YOUR NEUTRAL APOSTROPHES SICKEN ME

Our great lodestar of digital accessibility is Apple, which makes computers and screenphones that blind people can use, except for my blind friend of 30 years who couldn’t dial voicemail for months, and who still cannot read Web content embedded within apps, and who could not even manage to reliably tell the time with an Apple Watch, which he had no choice but to return.

Further, “[t]he Apple Park Visitor’s Center is a demonstration of an accessible building when cost is no object,” unless you need to press an elevator button.

One manager at an Apple Store good-naturedly griped that he was constrained in hiring persons with mobility impairments of nearly any kind (certainly including wheelchair usage) because the staff breakroom was up a flight of stairs. (No longer true, it is said.) At no time did I have the heart to tell him that somebody in a wheelchair simply could not work at his store – until news broke of Robert Shaw’s lawsuit against Apple, at which point I did tell the manager that I had known that fact all along.

By my reading, Apple was inaccessible to Robert Shaw. But his lawyer’s pleading and Apple Canada’s response are both rather half-assed.

Claims & rebuttals

The claim is straightforward to summarize: Apple Canada did not do everything short of undue hardship to make it possible for him to perform the same tasks in tech support and in Genius Bar operations that an employee not in a wheelchair could perform.

Reading both sides’ submissions, Shaw is correct: Apple Canada did not live up to its legal obligations, and indeed did make it impossible for Shaw to do his job.

But there’s so much wrong with this slapped-together legal claim. There’s just as much wrong with Apple’s response.

  1. Of course the typography, from both sides, is an unreadable shitshow.

    • The lessons of Typography for Lawyers remain not just unheeded but unknown.

    • Shaw’s lawyer’s British spellings and quotation marks were a nice touch.

    • Verb tenses don’t even match from paragraph to paragraph in Shaw’s claim, leading to actual errors of sense.

    • I’m sure that Apple’s lawyer’s weak-sauce counterarguments were banged out in Word for Windows.

  2. I doubt any Apple Store has an employee “bathroom”; Canadian English uses “washroom” (“restroom” in American). [Apple does not contend its stores have a “bathroom,” but does not differentiate between employees’ and customers’ washrooms (it uses that term).]

  3. The dollar value for which Shaw is suing is no less than $162,569.98. He is not asking to be reinstated or for any reparative measure, which in itself is a serious own goal here.

    If the task is to ensure that future employees in wheelchairs will be fully accommodated, then so-called public-interest remedies should have been demanded. Off the top of my head, those could include retrofitting all stores in Canada so that employees in wheelchairs can do every job that nondisabled employees can, and altering design specs, very much including visual design (see below), so that future stores and renovations of existing stores eliminate such barriers.

  4. It is not clear why this lawsuit is a lawsuit instead of a complaint before the Human Rights Tribunal. An informed guess would be as follows: The court has, in explicit terms, no ceiling on the amount of damages that can be awarded.

  5. In an overfamiliar and infantilizing error, Robert Shaw is consistently referred to as Robert, not Mr. Shaw, in the claim. Apple respectfully refers to him as Mr. Shaw.

  6. The statement “Robert has been in a wheelchair his entire life” is manifestly untrue. Shaw wasn’t in a wheelchair when he was in swaddling clothes. Were this pleading more carefully written, or if an actual editor had unfucked it beforehand, the claim would be run as follows: “Mr. Shaw has used a wheelchair for most of his life, starting at the time in childhood when nondisabled children would normally begin to walk and continuing to the present day.” (Or one could just cite the year in which Shaw began wheeling instead of crawling, toddling, or walking. Or just state that at all material times, Mr. Shaw used a wheelchair and still does.)

    The claim does, however, refrain from citing the nature of Shaw’s disability, which is a fair choice given that the only relevant criterion is wheelchair usage.

  7. The lawsuit undermines itself almost fatally: “Robert was promised accommodations in exchange for his promise to continue working at the store.”

    That is not how accommodation works! It isn’t a two-way street, with edge-case exceptions that do not arise here.

    If this is an attempt to assert that Shaw threatened to quit, and spill the beans and file a lawsuit, unless his disability were accommodated, it is a failed attempt.

  8. Dates listed are all over the place and could not be pieced together without a reader’s – or a judge’s – putting in the effort to produce a separate timeline. Shaw’s lawyer would have been entirely incapable of typesetting and editing such a timeline so it could actually be understood, so we may have dodged a bullet here. The phrase “the next day” comes up a lot.

    “Due to his dedication and skills, he enjoyed a long tenure and frequent merit increases to his wage as a Genius at Apple”: How long, and what kind of raises, and when? (Apple states Shaw earned $29.28/hour, or about $60,903/year.)

  9. Most important of all, Apple counterclaims that Shaw still works for them:

    Mr. Shaw is currently employed by Apple Canada Inc… He is currently on a leave of absence…. The defendant… denies the allegation that Mr. Shaw was constructively dismissed from his employment with Apple. In fact, Mr. Shaw remains employed by Apple and is currently on a leave of absence.

    In the alternative, if Mr. Shaw is no longer employed by Apple, it is because he made the unreasonable decision to resign and/or abandon his employment. […]

    Mr. Shaw left following his shift… and he did not thereafter return to the… store or his employment with Apple.

    Either he still works there or he doesn’t, people. Apple knows that fact with certainty. It also knows if Shaw is still getting paid.

  10. There’s a lot of discussion of “promised accommodations” at the first store where Shaw worked, but no details whatsoever. I believe the statement of claim when it insists those accommodations were not put in place, but expected or promised accommodations (versus actual ones) have to be itemized and backed up with a paper trail.

    “The store’s management claimed that they did not have the budget to put Robert’s accommodations in place at the time,” the court filing asserts. But Apple does not make a strict undue-hardship counterclaim; in other words, Apple Canada is not insisting that accommodations would be too expensive. Apple specifically denies this claim in any event.

    Neither side should even be bringing up cost unless there’s a paper trail attached to it. Everybody knows that Apple is, at worst, the second-most-valuable company on earth and can afford anything. The only purpose the budget-related assertion could serve here is building a case that Apple was intransigent and unresponsive in accommodating Shaw. But – again – the claim is so haphazardly put together that it does no such thing.

  11. There’s a discussion of an Individual Accommodation Plan (caps in original). But such a thing is mandated by regulations attached to the Accessibility for Ontarians with Disabilities Act, not by the Human Rights Code, the legislation cited in this action. Shaw’s claim doesn’t even mention the AODA – another huge own goal.

    “In November of 2018, Robert submitted his Individual Accommodation Plan”: He did or Apple did?

  12. Of great interest here are Shaw’s claims that Apple wouldn’t alter one or more of its stores due to “visual standards.” On its face, I rather quite believe that Apple would refuse to make a store accessible to a worker in a wheelchair if doing so somehow disturbed a preset plan or simply offended Apple’s totalitarian æsthetic impulses.

    Of fantastic interest is the fact that Apple does not specifically deny this claim. It broadly denies everything, then enumerates paragraphs whose assertions it specifically denies. Apple denies one visual-standards-related assertion but not the other one.

    I dearly dream of sitting in the gallery as Angela Ahrendts testifies under oath in a piddling $100K lawsuit in a Canadian provincial court.

  13. The claim contradicts itself subtly. It insists that tables (implicitly also desks) with the wrong height, and implicitly also heavy manual doors, led to “pain and numbness in his arms [that] was increasing. Robert saw a neurologist during this time. The neurologist advised Robert to begin using a brace for both wrists and elbows.” But it also complains that “Apple requested that Robert have physician and physiotherapy forms completed in order to continue with his request for accommodations despite the fact that Robert has been in a wheelchair his entire life.”

    That latter point is off-topic here. The issue is the health effects of Apple’s alleged refusal to accommodate Shaw to the point of undue hardship. Under the circumstances, it seems fair to rely on doctors’ diagnoses. “Robert has been in a wheelchair his entire life” is not a get-out-of-documentation-free card.

    Apple retorts that it did not ask for medical documentation, but maybe its insurers did.

  14. In April of 2019, Robert met with [a manager] again[, who] noted that Robert had good performance, but he would not receive a promotion if he continued to be “unhappy” in his role at Apple. Robert brought up accessibility and his issues with the tables. [The manager] argued that Apple did not have an obligation to accommodate Robert’s disability and noted that Apple may not be the right place for Robert.

  15. There’s a claim that Shaw had an argument with two managers, allegedly out in the open on the floor of the store. OK: Who started it? Don’t all parties have an obligation to act like adults and get the hell off the sales floor if they’re going to yell at each other? (Apple Store staff can and will walk away from a customer deemed to be angry or aggressive.)

    This filing asserts “harassment and bullying from Apple’s management” and “the [not ‘a’] toxic work environment,” yet barely manages to document any of those, least of all with dates and times. Robert Shaw didn’t start taking notes?

    I don’t agree that Shaw was constructively dismissed. Nor do I agree that a toxic work environment was created.

  16. There are endless mentions of tables and trays, but at no time is there evidence tendered that exact dimensions were decided on up front. I personally know engineers and ergonomists (actually just one – I shouldn’t use the plural) who does this sort of thing for a living, and for much more severely disabled persons than Shaw appears to be.

    Here’s a fun one: All these “trays” were bought offa Amazon, according to Apple. Again, custom-built furniture would be the minimum accommodation called for here, not least to comply with “visual standards.”

  17. I would tend to agree that Apple is guilty of “breaching the confidentiality of Robert’s accommodation requests.”

  18. Apple Canada notes that the respondent in Shaw’s claim is Apple Inc. Of course they’re two different companies, but that’s a distinction without a difference.

  19. Apple lists a whole raft of accommodations that Shaw’s claim never mentioned, like adjusting his schedule and ensuring he never had to heft a heavy iMac. (Heavy Mac Pros, and unwieldy monitors, are not mentioned.)

  20. Claim:

    Apple had a duty to accommodate Robert’s disability to the point of undue hardship.

    Correct.

    Apple has not demonstrated that they had or would have met the point of undue hardship in their attempts to accommodate Robert’s disability. Consequently, Apple has failed to meet their duty to accommodate Robert.

    Aaand here’s where the biggest or second-biggest company in the world is gonna lose just as big:

    The defendant pleads that employees cannot expect perfect accommodation and are obliged to accept a proposed accommodation that is reasonable in all of the circumstances. Once an employer initiates a reasonable proposal that fulfills the duty to accommodate, the employee has a duty to facilitate the implementation of the proposal.

    It is incumbent on the employe to accept an offer of reasonable accommodation, even though it might not be the specific accommodation which the employee would prefer. An employee cannot refuse a reasonable accommodation solution on the basis that the alternative, which they favour, will not cause the employer undue hardship.

    If a proposal that would be reasonable in all the circumstances is turned down by an employee, the employer’s duty is discharged.

    In the present case, the defendant pleads that Apple provided Mr. Shaw with numerous reasonable accommodation solutions…. In the end, however, Mr. Shaw refused to accept anything less than his perfect accommodation solution[.]

    Nope. Somebody’s using a high-schooler’s offhand definition of “reasonable,” and that somebody is an accredited lawyer who manifestly must know better.

Shaw should win it – barely

He has made a case, albeit incomplete, that Apple Canada did not accommodate his disability short of undue hardship. That’s all he needed to do.


This article is a test of Macintosh “journalism” demimondaines, and of accessibilitistas

  • I have these court documents and you don’t. I went and got them and you didn’t. I did research and published this article based on that research, and you did neither. Assuming this case actually goes to court, I’ll be there and you won’t.

  • The term “Apple fanboy” is derisively used. How dare they assume our gender, first of all. But there really are fanboys. As with all forms of dissent or disagreement in the Silicon Valley monoculture, everybody who dares to point out that Apple is not perfectly accessible, a statement whose generality you’ll note I am refusing to qualify or limit, is ignored or silenced.

    Boy, does this ever include the disabled population whom Apple fanboys treat as pets, namely blind people. (Progressives usually just treat their “Blacks” as pets. So I guess this is like having a ferret and a rat in the house.)

  • The fact that I am the only outsider with these documents proves that journalism is dead and further proves one more time that accessibilitistas pick and choose whom they wish to champion.

    Blind people using iPhones are a success story everybody can get behind. The blind people who repeatedly file bugs with Apple that never get fixed do not officially exist, despite being legion. Employees with disabilities at Apple also do not officially exist unless they are actual propagandists escorting Apple’s mistress of accessibility on speaking tours, which was actually held up as a point of pride on an “accessibility” podcast run by blind people with sunk costs too high to admit even the obvious.

  • I will not be promoting this posting in any way whatsoever. It will be Googlable within minutes of publication via RSS. It will be up to “Macintosh journalists” and soi-disant accessibility advocates to find it and talk about it.

Apple can’t be inaccessible to a disabled person. That would run counter to Narrative.

The foregoing posting appeared on Joe Clark’s personal Weblog on 2020.02.20 13:20. This presentation was designed for printing and omits components that make sense only onscreen. (If you are seeing this on a screen, then the page stylesheet was not loaded or not loaded properly.) The permanent link is:
https://blog.fawny.org/2020/02/20/shawvapple/

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