In the years I’ve written this column, one thing has become perfectly clear: it hasn’t offended a lot of people. (Some may say that following the teaching that “the opposite of love is not hate, but apathy” I did not offend enough people.) In fact, the silence was deafening. While I sometimes get polite comments from people in the grocery store, this column generated exactly three letters in over a quarter of a century.
One was a very nice handwritten note from a couple who apparently didn’t quite understand the process I normally follow – that is, writing about unusual court decisions. They asked if you can cut branches hanging over your fence from a neighbor’s yard.
The other two were critical and, unsurprisingly, lawyers. One objected to a column on a bankruptcy case in which I said, “Your credit is toast” after filing for bankruptcy. Because someone can only sue every six years (then – now only every eight years), he pointed out that many creditors actually want to lend you money because they know that you will not be able to sue for a long time.
The second was triggered by a column on what was then the most recent ruling by the federal appeals court of the Ninth Circuit (which also includes California). The court retried a lawsuit under the Americans with Disabilities Act (ADA) in which a woman named Carolyn Humphrey was fired from her job as a medical typist for often showing up late or not at all for engagement a series of compulsive rituals to wash or fix their hair because it didn’t “feel right”.
The court ruled that Humphrey was “disabled” under the ADA because she suffered from obsessive-compulsive disorder (OCD) and said her employer should have done more to “accommodate” her under ADA requirements. This happened despite the fact that her employer advised her on how to get to work on time, paid for additional medical treatment, and tried to give her a more flexible work schedule. But the appeals court said her employer had not “done enough”.
I made fun of the Ninth Circle’s decision because I relied on the film As Good As It Gets and the Oprah Winfrey Show as two authoritative sources on OCD, among others, as well as his comment that “regular and predictable participation not per se “is an essential feature of all jobs” (that’s right – they have never fired a federal judge for missing too much work). This led to an angry letter from a lawyer practicing in the field stating that I obviously don’t understand the ADA, nor that OCD is a legitimate condition and so on. Perhaps . . . but I still thought that Ms. Humphrey’s employer was saddled with an employee who was, say, an underachiever.
Still, this case is absolute gospel compared to another decision that doesn’t even pass the “face test” – that is, can a lawyer argue in court with a straight face? Well in this case someone apparently did.
It was a woman named Karen Brown who had been arrested for drunk driving, possession of methamphetamine, and the influence of a controlled substance. Unable to leave bail after her arrest, she stayed in jail for almost a week until she was convicted in court on DUI and possession charges. She then entered a 90-day drug and alcohol rehabilitation program, which she held until mid-February the following February.
Meanwhile, under her union agreement, her employer started a dismissal procedure because her unauthorized absence from work was a job abandonment for three consecutive days. As expected, Ms. Brown sued under the ADA, arguing, like Ms. Humphrey, that she was disabled – in Ms. Brown’s case, as she said, from alcoholism.
It turns out that the ADA actually has a pretty large exception for using illegal drugs or alcoholism, and the court – again the Ninth Ward – ruled that this time it would have fallen under the exception, not the rule, and their lawsuit should have been dismissed should be. Despite the fairly clear legal language, she and her lawyer still had the chutzpah to contest her dismissal and lead her through the appeal process.
I once attended a lecture by an appeals court judge who said that he and his colleagues sometimes use the “paper bag test” in cases of legal misconduct. If the wrongdoing did not cause them to throw up in a paper bag, they insured.
But in Ms. Brown’s case, even if she passed the “straight face test”, her attorney’s arguments clearly failed the “paper bag test”.