer or whatever entity believes that sight is mandatory for participating in the activity in question. Because of the power of the Federation, I am happy to report that we have defeated minar directae in the vast majority of these cases. Nevertheless, we often learn the most from the defeats we suffer.

One of the starkest examples of how the direct threat safety argument continues to be used against us came last year. I, along with my co-counsel Tim Elder, represented Frank Hohn from Hemingford Village, Nebraska. Frank is blind because of a severely constricted visual field. For nearly seven years Frank worked as a railroad machinist for Burlington Northern Santa Fe Railways (BNSF) and did so without any concern about his job performance. Even though the evidence in the case established that Frank’s coworkers and supervisors noticed that he saw things differently, no one complained about his lack of eyesight until he filed a safety complaint about a locomotive that he believed to be unsafe and that BNSF ordered him to return to service. Just a few days after that safety hotline complaint was filed, BNSF removed Frank from his job, using his eye condition as the reason, stating that they were all of a sudden concerned about his safety. Because of a number of legal rulings that were, in my opinion, incorrect, the Judge did not let any evidence about the safety complaint come to trial.

So last July 26, 2011, the twenty-first anniversary of the passage of the ADA, Frank’s trial began in Omaha, Nebraska, and my friends, at least with respect to application of the law in this case, it was not a good birthday for the ADA. After a seven-day jury trial the jury delivered its verdict against our client, Frank Hohn, and thereby upheld BNSF’s decision to remove Frank from his job for safety reasons. What was the evidence about safety that the jury heard? Was it that Frank had injured himself while performing his job, failing to see something that would have prevented the injury? Was it that Frank had injured another worker because he did not see him or her? Was it that a supervisor or someone else observed Frank almost get hurt or hurt someone else because he couldn’t see? The answer to these questions is, no, no, and no. The two key areas of evidence that BNSF relied upon to demonstrate that Frank Hohn was unsafe were: 1. Frank walked slowly; sometimes shuffled his feet; and, as one supervisor testified, it looked like Frank’s “vision was bothering him.” 2. Three medical doctors testified at trial that someone with Frank’s constricted visual field could not safely work an industrial job because the environment is far too dynamic. He must work a sedentary position, a desk job. At trial, I asked BNSF’s chief medical officer exactly what kind of job Frank Hohn could work: “Q. Ma'am, is it your assumption that, if a person has a reduced visual field like that of Mr. Hohn, they should only work in static positions, static job positions? A. Well, I don't know what you mean by static. I think they should be considered for a work environment in which obstacles are not present.” My Federation family, name me one, just one, job where obstacles aren’t present.

Moreover, did these doctors have any experience working with blind people in the workplace? Did they leave their comfortable offices and actually observe Frank at work and conduct an actual functional analysis of whether Frank could do the work that he had been performing for nearly seven years? Did they consult with any vocational rehabilitation experts who work with the blind and low vision and actually have expertise about workplace accommodations and nonvisual techniques that could help? The answer to these questions is no, no, and no. The jury returned its verdict on the evidence that Frank Hohn walked a little differently than others, his vision was “bothering him,” and the doctors said that it is impossible for a blind person to work in an industrial setting.

When the jury returned its verdict on August 3 of last year, Frank, the legal team, and I were devastated. Personally I felt that I had let down not only Frank, but all of you. How in the world could I possibly lose a case when the evidence so clearly demonstrated that our client had been a safe worker with no complaints? Once I got over the initial emotional shock, I realized that the jury believed the doctors that the blind simply don’t belong in any kind of job other than one that involves sitting behind a desk. Don’t worry. We’re not taking this lying down. We have appealed the decision, and we intend to win!

The stereotype that we can only work desk jobs leads me to this thought. As we all know, over 70 percent of the working-age blind are unemployed. If we made a trade with society and said that, ok, we believe you’re wrong, but we will stay away from any job that doesn’t involve sitting behind a desk, and you, society, will employ us in such great numbers that our unemployment rate will equal that of the sighted, maybe we would take that trade, but, when we got behind that desk, fired up our computers, and started trying to do the work, we would be likely to find that a great deal of the software we would need to use was incompatible with our screen-reading and other technology. Ah well, that’s a topic for another speech.

So we know what minar directae is and why it matters. What in the world can we do about it? The answer to this is not complicated. As some might say, we just got to keep on a truckin’, keep bringing the cases, changing the laws, and educating the public. We must transform the direct threat doctrine from a weapon used to legalize discrimination against us into a shield that protects us from unfounded fears and stereotypes about blindness. Because of the tremendous leadership of Dr. tenBroek, Dr. Jernigan, and Dr. Maurer, the many other terrific leaders who have imparted great wisdom, and the thousands upon thousands of our members who have worked hard over the years, we possess both the philosophy and resources necessary to combat the prevailing stereotypes and misconceptions arrayed against us.

As Dr. tenBroek said, the right to live in the world is more than a right just to remain in it. Because we safely and successfully pursue just about every activity known to humankind, we know our blindness does not pose a direct threat to our health or safety, but our society has not learned that lesson. Because we as a community have made great strides and the future we face is brighter than ever, sometimes it is far too easy to think that discrimination against us isn’t a big problem anymore. We must not fall into this trap and rest comfortably in blissful ignorance. We have come too far along the path to freedom and first-class citizenship to stop now. First-class citizenship is no longer just a fanciful dream. We must make it our reality. We have touched the flame of freedom, and it has ignited our hearts and minds. Nothing in this world will stop us, not minar directae, not anything. If we remain true to our philosophy and focus sharply on our objectives, we will be free. My brothers and sisters, we will be free!

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