Ken, and everyone,

,

The 11th Circuit just held that mental retardation is _not_ a
disability under the ADA.  Think we could get an Appeals Court to say
we don't have a disability, like your doctors did in your
disability/worker's comp. case ?!?  Littleton's argument may have
failed becuse he used the word "thinking" instead of "learning," and
"communicating" instead of "speaking."  Follow the link to read the
full decision.  So if we were discriminated against because we don't
walk well, and sued saying we had "impaired ambulation,"  rather than
"walking" would our case be rejected because we/our attorneys used
slightly different terminology?  IMHO, Littleton's terminology
probably was more descriptive of his disability than the narrower
terms "learning" and "speaking," but easily included them.

I just signed on to do local work for the "Road to Freedom" ADA tour
and the post from JFA about this landed in my mailbox about 20 minutes
later.  If people with all types of disabilities don't make our voices
heard on this, I'm afraid the slow dismantling of the ADA will
continue, and accelerate.

Court Decision: "Mental retardation" is not a disability under ADA

In the case of Littleton v. Wal-Mart Stores, Inc., the Court of
Appeals for the Eleventh Circuit, in an unpublished opinion from May
11, held that an individual with mental retardation did not have a
disability under the Americans with Disabilities Act.

With guidance from the Alabama Independent Living Center, Mr.
Littleton interviewed for a job as a cart-push associate at Wal-Mart.
However he was not allowed to have his job coach accompany him into
the interview, and he was ultimately not hired.

While acknowledging his intellectual disability, in the Court's
analysis, Littleton, who receives Social Security benefits because of
his disability, was found not to be substantially limited in major
life activities.

The following are excerpts from the court decision:

"We do not doubt that Littleton has certain limitations because of his
mental retardation. In order to qualify as 'disabled' under the ADA,
however, Littleton has the burden of proving that he actually is, is
perceived to be, or has a record of being
substantially limited as to 'major life activities' under the ADA.

"It is unclear whether thinking, communicating, and social interaction
are 'major life activities' under the ADA."

The entire court opinion is available as a pdf at:
http://www.ca11.uscourts.gov/unpub/ops/200512770.pdf

The following was taken from page 5 of the 9 page decision of the court:


The regulations provide that mental retardation qualifies as a "mental
impairment." See 29 C.F.R. § 1630.2(h)(2). Major life activities
include "functions such as caring for oneself, performing manual
tasks, walking, seeing, hearing, speaking, breathing, learning, and
working." See 29 C.F.R. § 1630.2(i). This court has not determined
whether thinking, communicating and social interaction constitute
"major life activities" under the ADA.

In his appellate brief Littleton asserts that the district court did
not consider evidence pertaining to limitations on his ability to
think and communicate.

Kendall

An unreasonable man (but my wife says that's redundant!)

The reasonable man adapts himself to the world; the unreasonable one
persists in trying to adapt the world to himself. Therefore, all
progress depends on the unreasonable man.

-George Bernard Shaw 1856-1950

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