Burn Scars – ADA – Perceived Disability

This article from August 16, 2011, “Americans With Disabilities Experiencing Record Unemployment Rate” completely ignores burn victims who have not been hired because of their “perceived disability” when in fact there is no disability. Of course, when you’re treated as disabled but are in fact not disabled, there is no recourse. Yes, the ADA (ADAAA) and EEOC explicitly* covers burn victims as a “protected class,” but in real life people have a difficult time grasping how a “perceived disability” has any real harm. I’ll write more about this (not an easy topic): since 2005 I’ve been an “unemployed librarian” by trade, and I say unemployed librarian because I’ve applied to nearly every entry-level librarian opening within 100 miles of Tampa Bay Florida, and though I’ve had several interviews (and job offers) nothing has materialized (even the job offer was retracted after I accepted). During one interview the library director would not even maintain eye contact or shack my hand, and finally the reason I was not offered the position was that they didn’t think I was a “good fit” with the library. Whatever that means. I filed a complaint with the county HR, and the response was the director is a well respected professional, and that perhaps I should work on my interviewing skills. And for a complete waste of time, I filed a complaint with the Florida Commission on Human Relations. The FCHR’s refused to make a determination because I could not explain what “major life activity” was impaired, which is exactly the point–there is no major life impairment: I’ve been “regarded as having” or “perceived disabled” when in fact I’m not disabled. See, ADAAA Section 12102 (3)(A). Also see this excellent law review article by Dale Larson, “Unconsciously Regarded As Disabled: Implicit Bias and the Regarded-As Prong of the Americans with Disabilities Act.”

At times, I feel as if my adult career has been defined by applying to job openings, but that really wouldn’t be very accurate (memorable interview experiences). I will say I’ve always had a difficult time closing the interview in Florida versus DC or Chicago, where if I made it to an interview almost certainly I was offered the position. Florida, not so, the interview is the kiss of death. There’s an idea in Florida that there is always a better candidate, and definitely one not burned. This is, of course, is a generalization of Florida business practices. Also, at my current age I could be experiencing age discrimination, or even “over-educated” discrimination. I mean really, who wants a librarian with a juris doctorate degree and two decades of frontline customer experience in the demanding Information Technology field?

* “For example, persons with severe burns often encounter discrimination in community activities, resulting in substantial limitation of major life activities. These persons would be covered under this test based on the attitudes of others towards the impairment, even if they did not view themselves as “impaired.”” 28 CFR Part 35, 1992

Irritating 35 year old post burn scars

Age is catching up with me. After 35 years of burn injury pain-free life, my left arm with scars that go completely around my forearm is aching most of the time. It’s as if the scar band is cutting into the muscle, restricting blood flow, and throbbing pain. It’s my favorite left arm so I’m not too happy about this situation. Historically, the skin on my forearm does not glide over the muscle and is very tight; pinching the skin is like pinching the muscle directly. Compounding the situation is my lack of health insurance, which leaves me to my own care consisting of exercise, eating well, and adequate sleep, and generally try to stay mentally healthy, but organic approach really is no replacement for good medical care. I should note than I am foretunate my father is a doctor affording me liberal access to medical advice, but there are limitations (more limitations than the average person would expect).

Mistaken Again for Meth Lab Burn Victim

Several weeks ago I was dumbfounded when a store clerk expressed his perception I’d been burned in a methamphetamine lab explosion fire. I wonder how many people jump to that conclusion these days. And then there is this news article today, “AP IMPACT: Meth fills hospitals with burn patients.” I suppose I should give the pharmacy clerk some credit for recognizing what parts of the body are most affected: “What’s more, meth-related burns often sear some of the body’s most sensitive areas – the face and hands.
“I don’t think a lot of these patients will be able to re-enter society, said Dr. Lucy Wibbenmeyer of the burn center at the University of Iowa. “They’ll need rehab therapy, occupational therapy, which is very expensive.””

Real Attorneys are not Burn Survivors

Almost expelled from courtroom before my case was called because I didn’t look like an attorney.

During a recent pre-trial court appearance for a felony case I had signed in on the docket sheet with my client’s name and case number, and then waited for the prosecutors to arrive. There were many defense attorneys and nearly all of us each wanted to speak with a prosecutor about our respective case. I finished talking with the prosecutor and had taken a seat on the attorney bench. As is customary, defense attorneys will talk with the prosecutors their case before the judge enters the courtroom, and will continue to speak with the prosecutors while court is in session and while attorneys are being called up before the presiding judge to discuss their case or cases. I knew there where about two cases with two different attorneys before my case would be called. I remembered something I want to run by the prosecutor. I got up from the attorney bench, and stood just behind another attorney already talking with a prosecutor, and they continued to talk for some time. I knew my case was close to being called, and just as the judge called my case I was approached by a deputy. What the deputy was telling me was difficult for me to understand while I was concentrating on what the judge was saying. Plus, I was practicing how to great the judge as I do every time before I get called to the podium–It has not been easy for me to say “Good Morning your Honor.” And that is not out of disrespect, it’s from I cannot remember what to say. Literally, I have to think of what I’m going to say on the fly. Anyway, my mind was trying to stay out of the quagmire of overthinking, and the deputy was telling me I needed to leave the attorney area, that it is for attorneys, and go wait outside the courtroom. I didn’t comprehend at first what he was saying or doing. The deputy was continuing to approach and was between the judge and I when the judge called the case again. I had to step to the side to see the judge around the deputy, which alarmed the deputy who put his hand on his firearm. The deputy was about two feet in front of me when I said, “I’m being called by the Judge. I need to answer the Judge.” The deputy backed off, and the Judge asked if everything was okay. I said, “Yes.” I hadn’t realized how quiet the courtroom and gallery had become, and everyone that I could see was looking at me, which included the prosecutors and defense attorneys, and clerks. I couldn’t see the people in the gallery behind me. Afterwards my client asked me what that was about. I said I had no idea, but of course I did; I just didn’t want to say what I thought. It all happened so fast.

I have no idea what the deputy was thinking. That’s the problem. I had already been signed in and interacting with other attorneys for nearly twenty minutes. I was one of the last attorney to be called up, so I’d been there for what seemed a long time. There were a lot of people in the gallery, but as is the case, most hadn’t dressed in a suit. I could come up with a lot of excuses for the deputy, and to be fair their job is not easy, but neither is my job. I was representing a client charged with a felony. A felony means by definition if convicted my client would be looking at more than a year in jail. That’s a lot of stress for my client and me; especially when I believe all the evidence points to  not guilty of the crime charged. And, fortunately, the state did eventually drop the charges. However, my client already had spent time in jail, lost time from work, and almost $1,000 paid out for bond and other associated expenses, which my client will never recover. I’m sure the deputy was not thinking about any of this: why would he? The deputy is there to maintain procedure, peace and decorum. I witnesses a deputy expel a person from the gallery for getting the attention of another person be poking the person with his baseball cap (which was not on his head as that would been totally improper). The deputy was really upset. Another attorney and I thought there was a fight in the gallery based on the reaction by the deputy. I know what happened because the deputy explained to the judge’s assistant how rude the guy was and how he thought he’d get away with that sort of behavior in his courtroom. I didn’t see it, and the details are incomplete, so my deference is to believe the deputy took the proper course of action. Deputies deal with all sorts of antics all day long, but in that same line of thought, they deal with all sort of attorneys all day long every day, and I’m pretty sure a reasonable person in a courthouse would err on the side that I’m an attorney–I’m wearing the Attorney Uniform.

Unfortunately, this wasn’t the first time. I was dressed in a suit, the Attorney Uniform. I had on a tie and shoes. I had an iPhone, iPad, and a client file . Perhaps not the best suit, an IZOD suit (pants and jacket of the same fabric), but my tie was Nordstrom’s, and my shirt Ralph Lauren (and the collar button was actually fastened containing by 18 1/2 inch neck–damn scar tissue), which isn’t too shabby. All in all, several hundred dollars of clothing.

I suppose it really doesn’t matter how I dress, I’m going to look like a someone of interest. I should be happy that I got out of that situation without some unwanted holes in my suit.

It does make me question how effective I can be for my clients in the courtroom. So far no damage, but that may not alway be the case.