Family Kicked Out Of Golden Corral Restaurant Over Children's Skin Disorder

[thucythucy]

148. You'll notice that your quote from the ADA says

"where such individual poses a direct threat..." Not "is perceived to pose" or "is believed to pose" or "is suspected to pose..." Nor does it say anything about "a reasonable person" determining the threat to exist. The threat has to be based in medical FACT, not the fears-prejudices-ignorance of the person providing the public service.

That language was very carefully drafted. Remember, the ADA was written during the height of the hysteria around AIDS. The authors of the act, some of whom were AIDS activists, wanted the law to protect people who didn't pose an ACTUAL threat, but were instead victims of prejudice, ignorance, and superstition. People used to think cerebral palsy was contagious, spread by drool. Some probably still do. It isn't a question as to whether or not the person holding such a belief is "reasonable"--it's whether the threat exists in actual FACT.

Also from the ADA: "The term 'direct threat' means a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation."

These children did NOT pose such a threat. Therefore, the manager could not discriminate against them under the provisions of the ADA.

In terms of employment discrimination, for instance, Title I mandates that the Secretary of Health and Human Services publish, each year, a list of infectious or communicable diseases, the risk of which "cannot be eliminated by reasonable accommodation" in which case "a covered entity may refuse to assign or continue to assign such an individual to a job involving food handling." The list is updated annually, and restaurant management is supposed to be cognizant of the list. These children do NOT have a condition listed by HHS. This language is in Title I, remember, the Employment section, the application of which by the courts has tended to be LESS rigorous than Title III, "Public Accommodations and Services Operated by Private Entities." So I'm really not sure where in the law this manager is going to be able to hang his case.

Now, whether or not he'll be able to get a judge to rule that, basically, "Yeah, well, the law is the law, but hey, how was he to know?" will be interesting to see. But I think it will be a serious blow to the disability community if the courts were to rule that, essentially, you can discriminate against someone with a disability as long as you BELIEVE them to be dangerous, as opposed to posing an actual danger based in fact.