What if an entity slow walks the reasonable accommodation process with the hope that the person with the disability will, for example, graduate, age out of the program, simply go away? Is an unreasonable delay in granting a reasonable accommodation actionable under the ADA? Two cases out of the jurisdiction of the Seventh Circuit say that it is. It is interesting that it is two cases from Illinois as the Seventh Circuit is not generally speaking, particularly generous to people with disabilities with the exception of mandatory reassignment, which we discussed here, and unreasonable delay. The cases of the day are McCray v. Wilkie decided by the Seventh Circuit on July 16, 2020, here, and DiFranco v. City of Chicago decided by the Northern District of Illinois on March 7, 2022, here. As usual, the blog entry is divided into categories and they are: McCray facts taken from the opinion; McCray’s reasoning that a delay in providing an adequate replacement van was actionable; McCray’s reasoning with respect to failing to reassign plaintiff or give him a new office; DiFranco facts taken from the opinion; DiFranco’s reasoning that failure to accommodate claims can proceed; DiFranco’s reasoning that the ADA and the Illinois Human Rights Act discrimination claims get tossed; and McCray DiFranco thoughts/takeaways . Of course, the reader is free to concentrate on any or all of the categories.

 

I

McCray Facts

 

McCray is an employee of the Department of Veterans Affairs (“VA”). McCray worked at the Milwaukee VA Vet Center as a readjustment counselor from July 1997 until September 2000, when he left for graduate studies. After earning a Master’s degree in Educational Psychology/ Community Counseling and practicing as a community psychologist, he returned to the VA in March 2004 as a Mental Health Case Manager. In that capacity, McCray provides a variety of support services for military veterans, among them engaging in one‐on‐one counseling (including drug and alcohol counseling), conducting clinical groups, helping to complete benefits applications, making in‐home visits in at‐risk neighborhoods, providing case management for veterans with severe mental illness, and transporting clients to clinical appointments.

 

McCray alleges that he was subject to multiple forms of workplace discrimination. Two of the three claims he has pursued on appeal are claims that the VA failed to accommodate his disabilities; the third is a disparate treatment claim positing that other VA employees received more favorable accommodations than he did based on their race. (McCray is African American; the comparators are white women.) No. 19‐3145 3

 

McCray served in the Army for a period of eight years in the 1980s (achieving the rank of Sergeant prior to his honorable discharge), and in the course of his service sustained injuries to his big toes, ankles, knees, lower back, and shoulders. He also sustained mental injuries and has been diagnosed as having an adjustment disorder with depressed moods. As of February 2013, his VA disability rating was 100 percent. In addition to his service‐related disabilities, McCray suffers from hypertension, arthritis, diabetes, sarcoidosis (which is in remission), and post‐traumatic stress disorder (“PTSD”). McCray’s physical disabilities have a substantial negative impact on his ability to bend, stoop, climb, reach, twist, carry, sleep, and walk; pain attributed to McCray’s arthritis also causes him to experience difficulty with concentration. His mental disabilities likewise affect his ability to concentrate and in addition his breathing ability; they also contribute to a sense of extreme fatigue.

 

In July 2012, McCray asked his supervisor, Dr. Erin Williams, that the van he was using to transport VA clients to their appointments be replaced, because the van was hurting his knee. Since his return to the VA in 2004, McCray had not previously needed an accommodation in order to perform his duties. After a preliminary meeting between McCray and an ergonomics employee in August, the van was evaluated in October by a specialist, who concluded that the “knot” on McCray’s knee seemed to be caused by a lack of leg room in the van. (McCray is 6 feet 3 inches tall and weighs 390 pounds.) In November, the van began to “buck and jerk” in traffic. Although the motor pool evaluated the van and told McCray they could find nothing wrong, a co‐worker who drove the van one day experienced the same problem and told McCray the van was unsafe. In December, he was offered a temporary replacement van which he eventually accepted, but the replacement van allegedly had a cracked windshield, no rear brakes, inoperable power steering and horn, and was too small: McCray described it as worse than the original. McCray continued to ask for an appropriate replacement van as he had since he first made the request in July, but he did not get it until June 2013, 19 days after he told Williams that he was going to file an EEO complaint over the matter. In 2014, shortly after a white female coworker complained about her van bucking and jerking, all of the case managers received new vans.

 

In August 2013, McCray filed a charge (his second) with the Equal Opportunity Employment Commission (“EEOC”) complaining that he had improperly been denied a promotion to a higher grade level and that the VA had not reasonably accommodated him when he had requested a replacement van.

 

In October 2013, McCray experienced difficulty concentrating at work, which he attributed to various acts of discrimination and retaliation committed by co‐workers in the wake of the charges he had filed with the EEOC. He was initially granted a two‐week leave of absence, after which he returned to work and suffered a series of panic attacks. He asked that he be reassigned to another position as a reasonable accommodation; he also was prescribed (and granted) a second leave of 30 days. The following month, he was advised that the VA was unable to find him a reassignment.

 

In response, McCray indicated that he could probably manage to continue working without reassignment if he were to be given an office on a lower floor as an accommodation to his disabilities. That request was denied, notwithstanding the fact that there were vacant offices two floors down in the building. By contrast, when a white female co‐worker requested in February or March 2014 that her office be moved due to a medical condition, her request was granted.

 

II

McCray’s Reasoning That a Delay in Providing an Adequate Replacement Van Was Actionable

 

  1. Rehabilitation Act requires a federal employer to reasonably accommodate the known physical and mental disabilities of a qualified employee.
  2. The Rehabilitation Act incorporate the standards of the ADA when determining whether an employer had discriminated against an employee. Therefore, cases under both statutes are looked to in evaluating an employer’s compliance with that duty.
  3. Plaintiff alleged that he had a variety of physical and mental conditions that could obviously affect major life activities. He also alleged that prior to 2012, he had been able to perform the essential functions of the job without any accommodations, and that all he needed to continue was a new van to resolve the difficulty have begun to experience with his knee.
  4. An unreasonable delay in providing an accommodation for an employee’s known disability can amount to a failure to accommodate his disability that violates the Rehabilitation Act.
  5. Whether a particular delay qualifies as an unreasonable one necessarily turns on the totality of the circumstances, including but not limited to looking at such factors as: 1) the employer’s good faith in attempting to accommodate the disability; 2) the length of the delay; 3) the reason for the delay; 4) the nature, complexity, and burden of the accommodation requested; and 5) whether the employer offered alternative accommodations.
  6. Plaintiff informed his supervisor that the van he was driving was causing him pain when he was driving and an ergonomics specialist agreed that he needed a different van. Replacing the van was not an especially complex or burdensome accommodation since new vans were given to all counselors in the following year. Plaintiff also raised the issue at weekly staff meetings with his supervisor, and yet the only interim accommodation he was offered was a van that was even worse in material respects.
  7. The employer had no dialogue with the plaintiff about what else could be done and on what timeline. Such a lack of dialogue could be understood to violate the employer’s duty to engage in the interactive process with its employee to arrive in an appropriate accommodation. It is also evidence of the employer’s lack of good faith.
  8. None of the other cases cited by the defendant, which were summary judgment matters, suggest that a delay in granting a reasonable accommodation of any particular duration will be invariably reasonable regardless of the surrounding circumstances.

II

McCray’s Reasoning with Respect to Failing to Reassign Plaintiff or Give Him a New Office

 

  1. It is unclear whether the failure to reassign or to give plaintiff a new office is a failure to accommodate claim or a retaliation claim.
  2. Such confusion can be cleared up because the case is remanded for further proceedings and plaintiff can then clarify and support that claim.

III

Di Franco Facts Taken Directly from the Opinion

 

Marco suffered from cystic fibrosis, a permanent and progressive lung disease, and cystic fibrosis-related diabetes. Doc. 1 at ¶ 9. At the time of his death, he was employed by the City as a CPD police officer. Id. at ¶ 1. Marco informed the City of his cystic fibrosis and cystic fibrosis-related diabetes when he began working for CPD in May 1998. Id. at ¶ 11. In 2005, Marco was assigned to the Narcotics Division, which required him to work at CPD’s Homan Square facility and in the field. Id. at ¶¶ 12-13.

On March 9, 2020, in response to the COVID-19 outbreak, the Governor of Illinois issued a Disaster Proclamation, and on March 13, the President declared a National Emergency. Id. at ¶¶ 19, 21. COVID-19 can lead to “serious, long-term complications in some cases, including inflammation and clogged air sacs in the lungs, restriction of the body’s oxygen supply, blood clots, organ failure, liver damage, intestinal damage, heart inflammation, neurological malfunction, and acute kidney disease.” Id. at ¶ 15. According to the Centers for Disease Control and Prevention (“CDC”), individuals with underlying medical conditions, such as lung disease and diabetes, face an increased risk of severe illness and death from COVID-19. Id. at ¶ 16.

On March 19, 2020, Marco received an email from CPD’s Chief Communications Officer advising all CPD employees of the CDC’s guidance that individuals with “health conditions like heart disease, diabetes, and lung disease are more likely to have serious illness” if they contract COVID-19. Id. at ¶ 22; Doc. 1-2 at 9. The email instructed employees who “believe[d] that [their] . . . medical condition places [them] at a higher risk of serious illness from COVID-19” to “contact the Medical Section of the Chicago Police Department to discuss next steps.” Doc. 1 at ¶ 22; Doc. 1-2 at 9. The Medical Section oversees and approves medical and sick leaves for CPD employees. Doc. 1 at ¶ 23. The email further instructed “[s]worn [m]embers” like Marco to “have your healthcare provider provide documentation related to your condition to medical.section@chicagopolice.org,” and stated that, “[o]nce your documentation is reviewed by the Medical Director, you will be contacted by Medical Services staff for instructions.” Id. at ¶ 25; Doc. 1-2 at 9.

Less than two hours after Marco received the email, his doctor sent a letter to the Medical Section stating that Marco had cystic fibrosis and cystic fibrosis-related diabetes. Doc. 1 at ¶ 26; Doc. 1-2 at 11. The letter further stated that, “[w]ith this underlying lung condition and these comorbidities, [Marco] is at higher risk of developing serious illness from COVID-19,” and asked that he “be given the opportunity to work remotely or be provided with alternative accommodations to distance himself from others while at work.” Doc. 1 at ¶ 26; Doc. 1-2 at 11.

While that request was pending, Marco was required to and did continue reporting for work at Homan Square and in the field. Doc. 1 at ¶ 27. On March 20, Marco called the Medical Section about his accommodation request and was told that someone would call him back. Id. at ¶ 28. He did not receive a call back that day. Id. at ¶ 29. On March 21, Marco called the Medical Section six times, but nobody answered his calls, and he could not leave a voicemail because the Medical Section’s voicemail inbox was full. Id. at ¶¶ 30-31. Also on March 21, Marco emailed the Medical Section a signed “Employee Self-Certification of Medical Condition” form certifying that he had a serious chronic medical condition placing him at an increased risk for contracting or suffering from complications of COVID-19. Id. at ¶ 32; Doc. 1-2 at 13. Later that day, a non-medical member of the Medial Section told Marco that a doctor employed by the City would review his accommodation request and contact him. Doc. 1 at ¶ 33. No City doctor contacted Marco on either March 21 or March 22. Id. at ¶ 34.

On March 23, Marco received a call from his commanding officer, Commander Ronald Kimble, who had learned from CPD’s Human Resources Department about his accommodation request. Id. at ¶ 36. Kimble “berated” Marco for submitting the request and accused him of trying to draw attention to himself. Id. at ¶ 37. Marco explained the severity of his cystic fibrosis and cystic fibrosis-related diabetes, and said that his sister, who had the same conditions, had died after being infected by a communicable virus. Id. at ¶ 38. Kimble continued to berate Marco, telling him to retire or to go on disability instead of seeking medical leave or placement on “sworn medical roll,” which “has a negative stigma” at CPD. Id. at ¶ 39. Kimble then ordered Marco to advise his sergeant, Sergeant Mark Vanek, of his conditions and of his request for an accommodation, which Marco did that day. Id. at ¶¶ 40-42.

After speaking to Vanek, Marco went to the Medical Section to inquire about the status of his accommodation request, as he still had not been contacted by a City doctor. Id. at ¶ 43. Marco was again advised by non-medical staff that a City doctor would review his request and contact him. Id. at ¶ 44.

From March 19 through March 27, despite his continued inquiries, Marco was not contacted by a City doctor regarding his accommodation request. Id. at ¶¶ 45-46. During that time, as required by CPD policy, Marco continued to report to work at Homan Square, as he had neither received information about his accommodation request nor received clearance from the City to take medical leave. Id. at ¶¶ 45, 47. To access the Homan Square facility, Marco had to place his palm on a biometric palm scanning system, which was used by hundreds of individuals per day and was not sanitized between uses. Id. at ¶¶ 48-51. Marco also had to take communal elevators, in which he came into contact with individuals from other CPD departments who were not wearing masks. Id. at ¶ 52.

On March 28, Marco began experiencing COVID-19 symptoms. Id. at ¶ 53. Around the same time, he was told that three individuals with whom he had been in contact at Homan Square during the previous week had tested positive for COVID-19. Id. at ¶ 54. At least one other detective in the building had also tested positive. Ibid. The next day, on March 29, Marco tested positive for COVID-19. Id. at ¶ 55. Between March 29 and April 2, Marco continued to attempt to contact CPD and the Medical Section about his accommodation request, but he was ignored. Id. at ¶¶ 57, 59, 61. He was never contacted by a City doctor about his accommodation request, nor was his request approved. Id. at ¶ 60. The City and CPD did grant accommodation requests made by other officers and employees, some of which had been submitted after Marco’s. Id. at ¶ 62.

Marco died on April 2 of COVID-related complications. Id. at ¶ 56. CPD classified his death as being in the line of duty. Id. at ¶ 58. On September 18, 2020, in her capacity as the independent administrator of Marco’s estate, Maria cross-filed charges with the Illinois Department of Human Rights (“IDHR”) and the U.S. Equal Employment Opportunity Commission (“EEOC”), alleging ADA and IHRA violations. Id. at ¶ 5. The IDHR and EEOC sent Maria right-to-sue letters, id. at ¶¶ 6-7, after which Maria timely filed this suit.

IV

DiFranco’s Reasoning That Failure to Accommodate Claims Can Proceed

  1. Under the ADA, discrimination includes not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability in the absence of an undue hardship on the operation of its business.
  2. Establishing a claim for failure to accommodate, means that a plaintiff has to show: 1) he is a qualified individual with a disability; 2) the employer was aware of his disability; and 3) the employer failed to reasonably accommodate the disability.
  3. An unreasonable delay in providing an accommodation for an employee’s known disability can amount to a failure to accommodate his disability.
  4. Citing to McCray, above, the court said that whether a particular delay qualifies as unreasonable turns on the totality of the circumstances and cited to the McCray factors.
  5. Plaintiff’s allegations give rise to a plausible inference that the City’s delay in responding to plaintiff was unreasonable given the circumstances presented by Covid-19 pandemic and was also in bad faith. In particular, plaintiff alleged: 1) that the medical section failed to respond to his request for an accommodation despite his repeated and diligent effort to follow up on his initial request; 2) plaintiff also alleged that the City was aware that Covid-19 posed serious health risk individuals with lung disease and diabetes; 3) the City knew that plaintiff suffered from those conditions; 4) Cmdr. Kimble berated him for requesting an accommodation; and 5) the City managers in the pertinent timeframe did grant other employees’ accommodation requests. Therefore, these allegations are such that the court cannot hold on the pleading that the City’s failure to take action on plaintiff’s accommodation request within 10 days was not unreasonable.

V

DiFranco’s Reasoning That the ADA and IHRA Discrimination Claims Get Tossed

  1. failure to accommodate claims are separate and distinct under the ADA from claims alleging disparate treatment because of a disability.
  2. The essence of a failure to accommodate claim is that the plaintiff asked to be treated differently based on his disability-to be allowed to work remotely or socially distant from his co-workers-but that the Chicago Police Department failed to grant his request. Such allegations cannot be repackaged as a discrimination claim because the claim’s focus is that the Chicago Police Department did not treat plaintiff differently based on his disability.
  3. Plaintiff’s allegation that she was berated for requesting an accommodation by a commanding officer does not support a discrimination claim either because a single hostile call from a supervisor does not rise to the level of materially adverse employment action.

Separately, the defense argued that the Illinois wrongful death act was preempted by the Illinois pension code, but the court wasn’t buying it.

 

 

 

VI

Thoughts/Takeaways From McCray and DiFranco

 

  1. In the Seventh Circuit, a failure to accommodate claim is a separate cause of action.
  2. Slow walking a delay in processing a reasonable accommodation request is a very bad idea. Even a short amount of time for processing the request may be an unreasonable delay as seen in DiFranco.
  3. McCray does a good job of laying out factors that can be used to figure out whether an unreasonable delay in granting a reasonable accommodation exists.
  4. A failure to accommodate claim cannot be repackaged as a disparate treatment claim without more.
  5. The ADA definitely applies to hostile work environment, see this blog entry for example, but what is a hostile work environment can be a moving target.
  6. You run into trouble when you treat people in protected groups differently from other protected groups in a way that doesn’t make any sense, such as being selective about when you grant accommodations.
  7. The Rehabilitation Act and the ADA get treated the same way. There are differences between the two laws (§504 causation, emotional distress damages if it is a matter involving title II or title III, and program accessibility for example), but the differences are not many.
  8. Undue hardship can either be financial (very difficult to show), or operational (best to think of that as a fundamental alteration).
  9. A bad idea to prorate an employee for requesting a reasonable accommodation. Such conduct raises the issue of hostile work environment. It also raises the issue of retaliation as well.
  10. Otherwise qualified (Rehabilitation Act), and qualified (ADA), mean the same thing.
  11. Remember the do’s and don’ts of the interactive process, here, and be sure to engage in the interactive process.
  12. While both of these cases discussed in this blog entry are title I cases, I see no reason why an unreasonable delay being actionable could not extend to title II and title III cases as well.

There must be an art to reading what is really going on by the questionings of Justices at oral argument. If there is such an art, I haven’t mastered it yet. Case in point, we previously discussed a case that appeared to raise the question of whether Chevron deference would survive, here. On June 8, 2022, Justice Kavanaugh wrote a unanimous opinion for the court completely ignoring the Chevron question and holding that the case could be resolved strictly by a matter of statutory interpretation. So, we will have to wait for another day to see if the Supreme Court wants to take on Chevron deference in a way that it took on Auer deference in Kisor, which we discussed here.

 

The case of the day, Pierre v. Midland Credit Management, Inc. is actually a dissenting opinion filed in response to the denial of a request for an en banc rehearing denial and its dissenting opinion here, involving the question of whether emotional distress was sufficient to confer standing on a plaintiff when the defendant violated her rights under the FDCPA (FDCPA), in trying to collect zombie debts- debts where the defendant knew the statute of limitations had expired. The panel had said there was not standing and the plaintiff asked for a rehearing en banc. A majority of the Seventh Circuit decided against granting the rehearing but four judges dissented. The dissenting opinion as to why emotional distress justify standing in FDCPA cases is instructive because it become crystal clear that such arguments will not carry over to title III or for that matter to title II of the ADA. As usual the blog entry is divided into categories and they are dissenting opinion as to why emotional distress justifies standing under the FDCPA, and thoughts/takeaways. The nature of this blog entry pretty much assumes that the reader will read the whole thing, but I suppose you could have a reader that focuses on either of the categories as well.

 

I

Dissenting Opinion as to Why Emotional Distress Justifies Standing under the FDCPA

 

  1. The Supreme Court has made clear that an intangible injury can be a concrete injury for purposes of standing. The question is when is an intangible injury sufficiently concrete.
  2. In figuring out whether an intangible injury is sufficiently concrete, both history and the judgment of Congress play important roles. In particular, courts have to consider whether an alleged intangible harm has a close relationship to a harm that has traditionally been regarded as providing a basis for a lawsuit in English or American courts. Courts also have to treat the judgment of Congress as, “instructive and important.”
  3. Plaintiff proved all elements of a FDCPA claim for deceptive and unfair practices. She also offered evidence of harms lying close to the heart of the protection Congress reasonably offered consumer debtors in the FDCPA. Also, those harms bear a very close relationship to harms long recognized under the common law and constitutional law.
  4. The FDCPA in its statutory finding talks about marital instability and the prohibitions on using threats, obscene language, and harassing calls. As such, Congress recognized how such abusive practices can upset the lives of those targeted by debt collectors.
  5. The emotional distress, confusion, and anxiety suffered by the plaintiff in response to the zombie debt collection effort fits well within the harms expected from many of the abusive practices listed in the statute.
  6. The opinion cited another Seventh Circuit concurring opinion that highlighted Congress’s judgment about the need to protect consumers from abusive debt collection practices and its choice to rely on private enforcement. In particular, it ignores the findings of Congress, constitutes a direct affront to a congressional prerogative at the core of legislative function, and ignores the reality of everyday life when a person receives a letter demanding money that is not owed. The failure to recognize an injury that Congress saw and addressed testifies to the failure of courts to appreciate how the people courts judicially govern live. It also testifies to the court’s failure to defer to congressional appreciation as to how citizens live.
  7. The emotional distress, anxiety, fear, and stress experienced by the plaintiff was foreseeable, even intended, responses to defendant’s attempt to collect a zombie debt. Congress authorized damages for such harms and that demand is well within congressional legislative power over interstate commerce to go beyond the common law.
  8. Other FDCPA violations parallel the tort of invasion of privacy, including its branches for intrusion upon seclusion, unreasonable publicity given to a person’s private life, and false light. None of those torts involve tangible injuries and all of those have been around for some time.
  9. The tort of assault is the fear and emotional distress of being attacked and standing is never an issue there.
  10. With respect to intentional and reckless conduct, the common law has long supported damages for emotional distress.
  11. Congress is not required in its enactments to have congruence with the common law.
  12. The fear, anxiety, confusion, and more general emotional distress fits comfortably within the common law of torts.
  13. The Seventh Circuit’s pattern jury instruction for §1983 claims say jurors have to consider mental and emotional pain and suffering.
  14. Damages for intangible injuries are appropriate for denials of free speech, free exercise of religion, or due process of law as well. They are also available for intrusions on privacy and for excessive force cases under the fourth amendment.
  15. The general rule is that nominal damages are available and even presumed where a plaintiff proves a violation of her legal rights. If that is correct under both the common law and on the constitutional law, it is difficult to see why Congress cannot authorize a modest damage remedy under the FDCPA when a plaintiff’s statutory rights are violated.
  16. The idea that intangible harms like emotional distress are not sufficient to support article III standing is simply wrong-especially when Congress has authorized such claims under a federal statute.
  17. The Seventh Circuit cases of late have restricted standing so sharply that the FDCPA very close to being completely neutered in Illinois, Wisconsin, and Indiana.
  18. Plaintiff testified in detail about the letter demanding that she pay a debt that was known longer owed and her reaction to that letter.
  19. The panel got it wrong when it said that emotional distress and other psychological states can never support standing under the FDCPA.
  20. With respect to figuring out when nominal damages are authorized under a statute, a good idea would be to look to Justice Thomas’s opinions in the Supreme Court cases of Spokeo and TransUnion (TransUnion we discussed here). In those opinions, Justice Thomas talked about private rights and public rights with courts having jurisdiction over actions without a showing of actual damages for rights privately held by an individual and not for rights broadly owed to the community. Adopting Justice Thomas’s private versus public right distinction could go a long way to clearing up Supreme Court precedents on nominal damages with its recent opinions on standing for intangible injuries. It also provides a clear and manageable line between standing when a private right under the statute is involved v. the universal standing feared by the panel in this case and similar cases.

 

II

Thoughts/Takeaways

 

  1. It is absolutely true that the Supreme Court has held that testers have standing when it comes to the Fair Housing Act. However, the Fair Housing Act has specific references to foreseeable emotional harms within its statute (see this blog entry for a further discussion).
  2. Title III of the ADA only allows for injunctive relief and attorney fees.
  3. As we discussed here, the Rehabilitation Act does not allow for emotional distress damages.
  4. Hard to believe that in a title II or III matter that a court could find a history showing how damages for discrimination against a person with a disability have been around for a long time. A court is also going to have a problem with the judgment of Congress prong as well because of the statutory provisions of both the Rehabilitation Act and title III of the ADA. The statutory provisions of the Rehabilitation Act are important because title II of the ADA specifically hooks into Rehabilitation Act for its remedies. The remedy provisions for §504 of the Rehabilitation Act, 29 U.S.C. §794a, do not mention emotional distress damages being available for §504 violations.
  5. There isn’t anything in 42 U.S.C. §12101 (the ADA’s findings section), explicitly addressing intangible harms. You simply do not see language like you do in the FDCPA that foreseeably leads to the conclusion that emotional distress is in play.
  6. Applying Justice Thomas’s private versus public right distinction is of no help because disability discrimination would be a public right.
  7. One can expect that defense counsel when dealing with architectural accessibility cases or website accessibility cases under title III of the ADA in particular to reflectively take the position that an ADA tester can never have standing. They could also do that with respect to title II, assuming a tester is involved, because of the remedies for title II linking to the Rehabilitation Act remedies, which the Supreme Court has held emotional distress damages are not available, as we discussed in this blog entry. To phrase it another way, the argument against testers having standing under the ADA or §504 of the Rehabilitation Act is that the injury being alleged as the basis for standing is not something contemplated as an injury allowed by the statute or by Supreme Court decision.
  8. With respect to employment matters, assuming testers can be in play in that situation, you get to a completely different place because the relevant statutory provisions do authorize emotional distress damages as we discussed when mentioning the petition for rehearing in Cummings, here. Whether that petition gets granted is anybody’s guess. If that petition gets granted, what the Supreme Court opinion would look like is also anybody’s guess.

Last week my schedule was completely impossible, so I was not able to get a blog up during the work week. Finally, I got some time to do it now. The blog entry for the last week is a Statement of Interest filed by the DOJ in A.V. v. Douglas County School District Re-1. If the name Douglas County School District is familiar, that is because it frequently comes up in disability rights matters. For example, the Endrew decision, here, involved the Douglas County School District. In the Statement of Interest, the DOJ goes all in on the ADA being a nondelegable duty. That the ADA is a nondelegable duty should not surprise readers of this blog because we previously discussed that here, and I return to the concept frequently. The principle is so important that I continually list the ADA being a nondelegable duty blog entry in my greatest hits section even though it is never one of the 10 most popular blog entries of a particular year. As usual, the blog entry is divided into categories and they are: facts; DOJ reasoning that the ADA is a nondelegable duty; and thoughts/takeaways. Of course, the reader is free to concentrate on any or all of the categories. Finally, there are a couple of times in this blog entry where I am paraphrasing very closely DOJ interpretive guidance stated in the Statement of Interest, so you do not see quotations there but very close paraphrasing.

 

I

Facts

 

In this particular case, three school resource officers behaved in a way that arguably violated a student rights as a person with the disability by doing among other things interrupting the de-escalation process with the school psychologist, arresting him, and leaving him handcuffed and locked in a patrol car for several hours. The original complaint alleged that the school district was a joint employer, but the court threw that complaint out. The student then filed an amended complaint saying that the school district had a nondelegable duty to the student and was therefore liable for the actions of the security guards.

 

II

DOJ’s Reasoning That the ADA Is a Nondelegable Duty

 

  1. Title II of the ADA creates an affirmative obligation on a public entity to avoid discrimination in the provision of any of services, programs, and activities. This obligation remains when providing its services, programs, or activities either directly or through contractual or other arrangements.
  2. School districts cannot divest themselves of responsibility for the lawful administration of any of their programs by contracting with school resource officers, private security guards, or any other contractors.
  3. Title II of the ADA covers all services, programs, or activities of the public entity and draws no distinction between a program provided directly by the public entity and a program provided through a contractual or other arrangement.
  4. 28 C.F.R. §35.130(b)(1) provides that a public entity may not discriminate in the provision of its services, programs, and activities whether directly or through contractual licensing, or other arrangements. 28 C.F.R. §35.130(b)(3) [there is a typo in the Statement of Interest whereby this is listed as §36.130(b)(3), which is not correct].
  5. The title II regulations are entitled to substantial deference per Chevron.
  6. Commentary to the title II implementing regulations, 28 C.F.R. part 35, app. B (commentary §35.102, states: all governmental activities of public entities are covered, even if they are carried out by contractors. For example, a state is obligated by title II to ensure its services, programs, and activities of a state park that is operated under contract by a private entity are in compliance with title II’s requirements. The private entity operating the inn would also be subject to the obligation to public accommodations under title III of the act and the department’s title III regulations at 28 C.F.R. part 36.
  7. Similarly, DOJ has elaborated in the context of correctional facilities at 28 C.F.R. part 35, app. A (commentary §35.152), that: title II requirements apply to correctional facilities used by State or local governmental entities, irrespective of whether the public entity contracts with another public or private entity to build or run the correctional facility. If a prison is occupied by State prisoners and is inaccessible, the State is responsible under title II of the ADA. The same is true for a county or city jail. In essence, the private builder or contractor operating the correctional facility does so at the direction of the governmental entity. Further, even if the State enters into a contractual, licensing, or other arrangement for correctional services with a public entity having its own title II obligations, the State is still responsible for ensuring the other public entity complies with title II in providing the services.
  8. The department’s regulatory guidance reflects the agency’s authoritative, expertise-based, fair and considered judgment per Kisor v. Wilkie, which we discussed here. In fact, in Kisor, the majority opinion used DOJ’s regulatory guidance to the ADA as an example of where Auer deference applies after Kisor.
  9. The plain text of the ADA, its implementing regulations, and regulatory guidance make clear that a public entity cannot contract away its legal obligations. Instead, a public entity maintains its legal duty and remains liable for harm in its services, programs, and activities regardless of how it decides to structure or staff those services.
  10. The 10th Circuit has held with respect to the Colorado Department of Corrections, that a public entity cannot contract away at liability under title II of the ADA, and that the State Department of Corrections could be held liable for discrimination by a subcontractor, a community correction program. In that case, the 10th Circuit said that the state entity’s services include a program undertaken to third parties by means of contracting and other arrangements. The 10th Circuit also said that while the state entity could farm out operation to others, doing so would not prevent liability under the ADA or the Rehabilitation Act. Further, that particular decision did not even discuss joint employees because such a finding was not necessary to find Colorado liable.
  11. The Ninth Circuit has also said that the State of California continued with its title II duty to state inmates who were housed in county jails and could be held liable for a county’s failure to provide those inmates with reasonable accommodation for their disabilities.
  12. A District Court in Indiana held that title II obligations apply to the State of Indiana when it contracted with a private company to provide medical services to inmates. Other district courts have held similarly in a variety of situations.
  13. Douglas County’s reliance on a title I case doesn’t work because this is not a title I case but a title II case. (See also thought/takeaways #3).
  14. DOJ has made clear in a regulatory guidance that even if a State enters into a contractual, licensing or other arrangement for services with a public entity that has its own title II obligations, the State is still responsible for ensuring that the other public entity complies with title II in providing those services. As such, the fact that the sheriff’s office also has responsibility under title II, and may be liable for the security resource officer’s action does not negate the school district’s own legal responsibility to ensure that all of its activities, including a school safety program, are carried out in a nondiscriminatory manner. In this kind of situation, imposing title II obligations on both entities is entirely consistent with the text and the purpose of the ADA.
  15. The school district trying to carve out certain types of contracts from its liability doesn’t hold up because there is no textual basis in the ADA or in its implementing regulations to support such a limitation.
  16. While a school district is certainly primarily responsible for providing educational services, and engages in many other services, programs, or activities, including transporting children, preparing and serving food, promoting student health, and constructing and maintaining buildings, a school district can no more allow the contractors it selects to provide those services to discriminate then it could allow discrimination by a person contracted by the school to proctor its examinations.
  17. A school district is required to use all its authority to address and fight discrimination occurring within any of its programs, services, or activities. The amended complaint alleges that the security resource officers program is a program of the school district and that the building principal is responsible for the supervision and implementation of that program.

 

III

Thoughts/Takeaways

 

  1. This is not the first time we have talked about nondelegable duty. As I mentioned above, one of my most important blog entries even if it is not the most popular from year to year is this one where the Nevada Supreme Court held that the ADA was a nondelegable duty, here. That case did not involve a public entity but rather an architectural firm, which is a title III entity.
  2. The DOJ with this Statement of Interest has gone all in on the ADA being a nondelegable duty.
  3. In addition to the title II regulations discussed in this blog entry, title III’s final implementing regulations, 28 C.F.R. §36.204, and title I’s final implementing regulations, 29 C.F.R. §1630.6, both prohibit using contracting to discriminate against persons with disabilities with respect to individuals served by the covered entity.
  4. It is not unusual for entities to contract out for all kinds of reasons. If doing so, an entity should strongly consider a reimbursement agreement rather than indemnification agreements. A reimbursement agreement involves the entity paying out everything as a result of what went wrong and then seeking reimbursement later. Whereas an indemnification agreement involves an entity shifting off its responsibility to somebody else. The former may very well work, see here for example, but the latter, see here, definitely will not.
  5. As a result of Kisor explicitly using the DOJ regulatory guidance as an example of regulatory interpretations passing Auer deference, the DOJ interpretations of their final implementing regulations of the ADA have to be taken very seriously. It also means that DOJ’s ADA final implementing regulations get Chevron deference.
  6. Can you be both a title II and a title III entity simultaneously? I don’t see it unless the title III entity is a state actor per this case.
  7. The DOJ Statement of Interest discussed in this blog entry has huge implications with respect to the relationship between licensing boards and professional recovery programs, which is a topic we discussed here.
  8. As a matter of preventive law, it would be wise to just assume that the ADA imposes a nondelegable duty regardless of whether a title I, title II, or title III is involved.

Earlier today, I counted the number of cases I had in my pipeline. It came to two dozen. Ultimately, I chose the case of Panarra v. HTC Corporation et. al., here. It is a cutting edge case exploring whether the programming offered in virtual reality headsets needs to be accessible to the Deaf, deaf, and hard of hearing communities. As usual, the blog entry is divided into categories and they are: facts taken directly from the opinion; plaintiff sufficiently alleged that Viveport Infinity is a place of public accommodation; plaintiff sufficiently alleged denial of access in contravention of the ADA; plaintiff sufficiently alleged that Vivepoint Infinity owns, leases, and/or operates a place of public accommodation; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

I

Facts Taken Directly from the Opinion

Plaintiff is profoundly deaf and his hearing and speaking abilities are limited. ECF No. 39 ¶ 6. He is a “big fan” of video games and has played them “all his life.” Id. ¶ 20. Plaintiff owns a device called an Oculus Rift which is a VR headset he uses to play VR video games and experience VR content.[1] Id. ¶ 21.

Defendants “are one of the biggest electronics companies in the world” and they “operate an online VR subscription service called Viveport Infinity.” Id. ¶ 14. Viveport Infinity is “the Netflix of VR” and offers “unlimited access to . . . thousands of VR content, including games, videos, and other apps and programs.” Id. ¶ 14-15. Like Netflix, subscribers can access Viveport Inifinity’s content from the comfort of their own homes. ECF No. 39 ¶ 19.

In addition to access to “more than $10,000 worth of critically acclaimed titles,” Viveport Infinity subscribers get “exclusive offers.” Id. ¶ 15. Currently, Viveport Infinity is the only subscription-based platform offering VR content. Id. ¶ 16.

Plaintiff’s Oculus Rift headset is compatible with Viveport Infinity. Id. ¶ 21. He would like to subscribe to Viveport Infinity and use its content but has not done so “because Defendants have failed to provide closed captioning on its VR content.” Id. ¶¶ 35-36. Closed captioning “is a system that displays text on video content,” and, as such, it allows “deaf and hard of hearing individuals [to] have the opportunity to enjoy movies or videos by reading the captioned text.” ECF No. ¶ 17. Since Plaintiff is deaf, he “requires closed captions to meaningfully access and understand any video content that has audio portions.” Id. ¶ 20.

While some of Viveport Infinity’s content does offer closed captioning, many titles in its catalog do not—unlike Netflix which “provides closed captions or subtitles for all its content.” Id. ¶ 18. Viveport Infinity’s failure to provide closed captioning renders much of its content inaccessible to Plaintiff and “other deaf and hard of hearing individuals.” Id. ¶¶ 20, 23. Without closed captions, Plaintiff cannot “understand and follow the audio portions of various VR content” and he therefore “cannot fully and equally enjoy [Viveport Infinity’s] services.” Id. ¶ 24. This “increas[es] the sense of isolation and stigma” felt by Plaintiff and others like him as they “cannot enjoy VR and video games and cannot share the experience with their families or friends.” ECF No. 39 ¶ 31. Furthermore, it prevents Plaintiff from participating in the “latest . . . trends and issues” in the VR game-playing community. Id. ¶ 33. This causes Plaintiff “frustration, anxiety, humiliation, loss of enjoyment, and anger.” Id. ¶ 34.

II

Plaintiff Sufficiently Alleged That Viveport Infinity Is a Place of Public Accommodation

  1. The ADA defines a place of public accommodation as anything fitting into one of the categories listed in 42 U.S.C. §12181(7).
  2. While the Second Circuit has not yet considered a case where a defendant operated no physical space open to the public but nevertheless provided goods or services to the public, a handful of district courts in the Second Circuit have interpreted analogous cases to imply that title III of the ADA extends to online fora offering goods and services.
  3. The court adopts and agrees with the statutory interpretation discussed at length in National Federation of the Blind v. Scribd Inc., which we discussed the settlement of here. Regarding that decision, which we discussed here, the court said as follows: 1) the meaning of public accommodation under the ADA is ambiguous; 2) adopting a narrow interpretation of what is a place of public accommodation by requiring a physical structure or some connection to a physical threshold results in arbitrary treatment; 3) the ADA’s legislative history requires a resolution of any ambiguity in favor of the plaintiff because the Internet plays such a critical role in the personal and professional lives of Americans so that excluding persons with disabilities from access to covered entities that use it as their principal means of reaching the public defeats the purpose of the ADA; and 4) adopting such a narrow interpretation would run afoul of the purposes of the ADA and severely frustrates Congress’s intent that individuals with disabilities fully enjoy the goods, services, privileges, and advantages available indiscriminately to other members of the general public.
  4. In a footnote, the court says that a limiting principle is required otherwise everything on the Internet would be a place of public accommodation. This case involves a service akin to Netflix, which involved services for streaming movie and television programming. It is also akin to Scribd, which involved services for accessing collection of e-books, academic papers, legal filings, and other user-uploaded digital documents.
  5. The virtual reality programming could be: 1) a service establishment in that it provides customers with the ability to stream video programming through the Internet; 2) a place of exhibition in that it displays movies, television programming, and other content; or 3) a rental establishment in that it engages customers to pay for the rental of video programming.

 

 

III

Plaintiff Sufficiently Alleged Denial of Access in Contravention of the ADA.

  1. The ADA regulates access to goods and services but not the kind of goods and services offered by the regulated entity.
  2. Even for goods and services, the ADA requires that regulated entities ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps fundamentally alters the nature of the good or service or results in an undue burden.
  3. Where equal access is in question, the ultimate decision as to what measures to take rests with the place of public accommodation provided that the method chosen results in effective communication.
  4. While no one specific form of auxiliary aid is mandated to make out a claim under this theory, a plaintiff must plead facts indicating that a defendant refused her any means of effective communication with respect to the goods or services in question.
  5. Plaintiff alleged that: 1) Viveport Infinity is currently the only subscription-based platform offering virtual reality content; 2) defendants failed to provide closed captioning on its virtual reality content; 3) defendant’s failure to provide closed captioning renders much of its content inaccessible to plaintiff and other Deaf, deaf and hard of hearing individuals; and 4) plaintiff cannot understand and follow the audio portions of various virtual reality content and therefore cannot fully and equally enjoy defendant’s services. As such, a plausible inference exists that the defendant did not offer any legally sufficient auxiliary aids.

IV

Plaintiff Sufficiently Alleged That Viveport Infinity Owns, Leases, and/or Operates a Place of Public Accommodation

  1. At the motion to dismiss stage, plaintiff’s allegations that the defendants own, lease, and/or operate a place of public accommodation and that they have the ability to caption all of their content just like Netflix captions all of their content is sufficient to get past a motion to dismiss.
  2. Defendants contention that there is a lack of sufficient facts to establish that they control, or operate the VR content, or that they have necessary intellectual property ownership or permission from the owners of the virtual reality content to caption the content is an issue for discovery and not an issue on a motion to dismiss.

V

Thoughts/Takeaways

  1. There are two issues in this case: 1) is a place of public accommodation involved; and 2) just what is possible with respect to providing effective communications. In other words, effective communications are an additional obligation that places of public accommodation face, as well as governmental entities for that matter.
  2. The current status of the case is that an answer has now been filed.
  3. The attorney representing the plaintiff in this case, Andrew Rozynski, is the same attorney who filed a petition for rehearing in Cummings.
  4. With respect to what is a place of public accommodation, this court adopts the Scribd approach, which asks whether what is going on is of the type listed in one of the categories in 42 U.S.C. §12181(7).
  5. Look for the Supreme Court to eventually get involved in trying to figure out just how a place of public accommodation is defined. The two most common approaches in the courts are the gateway theory, which can mean different things in different courts, and the, “of the type” listed in 42 U.S.C. §12181(7), which this court adopts. Hazarding a guess as to what the Supreme Court will do is a fools errand. However, the Supreme Court very well may have telegraphed where it is going with its South Dakota v. Wayfair decision, which we discussed here. I certainly believe a plaintiff would run a risk of legal malpractice if they don’t bring up the South Dakota v. Wayfair decision to the Supreme Court when arguing whether an Internet only business is a place of public accommodation.
  6. Plaintiff’s are not out of the woods yet because the court said that there may be issues of intellectual property ownership in getting permission from owners so as to show that the defendant do not control or operate the virtual reality content. Definitely look for the defendants to push that as it goes through discovery.
  7. This is not a tester situation because plaintiff alleged that he already has and uses a virtual reality headset to play virtual reality videogame and experienced virtual reality content.
  8. Readers may also want to reread Silva I, which we discussed here.

 

 

 

 

Today’s blog entry takes a look at three different cases that either expand on prior blog entries or talk about subsequent developments with prior blog entries. This week is absolutely crazy for me as my daughter is graduating high school this week, probably on Friday, and we have company coming in today. So, the blog entry will be pretty short despite covering three different cases. As usual the blog entry is divided into categories and they are: DOJ statement of interest in State of Illinois v. CSL Plasma, Inc.; ADA testers have to show more than just testing a website for ADA compliance in order to have standing; and a Cummings update.

 

I

DOJ Statement of Interest in State of Illinois v. CSL Plasma, Inc.

 

CSL plasma is back for discussion with another case where they are arguing that they are not a place of public accommodation. This one is before Judge Roland in the Northern District of Illinois, Eastern Division. The Eastern Division of Illinois is Chicago and Chicago Metro. We have previously talked about whether plasma centers are a place of public accommodation three times before, see this blog entry. Here, the DOJ takes the position that the 10th Circuit and the Third Circuit are correct in holding that plasma donation centers are service establishments under the plain meaning of title III. They also say that the Fifth Circuit got it wrong when it said that plasma centers were not service establishments. The DOJ conclusion is based upon both a plain reading of the statute, the ADA’s statutory admonition that it needs to be construed broadly, and the ADA’s legislative history. CSL Plasma is a frequent defendant on these matters and is consistent in taking the position that they are not a place of public accommodation. Since there is a circuit court split on the issue, it is only a matter of time before the Supreme Court steps in. I am not at this point in time going to hazard a guess as to what the Supreme Court will do. I have also recently learned that gauging what they will do from oral argument is a very tricky endeavor indeed.

 

II

ADA Testers Have to Show More Than Just Testing a Website for ADA Compliance In Order to Have Standing

 

Previously, I have blogged, such as here, on the courts clamping down on serial plaintiffs and questioning whether tester standing with respect to title II and title III of the ADA is a thing any longer. On that line of cases, the United States District Court for the Northern District of California on May 16, 2022, issued a two-page order dismissing a serial website plaintiff claim in denying leave to amend with respect to the ADA claim. It also declined to exercise supplemental jurisdiction over plaintiff’s Unruh act claim. With respect to supplemental jurisdiction, I previously talked about that in this blog entry.

 

The key element to note about this case are: 1) plaintiff disclaimed any intention to visit the real estate physical office and did not wish to use the real estate website to facilitate access to services or goods beyond the website itself (a pure tester situation); 2) the Ninth Circuit has never held that the inability to access information on a website as a sole basis for an ADA claim is a situation where a plaintiff could bring a title III action; and 3) no allegations were made that the website’s inaccessibility separately impeded access to the goods or services of the public accommodation.

 

In short, one can expect defendants, especially if they have some resources, to fight back seriously against serial plaintiffs alleging that their websites are inaccessible by defending on standing grounds. As mentioned here, the combination of Trans Union and Cummings is going to make the life of testers under title II and title III of the ADA quite difficult.

 

III

Cummings Update

 

The Supreme Court almost never grants re-hearings in a case that is has decided. However, Cummings has filed for a rehearing with the Supreme Court. The basis of the rehearing is that somehow the parties as well as the court missed the important fact that the Rehabilitation Act does allow by statute, 29 U.S.C. §794a(a)(1), for emotional distress damages with respect to employment matters. It is only with respect to nonemployment matters, that the Rehabilitation Act is unclear. Further, as mentioned in my blog entry discussing this case, here, the Supreme Court made a broad holding that spending clause legislation, including the Rehabilitation Act and the Affordable Care Act, simply do not allow for emotional distress damages because of traditional contract principles. So, a rehearing is necessary to clear up that the Supreme Court opinion in Cummings only applies to nonemployment situations with respect to the Rehabilitation Act if the court believes that the explicit statutory provision in the Rehabilitation Act for emotional distress in employment matters does not color the decision with respect to emotional distress claims in nonemployment matters. It will be interesting to see what happens because as the petition for rehearing freely acknowledges, rehearings are just about never granted. If anything, the petition for rehearing is a public facing document offering a roadmap for plaintiffs bringing employment discrimination claims under §504 of the Rehabilitation Act to get around motions by the defense to have their emotional distress component of their claims dismissed. It will be certainly interesting to see what the Supreme Court does.

 

Before signing off, you may wonder why you would bring a §504 of the Rehabilitation Act claim at all in an employment situation and not an ADA title I claim, especially considering the fact that causation under §504 is “solely by reason of,” whereas the ADA per Bostock, which we discussed here, is most likely determining factor. The answer is that the ADA applies to employers of 15 or more individuals. On the other hand, the Rehabilitation Act applies to any entity taking federal funds. So, if an employer has less than 15 people is involved, §504 of the Rehabilitation Act would be the claim alleged and not title I of the ADA.

 

Last week, both the DOJ and the EEOC issued technical assistance memorandums/documents detailing their concerns about using AI in employment. It definitely made big news. As someone who knows individuals have gone through AI processes in hiring, these guidances are not surprising as one just had to figure that AI was being used to screen out people with disabilities. This blog entry is going to be organized a bit differently. The categories are: DOJ AI document key takeaways; and EEOC technical assistance document on AI. My thoughts/takeaways for the EEOC document appear in my thoughts § underneath each section where a thoughts/takeaways exists.

 

I

DOJ AI Document Key Takeaways

 

  1. In employment matters, DOJ enforces disability discrimination laws with respect to state and local government employers.
    • Still a good idea to exhaust administrative remedies with EEOC first.
  1. DOJ will look seriously at whether the AI screens out persons with disabilities.
  2. Employers must use accessible tests measuring the applicant’s job skills and not the disability, or they must make other adjustments to the hiring process so that a qualified person is not eliminated because of a disability.
  3. Know what a reasonable accommodation is.
    • Starting line analogy.
    • DOJ Guidance on AI is here.
  4. Don’t forget about the EEOC guidance on AI in employment, here and immediately below.

 

II

EEOC Technical Assistance Document on AI

 

Employers now have a wide variety of computer-based tools available to assist them in hiring workers, monitoring worker performance, determining pay or promotions, and establishing the terms and conditions of employment. Employers may utilize these tools in an attempt to save time and effort, increase objectivity, or decrease bias. However, the use of these tools may disadvantage job applicants and employees with disabilities. When this occurs, employers may risk violating federal Equal Employment Opportunity (“EEO”) laws that protect individuals with disabilities.

The Questions and Answers in this document explain how employers’ use of software that relies on algorithmic decision-making may violate existing requirements under Title I of the Americans with Disabilities Act (“ADA”). This technical assistance also provides practical tips to employers on how to comply with the ADA, and to job applicants and employees who think that their rights may have been violated.

The Equal Employment Opportunity Commission (“EEOC” or “the Commission”) enforces, and provides leadership and guidance on, the federal EEO laws prohibiting employment discrimination on the basis of race, color, national origin, religion, and sex (including pregnancy, sexual orientation, and gender identity), disability, age (over 40) and genetic information. This publication is part of an ongoing effort by the EEOC to educate employers, employees, and other stakeholders about the application of EEO laws when employers use employment software and applications, some of which incorporate algorithmic decision-making.

Background

As a starting point, this section explains the meaning of three, central terms used in this document—software, algorithms, and artificial intelligence (“AI”) —and how, when used in a workplace, they relate to each other.

  • Software: Broadly, “software” refers to information technology programs or procedures that provide instructions to a computer on how to perform a given task or function. “Application software” (also known as an “application” or “app”) is a type of software designed to perform or to help the user perform a specific task or tasks. The United States Access Board is the source of these definitions.

There are many different types of software and applications used in employment, including: automatic resume-screening software, hiring software, chatbot software for hiring and workflow, video interviewing software, analytics software, employee monitoring software, and worker management software.

  • Algorithms: Generally, an “algorithm” is a set of instructions that can be followed by a computer to accomplish some end. Human resources software and applications use algorithms to allow employers to process data to evaluate, rate, and make other decisions about job applicants and employees. Software or applications that include algorithmic decision-making tools may be used at various stages of employment, including hiring, performance evaluation, promotion, and termination.
  • Artificial Intelligence (“AI”): Some employers and software vendors use AI when developing algorithms that help employers evaluate, rate, and make other decisions about job applicants and employees. In the National Artificial Intelligence Initiative Act of 2020 at section 5002(3), Congress defined “AI” to mean a “machine-based system that can, for a given set of human-defined objectives, make predictions, recommendations or decisions influencing real or virtual environments.” In the employment context, using AI has typically meant that the developer relies partly on the computer’s own analysis of data to determine which criteria to use when making employment decisions. AI may include machine learning, computer vision, natural language processing and understanding, intelligent decision support systems, and autonomous systems. For a general discussion of AI, which includes machine learning, see National Institute of Standards and Technology Special Publication 1270, Towards a Standard for Identifying and Managing Bias in Artificial Intelligence.

Employers may rely on different types of software that incorporate algorithmic decision-making at a number of stages of the employment process. Examples include: resume scanners that prioritize applications using certain keywords; employee monitoring software that rates employees on the basis of their keystrokes or other factors; “virtual assistants” or “chatbots” that ask job candidates about their qualifications and reject those who do not meet pre-defined requirements; video interviewing software that evaluates candidates based on their facial expressions and speech patterns; and testing software that provides “job fit” scores for applicants or employees regarding their personalities, aptitudes, cognitive skills, or perceived “cultural fit” based on their performance on a game or on a more traditional test. Each of these types of software may include AI.

My Thoughts: a nice job of describing the background for the guidance document and providing definitions of key terms.

ADA Basics

  1. What is the ADA and how does it define “disability”?

The ADA is a federal civil rights law. Title I of the ADA prohibits employers, employment agencies, labor organizations, and joint labor-management committees with 15 or more employees from discriminating on the basis of disability. Other parts of the ADA, not discussed here, ensure that people with disabilities have full access to public and private services and facilities.

The ADA has a very specific definition of a current “disability.” A physical or mental impairment meets the ADA’s definition of a current “disability” if it would, when left untreated, “substantially limit” one or more “major life activities.” Major life activities include, for example, seeing, reaching, communicating, speaking concentrating, or the operation of major bodily functions, such as brain or neurological functions. (There are two other definitions of “disability” that are not the subject of this discussion. For more information on the definition of “disability” under the ADA, see EEOC’s Questions and Answers on the ADA Amendments Act.

My Thoughts: I am not sure why the focus is on “current disability.” The ADA prongs are: actual disability, record of disability, and regarded as having a disability. You could have a disability under the ADA if it is not current if you have a record of a disability or you are regarded as having a disability. Certainly, an actual disability needs to be current, but that isn’t how this document is explaining things.

A condition does not need to be permanent or severe, or cause a high degree of functional limitation, to be “substantially limiting.” It may qualify as substantially limiting, for example, by making activities more difficult, painful, or time-consuming to perform as compared to the way that most people perform them. In addition, if the symptoms of the condition come and go, the condition still will qualify as a disability if it substantially limits a major life activity when active. Many common and ordinary medical conditions will qualify.

My Thoughts: interesting that the EEOC refers to “painful.” See this blog entry as to why I found that interesting.

 

  1. How could an employer’s use of algorithmic decision-making tools violate the ADA?

The most common ways that an employer’s use of algorithmic decision-making tools could violate the ADA are:

  • The employer does not provide a “reasonable accommodation” that is necessary for a job applicant or employee to be rated fairly and accurately by the algorithm. (See Questions 4–7 below.)
  • The employer relies on an algorithmic decision-making tool that intentionally or unintentionally “screens out” an individual with a disability, even though that individual is able to do the job with a reasonable accommodation. “Screen out” occurs when a disability prevents a job applicant or employee from meeting—or lowers their performance on—a selection criterion, and the applicant or employee loses a job opportunity as a result. A disability could have this effect by, for example, reducing the accuracy of the assessment, creating special circumstances that have not been taken into account, or preventing the individual from participating in the assessment altogether. (See Questions 8–12 below.)
  • The employer adopts an algorithmic decision-making tool for use with its job applicants or employees that violates the ADA’s restrictions on disability-related inquiries and medical examinations. (See Question 13 below.)

An employer’s use of an algorithmic decision-making tool may be unlawful for one of the above reasons, or for several such reasons.

My Thoughts: for those in the disability rights field and aware of how AI is used in the hiring process, the first thing that immediately comes to mind is screen out. This particular section of the document lets you know that there may be other issues as well, such as the disability related inquiries and medical examinations scheme, which we discussed here among other places.

  1. Is an employer responsible under the ADA for its use of algorithmic decision-making tools even if the tools are designed or administered by another entity, such as a software vendor?

In many cases, yes. For example, if an employer administers a pre-employment test, it may be responsible for ADA discrimination if the test discriminates against individuals with disabilities, even if the test was developed by an outside vendor. In addition, employers may be held responsible for the actions of their agents, which may include entities such as software vendors, if the employer has given them authority to act on the employer’s behalf.

My Thoughts:

  1. As we discussed here, the ADA is a nondelegable duty. Accordingly, indemnification agreements may be problematic. However, an employer may strongly wish to consider a reimbursement agreement with the AI vendor.
  2. Don’t forget about 29 C.F.R. §1630.6, which provides: “It is unlawful for a covered entity to participate in a contractual or other arrangement or relationship that has the effect of subjecting the covered entity‘s own qualified applicant or employee with a disability to the discrimination prohibited by this part.”

Algorithmic Decision-Making Tools and Reasonable Accommodation

  1. What is a reasonable accommodation?

A reasonable accommodation is a change in the way things are done that helps a job applicant or employee with a disability apply for a job, do a job, or enjoy equal benefits and privileges of employment. Examples of reasonable accommodations may include specialized equipment, alternative tests or testing formats, permission to work in a quiet setting, and exceptions to workplace policies. These are just examples—almost any change can be a reasonable accommodation—although an employer never has to lower production or performance standards or eliminate an essential job function as a reasonable accommodation.

My Thoughts:

  1. I like to think of reasonable accommodations as anything that gets the person with a disability to the same starting line as a person without a disability. Once you have that, it is then up to the person with the disability demonstrate what they can do.
  2. It is a good idea to keep the essential functions of the job in your job descriptions current.

 

5. May an employer announce generally (or use software that announces generally) that reasonable accommodations are available to job applicants and employees who are asked to use or be evaluated by an algorithmic decision-making tool, and invite them to request reasonable accommodations when needed?

Yes. An employer may tell applicants or employees what steps an evaluation process includes and may ask them whether they will need reasonable accommodations to complete it. For example, if a hiring process includes a video interview, the employer or software vendor may tell applicants that the job application process will involve a video interview and provide a way to request a reasonable accommodation. Doing so is a “promising practice” to avoid violating the ADA.

My Thoughts: I am not sure that this is a common practice as of this moment. The problem that is likely to be run into is a debate over whether the reasonable accommodation requested would fundamentally alter the nature of the AI. However, that isn’t the end of the story because the very nature of the AI may be screening out people with disabilities. So, there is a tension between the utility of the AI altogether and the screen out prohibitions of the ADA.

  1. When an employer uses algorithmic decision-making tools to assess job applicants or employees, does the ADA require the employer to provide reasonable accommodations?

If an applicant or employee tells the employer that a medical condition may make it difficult to take a test, or that it may cause an assessment result that is less acceptable to the employer, the applicant or employee has requested a reasonable accommodation. To request an accommodation, it is not necessary to mention the ADA or use the phrase “reasonable accommodation.”

My thoughts:

  1. “Medical condition,” is an interesting turn of phrase as the ADA uses the term, “physical or mental impairment.” I suppose a physical or mental impairment is a “medical condition,” but that isn’t the statutory language.
  2. Magic words, as we have discussed numerous times, such as here, are not required for seeking a reasonable accommodation.

Under the ADA, employers need to respond promptly to requests for reasonable accommodation.

 

If it is not obvious or already known whether the requesting applicant or employee has an ADA disability and needs a reasonable accommodation because of it, the employer may request supporting medical documentation.

 

My Thoughts:

  1. You don’t have an automatic right to request medical documentation. That right exist if it is not obvious or already known whether the requesting applicant or employee has an ADA disability. That said, “obvious,” and “already known,” can be very elastic terms.
  2. Keep any request for medical documentation reasonable and narrowly focused to the situation at hand.
  3. I never like people referring to “undue hardship,” as involving significant difficulty or expense because there is a lot more to it than just that statement. For example, the concept of undue hardship includes both logistical undue hardship as well as financial undue hardship. Logistical undue hardship is akin to the title II and title III concept of fundamental alteration, which basically requires your business being turned upside down. Financial undue hardship means looking to the entire resources of the entity.

 

When the documentation shows that a disability might make a test more difficult to take or that it might reduce the accuracy of an assessment, the employer must provide an alternative testing format or a more accurate assessment of the applicant’s or employee’s skills as a reasonable accommodation, unless doing so would involve significant difficulty or expense (also called “undue hardship”).

For example, a job applicant who has limited manual dexterity because of a disability may report that they would have difficulty taking a knowledge test that requires the use of a keyboard, trackpad, or other manual input device. Especially if the responses are timed, this kind of test will not accurately measure this particular applicant’s knowledge. In this situation, the employer would need to provide an accessible version of the test (for example, one in which the applicant is able to provide responses orally, rather than manually) as a reasonable accommodation, unless doing so would cause undue hardship. If it is not possible to make the test accessible, the ADA requires the employer to consider providing an alternative test of the applicant’s knowledge as a reasonable accommodation, barring undue hardship.

Other examples of reasonable accommodations that may be effective for some individuals with disabilities include extended time or an alternative version of the test, including one that is compatible with accessible technology (like a screen-reader) if the applicant or employee uses such technology. Employers must give individuals receiving reasonable accommodation equal consideration with other applicants or employees not receiving reasonable accommodations.

The ADA requires employers to keep all medical information obtained in connection with a request for reasonable accommodation confidential and must store all such information separately from the applicant’s or employee’s personnel file.

My Thoughts: the confidentiality requirements of all medical information is an easy one to forget about. Don’t do that.

  1. Is an employer responsible for providing reasonable accommodations related to the use of algorithmic decision-making tools, even if the software or application is developed or administered by another entity?

In many cases, yes. As explained in Question 3 above, an employer may be held responsible for the actions of other entities, such as software vendors, that the employer has authorized to act on its behalf. For example, if an employer were to contract with a software vendor to administer and score on its behalf a pre-employment test, the employer likely would be held responsible for actions that the vendor performed—or did not perform—on its behalf. Thus, if an applicant were to tell the vendor that a medical condition was making it difficult to take the test (which qualifies as a request for reasonable accommodation), and the vendor did not provide an accommodation that was required under the ADA, the employer likely would be responsible even if it was unaware that the applicant reported a problem to the vendor.

My Thoughts: this is a very respondeat superior type approach. Don’t forget about 29 C.F.R. §1630.6, which makes it clear that an employer cannot discriminate against employees or prospective applicants by way of contracting.

Algorithmic Decision-Making Tools That Screen Out Qualified Individuals with Disabilities

  1. When is an individual “screened out” because of a disability, and when is screen out potentially unlawful?

Screen out occurs when a disability prevents a job applicant or employee from meeting—or lowers their performance on—a selection criterion, and the applicant or employee loses a job opportunity as a result. The ADA says that screen out is unlawful if the individual who is screened out is able to perform the essential functions of the job with a reasonable accommodation if one is legally required.[1]  Questions 9 and 10 explain the meaning of “screen out” and Question 11 provides examples of when a person who is screened out due to a disability nevertheless can do the job with a reasonable accommodation.

My Thoughts: this is an easy to understand meaning of the term, “screen out.”

  1. Could algorithmic decision-making tools screen out an individual because of a disability? What are some examples?

Yes, an algorithmic decision-making tool could screen out an individual because of a disability if the disability causes that individual to receive a lower score or an assessment result that is less acceptable to the employer, and the individual loses a job opportunity as a result.

My Thoughts: proving up that a person with a disability got a lower score on an AI assessment is probably not all that difficult. However, the EEOC makes it clear that you also have to show that the individual lost a job opportunity as a result of that, which would be much harder to show.

An example of screen out might involve a chatbot, which is software designed to engage in communications online and through texts and emails. A chatbot might be programmed with a simple algorithm that rejects all applicants who, during the course of their “conversation” with the chatbot, indicate that they have significant gaps in their employment history. If a particular applicant had a gap in employment, and if the gap had been caused by a disability (for example, if the individual needed to stop working to undergo treatment), then the chatbot may function to screen out that person because of the disability.

My Thoughts: many labor and employment management side attorneys are saying now in their blogs and on social media that using gaps in employment as a negative factor for an applicant is just a really bad idea, especially with what has happened during the Covid-19 pandemic.

Another kind of screen out may occur if a person’s disability prevents the algorithmic decision-making tool from measuring what it is intended to measure. For example, video interviewing software that analyzes applicants’ speech patterns in order to reach conclusions about their ability to solve problems is not likely to score an applicant fairly if the applicant has a speech impediment that causes significant differences in speech patterns. If such an applicant is rejected because the applicant’s speech impediment resulted in a low or unacceptable rating, the applicant may effectively have been screened out because of the speech impediment.

My Thoughts: AI that uses speech patterns to reach conclusions about prospective candidates abilities is terribly problematic for persons with disabilities. For example, I have a slight deaf accent. That accent is imperceptible to most hearing people unless they have worked with deaf individuals or have a background in speech therapy. Nevertheless, voice dictation technology, which I have used for years due to joint issues, is a lot harder for me to use because of that accent. Voice dictation simply takes a lot longer to get used to my accent than it does for hearing people. Also, keep in mind that many disabilities have speech impediment that are associated with it. Finally, a culturally deaf individual quite often doesn’t use their voice at all. In short, if an AI tool is using speech patterns to influence the results, they would do well to eliminate that altogether because too many people with disabilities have speech patterns that are not typical.

  1. Some algorithmic decision-making tools may say that they are “bias-free.” If a particular tool makes this claim, does that mean that the tool will not screen out individuals with disabilities?

When employers (or entities acting on their behalf such as software vendors) say that they have designed an algorithmic decision-making tool to be “bias-free,” it typically means that they have taken steps to prevent a type of discrimination known as “adverse impact” or “disparate impact” discrimination under Title VII, based on race, sex, national origin, color, or religion. This type of Title VII discrimination involves an employment policy or practice that has a disproportionately negative effect on a group of individuals who share one of these characteristics, like a particular race or sex.[2]

To reduce the chances that the use of an algorithmic decision-making tool results in disparate impact discrimination on bases like race and sex, employers and vendors sometimes use the tool to assess subjects in different demographic groups, and then compare the average results for each group. If the average results for one demographic group are less favorable than those of another (for example, if the average results for individuals of a particular race are less favorable than the average results for individuals of a different race), the tool may be modified to reduce or eliminate the difference.

The steps taken to avoid that kind of Title VII discrimination are typically distinct from the steps needed to address the problem of disability bias.[3] If an employer or vendor were to try to reduce disability bias in the way described above, doing so would not mean that the algorithmic decision-making tool could never screen out an individual with a disability. Each disability is unique. An individual may fare poorly on an assessment because of a disability, and be screened out as a result, regardless of how well other individuals with disabilities fare on the assessment. Therefore, to avoid screen out, employers may need to take different steps beyond the steps taken to address other forms of discrimination.  (See Question 12.)

My Thoughts: the very last ¶ of question 10, should be a very big cautionary note for the use of AI in hiring.

  1. Screen out because of a disability is unlawful if the individual who is screened out is able to perform the essential functions of the job, with a reasonable accommodation if one is legally required. If an individual is screened out by an algorithmic decision-making tool, is it still possible that the individual is able to perform the essential functions of the job?

In some cases, yes. For example, some employers rely on “gamified” tests, which use video games to measure abilities, personality traits, and other qualities, to assess applicants and employees. If a business requires a 90 percent score on a gamified assessment of memory, an applicant who is blind and therefore cannot play these particular games would not be able to score 90 percent on the assessment and would be rejected. But the applicant still might have a very good memory and be perfectly able to perform the essential functions of a job that requires a good memory.

Even an algorithmic decision-making tool that has been “validated” for some purposes might screen out an individual who is able to perform well on the job. To say that a decision-making tool has been “validated”[4] means that there is evidence meeting certain professional standards showing that the tool accurately measures or predicts a trait or characteristic that is important for a specific job. Algorithmic decision-making tools may be validated in this sense, and still be inaccurate when applied to particular individuals with disabilities. For example, the gamified assessment of memory may be validated because it has been shown to be an accurate measure of memory for most people in the general population, yet still screen out particular individuals who have good memories but are blind, and who therefore cannot see the computer screen to play the games.

An algorithmic decision-making tool also may sometimes screen out individuals with disabilities who could do the job because the tool does not take into account the possibility that such individuals are entitled to reasonable accommodations on the job. Algorithmic decision-making tools are often designed to predict whether applicants can do a job under typical working conditions. But people with disabilities do not always work under typical conditions if they are entitled to on-the-job reasonable accommodations.

My Thoughts: the question is whether a person can perform the essential functions of the job with it without reasonable accommodations. If the AI tool is only measuring how a person can perform the essential functions of the job without reasonable accommodations, that tool has a problem.

For example, some pre-employment personality tests are designed to look for candidates who are similar to the employer’s most successful employees—employees who most likely work under conditions that are typical for that employer.

My Thoughts: for what can happen when an employer uses personality tests to evaluate whether a person can do the essential functions of the job or to evaluate whether a person should be promoted, see Karraker v. Rent-A-Car Center, Inc., 411 F.3d 831 (7th Cir. 2005).

 

Someone who has Posttraumatic Stress Disorder (“PTSD”) might be rated poorly by one of these tests if the test measures a trait that may be affected by that particular individual’s PTSD, such as the ability to ignore distractions. Even if the test is generally valid and accurately predicts that this individual would have difficulty handling distractions under typical working conditions, it might not accurately predict whether the individual still would experience those same difficulties under modified working conditions—specifically, conditions in which the employer provides required on-the-job reasonable accommodations such as a quiet workstation or permission to use noise-cancelling headphones. If such a person were to apply for the job and be screened out because of a low score on the distraction test, the screen out may be unlawful under the ADA. Some individuals who may test poorly in certain areas due to a medical condition may not even need a reasonable accommodation to perform a job successfully.

My Thoughts: is it the disability that is being accommodated or is it the essential functions of the job that are being accommodated? You get two different places depending upon which if the question. For a discussion of this issue, see this blog entry.

  1. What could an employer do to reduce the chances that algorithmic decision-making tools will screen out someone because of a disability, even though that individual is able to perform the essential functions of the job (with a reasonable accommodation if one is legally required)?

First, if an employer is deciding whether to rely on an algorithmic decision-making tool developed by a software vendor, it may want to ask the vendor whether the tool was developed with individuals with disabilities in mind. Some possible inquiries about the development of the tool that an employer might consider include, but are not limited to:

  • If the tool requires applicants or employees to engage a user interface, did the vendor make the interface accessible to as many individuals with disabilities as possible?

My Thoughts: it is not a legal defense to my mind to say that the interface is accessible with many individuals with disabilities but not to a particular employee or applicant with the disability. Remember, the ADA requires an individualized analysis in every case.

  • Are the materials presented to job applicants or employees in alternative formats? If so, which formats? Are there any kinds of disabilities for which the vendor will not be able to provide accessible formats, in which case the employer may have to provide them (absent undue hardship)?

My Thoughts: don’t forget about 29 C.F.R. §1630.6.

  • Did the vendor attempt to determine whether use of the algorithm disadvantages individuals with disabilities? For example, did the vendor determine whether any of the traits or characteristics that are measured by the tool are correlated with certain disabilities?

My Thoughts: this should be a mandatory item on any AI vendor checklist.

If an employer is developing its own algorithmic decision-making tool, it could reduce the chances of unintentional screen out by taking the same considerations into account during its development process. Depending on the type of tool in question, reliance on experts on various types of disabilities throughout the development process may be effective. For example, if an employer is developing pre-employment tests that measure personality, cognitive, or neurocognitive traits, it may be helpful to employ psychologists, including neurocognitive psychologists, throughout the development process in order to spot ways in which the test may screen out people with autism or cognitive, intellectual, or mental health-related disabilities.

My Thoughts:

  1. You want to make sure that such individuals are not practitioners of ableism. That is, do they believe as persons without disabilities that they know what is best for persons with disabilities. The focus should be on whether the person with the disability can do the essential functions of the job with or without reasonable accommodations.
  2. Beta testing utilizing persons with disabilities is always a good idea for any AI tool.

 

Second, regardless of whether the employer or another entity is developing an algorithmic decision-making tool, the employer may be able to take additional steps during implementation and deployment to reduce the chances that the tool will screen out someone because of a disability, either intentionally or unintentionally. Such steps include:

  • clearly indicating that reasonable accommodations, including alternative formats and alternative tests, are available to people with disabilities;
  • providing clear instructions for requesting reasonable accommodations; and
  • in advance of the assessment, providing all job applicants and employees who are undergoing assessment by the algorithmic decision-making tool with as much information about the tool as possible, including information about which traits or characteristics the tool is designed to measure, the methods by which those traits or characteristics are to be measured, and the disabilities, if any, that might potentially lower the assessment results or cause screen out.

My Thoughts: the final bullet in this section is very interesting because of the proprietary information involved. One wonders what kind of resistance the AI company will put up with respect to this bullet. It seems to me there would be an argument that proprietary information is involved. Even so, I am not sure that approach will work in the face of a lawsuit alleging screen out as this information would certainly be related to whether screen out is occurring.

Taking these steps will provide individuals with disabilities an opportunity to decide whether a reasonable accommodation may be necessary. For example, suppose that an employer uses an algorithm to evaluate its employees’ productivity, and the algorithm takes into account the employee’s average number of keystrokes per minute. If the employer does not inform its employees that it is using this algorithm, an employee who is blind or has a visual impairment and who uses voice recognition software instead of a keyboard may be rated poorly and lose out on a promotion or other job opportunity as a result. If the employer informs its employees that they will be assessed partly on the basis of keyboard usage, however, that same employee would know to request an alternative means of measuring productivity—perhaps one that takes into account the use of voice recognition software rather than keystrokes—as a reasonable accommodation.

My Thoughts: I am delighted to see that voice recognition software is specifically mentioned in this document because voice recognition software often gets lost in favor of screen readers. They both work on coding technology, but the results aren’t always the same. So, you need to evaluate for screen reading capabilities and separately for voice dictation capabilities.

Another way for employers to avoid ADA discrimination when using algorithmic decision-making tools is to try to ensure that no one is screened out unless they are unable to do the job, even when provided with reasonable accommodations. A promising practice is to only develop and select tools that measure abilities or qualifications that are truly necessary for the job—even for people who are entitled to an on-the-job reasonable accommodation. For example, an employer who is hiring cashiers might want to ensure that the chatbot software it is using does not reject applicants who are unable to stand for long periods. Otherwise, a chatbot might reject an applicant who uses a wheelchair and may be entitled to a lowered cash register as a reasonable accommodation.

My Thoughts:

  1. This is excellent advice. That is, AI should not screen out anyone unless they are unable to do the job with or without reasonable accommodations.
  2. Same question as earlier. That is, is it the disability being accommodated or the essential functions of the job?

As a further measure, employers may wish to avoid using algorithmic decision-making tools that do not directly measure necessary abilities and qualifications for performing a job, but instead make inferences about those abilities and qualifications based on characteristics that are correlated with them. For example, if an open position requires the ability to write reports, the employer may wish to avoid algorithmic decision-making tools that rate this ability by measuring the similarity between an applicant’s personality and the typical personality for currently successful report writers. By doing so, the employer lessens the likelihood of rejecting someone who is good at writing reports, but whose personality, because of a disability, is uncommon among successful report writers.

My Thoughts: as a preventive law matter, I would definitely avoid using logarithmic decision-making tools that do not directly measure necessary abilities and qualifications for performing a job, but instead make inferences about those abilities and qualification based on characteristics correlated with them. It is just a bad idea. It also leads ableism interfering with employment decisions.

Algorithmic Decision-Making Tools and Disability-Related Inquiries and Medical Examinations

  1. How could an employer’s use of algorithmic decision-making tools violate ADA restrictions on disability-related inquiries and medical examinations?

An employer might violate the ADA if it uses an algorithmic decision-making tool that poses “disability-related inquiries” or seeks information that qualifies as a “medical examination” before giving the candidate a conditional offer of employment.[5] This type of violation may occur even if the individual does not have a disability.

My Thoughts:

  1. For a discussion of the medical exam/disability related inquiries scheme, see this blog entry.
  2. You do not have to be a person with a disability to benefit from violations of the disability related and medical examination scheme.

An assessment includes “disability-related inquiries” if it asks job applicants or employees questions that are likely to elicit information about a disability or directly asks whether an applicant or employee is an individual with disability.

My Thoughts: no argument from me.

 

It qualifies as a “medical examination” if it seeks information about an individual’s physical or mental impairments or health.

My thoughts: this is an oversimplification. See this blog entry for example.

An algorithmic decision-making tool that could be used to identify an applicant’s medical conditions would violate these restrictions if it were administered prior to a conditional offer of employment. Not all algorithmic decision-making tools that ask for health-related information are “disability-related inquiries or medical examinations,” however. For example, a personality test is not posing “disability-related inquiries” because it asks whether the individual is “described by friends as being ‘generally optimistic,’” even if being described by friends as generally optimistic might somehow be related to some kinds of mental health diagnoses.

My Thoughts: but see Karraker.

Note, however, that even if a request for health-related information does not violate the ADA’s restrictions on disability-related inquiries and medical examinations, it still might violate other parts of the ADA. For example, if a personality test asks questions about optimism, and if someone with Major Depressive Disorder (“MDD”) answers those questions negatively and loses an employment opportunity as a result, the test may “screen out” the applicant because of MDD. As explained in Questions 8–11 above, such screen out may be unlawful if the individual who is screened out can perform the essential functions of the job, with or without reasonable accommodation.

My Thoughts: see Karraker.

Once employment has begun, disability-related inquiries may be made and medical examinations may be required only if they are legally justified under the ADA.

For more information on disability-related inquiries and medical examinations, see Pre-Employment Inquiries and Medical Questions & Examinations, and Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees under the ADA.

Promising Practices for Employers

  1. What can employers do to comply with the ADA when using algorithmic decision-making tools?
  • As discussed in Questions 4–7 above, employers must provide reasonable accommodations when legally required. Promising practices that may help employers to meet this requirement include:
    • Training staff to recognize and process requests for reasonable accommodation as quickly as possible, including requests to retake a test in an alternative format, or to be assessed in an alternative way, after the individual has already received poor results.
    • Training staff to develop or obtain alternative means of rating job applicants and employees when the current evaluation process is inaccessible or otherwise unfairly disadvantages someone who has requested a reasonable accommodation because of a disability.

My thoughts: regular training by competent and knowledgeable individuals is always a good idea.

    • If the algorithmic decision-making tool is administered by an entity with authority to act on the employer’s behalf, such as a testing company, asking the entity to forward all requests for accommodation promptly to be processed by the employer in accordance with ADA requirements. Alternatively, the employer could seek to enter into an agreement with the third party requiring it to provide reasonable accommodations on the employer’s behalf, in accordance with the employer’s obligations under the ADA.

My Thoughts: don’t forget about 29 C.F.R. §1630.6.

 

  • Employers should minimize the chances that algorithmic decision-making tools will disadvantage individuals with disabilities, either intentionally or unintentionally. Promising practices include:
    • Using algorithmic decision-making tools that have been designed to be accessible to individuals with as many different kinds of disabilities as possible, thereby minimizing the chances that individuals with different kinds of disabilities will be unfairly disadvantaged in the assessments. User testing is a promising practice.

My Thoughts: don’t forget that the ADA is an individualized analysis with no exceptions

    • Informing all job applicants and employees who are being rated that reasonable accommodations are available for individuals with disabilities, and providing clear and accessible instructions for requesting such accommodations.

My thoughts: always a good idea.

    • Describing, in plain language and in accessible formats, the traits that the algorithm is designed to assess, the method by which those traits are assessed, and the variables or factors that may affect the rating.

My Thoughts: I am a big believer in plain language. The rest of this particular paragraph sets up the tension between proprietary information and proving up a screen out claim.

  • Employers may also seek to minimize the chances that algorithmic decision-making tools will assign poor ratings to individuals who are able to perform the essential functions of the job, with a reasonable accommodation if one is legally required. Promising practices include:
    • Ensuring that the algorithmic decision-making tools only measure abilities or qualifications that are truly necessary for the job—even for people who are entitled to an on-the-job reasonable accommodation.
    • Ensuring that necessary abilities or qualifications are measured directly, rather than by way of characteristics or scores that are correlated with those abilities or qualifications.

My Thoughts: both of the bullets immediately above are excellent preventive law approaches.

  • Before purchasing an algorithmic decision-making tool, an employer should ask the vendor to confirm that the tool does not ask job applicants or employees questions that are likely to elicit information about a disability or seek information about an individual’s physical or mental impairments or health, unless such inquiries are related to a request for reasonable accommodation. (The ADA permits an employer to request reasonable medical documentation in support of a request for reasonable accommodation that is received prior to a conditional offer of employment, when necessary, if the requested accommodation is needed to help the individual complete the job application process.)

My thoughts: this assumes that the disability is not obvious or known, which as mentioned before are elastic terms.

Promising Practices for Job Applicants and Employees Who Are Being Assessed by Algorithmic Decision-Making Tools

  1. What should I do to ensure that I am being assessed fairly by algorithmic decision-making tools?

If you have a medical condition that you think might qualify as an ADA disability and that could negatively affect the results of an evaluation performed by algorithmic decision-making tools, you may want to begin by asking for details about the employer’s use of such tools to determine if it might pose any problems related to your disability.

 

My Thoughts: it will be interesting to see how receptive the AI vendor is to this approach because of the worry about disclosing proprietary information. Vendors and employers want to be careful about retaliating against any individual that seeks this information, especially since the EEOC is suggesting that the information should be sought out in the first place.

 

If so, you may want to ask for a reasonable accommodation that allows you to compete on equal footing with other applicants or employees.

For example, if an employer’s hiring process includes a test, you may wish to ask for an accessible format or an alternative test that measures your ability to do the job in a way that is not affected by your disability. To request a reasonable accommodation, you need to notify an employer representative or official (for example, someone in Human Resources) or, if the employer is contracting with a software vendor, the vendor’s representative or the employer, that you have a medical condition, and that you need something changed because of the medical condition to ensure that your abilities are evaluated accurately.

Note that if your disability and need for accommodation are not obvious or already known, you may be asked to submit some medical documentation in support of your request for accommodation.

 

My Thoughts: keep any request for medical documentation reasonable and narrowly focused.

 

To find out more about asking for reasonable accommodations, see Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the ADA, available at https://www.eeoc.gov/laws/guidance/enforcement-guidance-reasonable-accommodation-and-undue-hardship-under-ada.

If you only discover that an algorithmic decision-making tool poses a problem due to your disability after the evaluation process is underway, you should notify the employer or software vendor as soon as you are aware of the problem and ask to be evaluated in a way that accurately reflects your ability to do the job, with a reasonable accommodation if one is legally required.

If you have already received a poor rating generated by an employer’s use of an algorithmic decision-making tool, you should think about whether your health condition might have prevented you from achieving a higher rating. For example, might a disability have negatively affected the results of an assessment, or made it impossible for you to complete an assessment? If so, you could contact the employer or software vendor immediately, explain the disability-related problem, and ask to be reassessed using a different format or test, or to explain how you could perform at a high level despite your performance on the test.

  1. What do I do if I think my rights have been violated?

If you believe that your employment-related ADA rights may have been violated, the EEOC can help you decide what to do next. For example, if the employer or software vendor refuses to consider your request for a reasonable accommodation to take or re-take a test, and if you think that you would be able to do the job with a reasonable accommodation, you might consider filing a charge of discrimination with the EEOC. A discrimination charge is an applicant’s or employee’s statement alleging that an employer engaged in employment discrimination and asking the EEOC to help find a remedy under the EEO laws.

If you file a charge of discrimination, the EEOC will conduct an investigation. Mediation, which is an informal and confidential way for people to resolve disputes with the help of a neutral mediator, may also be available. Because you must file an EEOC charge within 180 days of the alleged violation in order to take further legal action (or 300 days if the employer is also covered by a state or local employment discrimination law), it is best to begin the process early. It is unlawful for an employer to retaliate against you for contacting the EEOC or filing a charge.

If you would like to begin the process of filing a charge, go to our Online Public Portal at https://publicportal.eeoc.gov, visit your local EEOC office (see https://www.eeoc.gov/field-office for contact information), or contact us by phone at 1-800-669-4000 (voice), 1-800-669-6820 (TTY), or 1-844-234-5122 (ASL Video Phone).

For general information, visit the EEOC’s website (https://www.eeoc.gov).

This information is not new policy; rather, this document applies principles already established in the ADA’s statutory and regulatory provisions as well as previously issued guidance. The contents of this publication do not have the force and effect of law and are not meant to bind the public in any way. This publication is intended only to provide clarity to the public regarding existing requirements under the law. As with any charge of discrimination filed with the EEOC, the Commission will evaluate alleged ADA violations involving the use of software, algorithms, and artificial intelligence based on all of the facts and circumstances of the particular matter and applicable legal principles.

[1] To establish a screen out claim, the individual alleging discrimination must show that the challenged selection criterion screens out or tends to screen out an individual with a disability or a class of individuals with disabilities. See 42 U.S.C. § 12112(b)(6); 29 C.F.R. § 1630.10(a). To establish a defense, the employer must demonstrate that the challenged application of the criterion is “job related and consistent with business necessity,” as that term is understood under the ADA, and that “such performance cannot be accomplished by reasonable accommodation.” 42 U.S.C. §§ 12112(b)(6), 12113(a); 29 C.F.R. §§ 1630.10(a), 1630.15(b); 29 C.F.R. pt. 1630 app. §§ 1630.10, 1630.15 (b) and (c). A different defense to a claim that a selection criterion screens out or tends to screen out an individual with a disability or a class of individuals with disabilities is available when the challenged selection criterion is safety-based. See 2 U.S.C. § 12113(b); 29 C.F.R. § 1630.15(b)(2).

My Thoughts:

  1. These concepts blur into each other making it really complicated to figure out the burden of proof. What the EEOC is saying is that the person with the disability has two allege that the criterion screens out or tend to screen out individuals with disabilities or class of individuals with disabilities. Then, the employer has to demonstrate that the challenged application of the criterion is job-related and consistent with business necessity as the terms are understood by the ADA and that such performance cannot be accomplished by reasonable accommodations. For what is job-related and business necessity, see this blog entry for example.
  2. “Safety-based,” can be so vague as to run a semi-truck through it. That is certainly what the PHP industry is trying to do to circumvent the requirements of the ADA. If safety-based is the claim, plaintiff’s attorneys need to thoroughly analyze such claims so as to keep them in check.

[2] 42 U.S.C. § 2000e-2(a)(2), (k).

[3] When applying the tool to current employees or other subjects, there will generally be no way to know who has a disability and who does not.

[4] When employers or vendors claims that a tool designed to help employers decide which job applicants to hire has been “validated,” or that such a tool is a “valid predictor” of job performance, they may mean that there is evidence that the tool measures a trait or characteristic that is important for the job, and that the evidence meets the standards articulated in the Uniform Guidelines on Employee Selection Procedures (“UGESP”), 29 C.F.R. §§ 1607.5–9. UGESP articulates standards for compliance with certain requirements under Title VII. UGESP does not apply to disability discrimination. 29 C.F.R. pt. 1630 app. § 1630.10 (a) (“The Uniform Guidelines on Employee Selection Procedures . . .  do not apply to the Rehabilitation Act and are similarly inapplicable to this part.”).

[5] Note, however, that the ADA permits employers to request reasonable medical documentation in support of a request for reasonable accommodation, when necessary. This may be done prior to a conditional offer of employment if the request is for a reasonable accommodation that is needed to help the individual complete the job application process.

My daughter completed her classroom component for high school this week and now is just waiting to graduate, so my schedule has been a bit all over the place. Hence, I am getting this blog entry up later in the week than I usually do.

 

This week’s blog entry is already making the rounds among some labor and employment law bloggers. So, I figured I could offer my own perspective on it. The case, Shields v. Credit One Bank, N. A. , a published decision from the Ninth Circuit decided on May 6, 2022, discusses just when is a temporary disability an actual disability under the ADA as amended. Reading this case and reading the law review article by Prof. Cheryl L. Anderson discussing transitory and minor in the regarded as exception, the article, here, has caused me to reconsider my approach that it was great preventive law to figure out whether a disability was transitory and minor with respect to a temporary disability fitting into the actual disability prong. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning that an impairment need not be permanent or have long-term effects before it can be considered a disability under the ADA as amended; court’s reasoning that Shields adequately alleged she had a disability under the ADA as amended; and thought/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts (taken from opinion with minor edits)

 

In November 2017, Shields began working in the Human Resources (“HR”) Department of Defendant Credit One Bank, N.A. (“Credit One”) in Las Vegas, Nevada. Her formal job title was “HR Generalist I,” and the official job description for that position listed a variety of basic “physical requirements” that “must be met by an employee to successfully perform the essential functions of this job.” These requirements included the ability to “use hands to finger, handle, [and] feel,” to “reach with hands and arms,” and, occasionally, to “lift and/or move up to 2 pounds.” The job description also stated, however, that “[r]easonable accommodations may be made to enable individuals with disabilities to perform the essential functions” of the job.

 

After a concern arose in January 2018 that Shields might have bone cancer, she was scheduled for a bone biopsy surgery, which took place on April 20, 2018. The biopsy surgery was a significant procedure that required a three-day hospitalization. In order to obtain the necessary tissue samples from Shields’s right shoulder and arm, the surgeon made what the complaint described as a “10 centimeter skin incision” and created a window “into the bone measuring one centimeter in width by two centimeters in length.” Subsequent testing of the samples revealed that “everything was benign” and that Shields did not have cancer after all.

 

Nonetheless, given the substantial physical impact of the biopsy surgery itself, Shields was unable to return to work for several months. Specifically, her postsurgical injuries prevented her from, inter alia, fully using her right arm, shoulder, and hand to lift, pull, push, type, write, tie her shoes, or use a hair dryer. In order to verify Shields’s SHIELDS V. CREDIT ONE BANK 5 inability to work, her surgeon, Dr. Hillock, completed a copy of Credit One’s standard “ADA Employee Accommodation Medical Certification Form.” In completing the form, Dr. Hillock stated that Shields would be unable to perform her essential job functions, with or without accommodation, for two months. In the portion of the form that asked him to identify the “major life activities” that “are substantially limited by the medical condition or accompanying treatment,” Dr. Hillock listed “sleeping, lifting, writing, pushing, pulling [and] manual tasks.” After submission of the form, Shields was approved for an unpaid, eight-week “medical leave of absence as an accommodation under the ADA.” The leave was unpaid rather than paid because Shields did not qualify for paid leave under the Family and Medical Leave Act.

 

Dr. Hillock initially estimated that Shields would be able to return to work on June 20, 2018. However, as that date approached, Shields still lacked full use of her right shoulder, arm, and hand. Accordingly, on June 18, 2018, Dr. Hillock prepared a note indicating that Shields was still unable to return to work. The relevant portion of the note stated, in its entirety: “Patient has an appointment on 7/10 at which point a return to work date will be discussed. Unable to work until appointment.”

 

Shortly after receiving Dr. Hillock’s note, the assistant vice president of Credit One’s HR Department called Shields and asked her to come into the office the next day. Shields asked “if she was being fired,” and the assistant vice president said that she was not and that they needed her to come in to discuss “her healthcare premium.” When Shields reported to the office, however, she was told that her position was being eliminated and that she was therefore being 6 SHIELDS V. CREDIT ONE BANK terminated. Her healthcare coverage was consequently terminated about a week later.

 

Shields filed a complaint with the Equal Employment Opportunity Commission (“EEOC”), and she received a “Notice of Right to Sue” on March 5, 2019. Specifically, the complaint alleges that, as a reasonable accommodation for her temporary disability arising from the biopsy surgery, Credit One “had a continuing duty under the ADA to extend Shields’[s] medical leave of absence” for the “short” additional period of time “until she was able to return to her job.” Instead, Shields alleged, Credit One unlawfully terminated her. Shields sought, inter alia, back pay, compensatory damages, punitive damages, and attorney’s fees.

 

The district court granted Credit One’s motion to dismiss the complaint under Rule 12(b)(6). The court concluded that, for two reasons, Shields had failed adequately to plead a disability within the meaning of the ADA. First, citing the 2010 version of the EEOC regulations defining disability, the court held that Shields had failed to plead facts showing “any permanent or long-term effects for her impairment” SHIELDS V. CREDIT ONE BANK 7 (emphasis added). Second, the court concluded that Shields failed to allege sufficient factual detail to “state a plausible impairment” during the requested extension of her medical leave of absence. The court entered judgment, and Shields filed a timely notice of appeal.

 

II

Court’s Reasoning That an Impairment Need Not Be Permanent or Have Long-Term Effects before It Can Be Considered a Disability under the ADA As Amended

 

  1. §106 of the ADA has long granted the EEOC authority to issue regulations carrying out title I of the ADA.
  2. In 2008, Congress enacted the ADAAA for the express purpose of rejecting the narrow understanding of substantially limits that had been adopted in several Supreme Court decisions. In particular, the ADAAA declares that one of its purposes is the rejection of Supreme Court holdings that the phrase substantially limits in the ADA’s definition of disability need to be interpreted strictly to create a demanding standard for qualifying as a person with a disability. The ADAAA also rejected the principle that to be substantially limiting an individual must have an impairment that prevents or severely restricts the individual from doing activities of central importance to most people’s daily lives.
  3. The ADAAA findings also expressly state that the current EEOC ADA regulations defining the term substantially limits as significantly restricted are inconsistent with congressional intent by using too high of a standard. The reference 2008 version of the EEOC regulations that the ADAAA expressly rejects as too restrictive are identical to the 2010 version of the regulations applied by the district court in this case.
  4. The ADAAA amended §3 of the ADA by adding several rules of construction together with language directing that the definition of disability shall be construed in accordance with those rules of construction.
  5. Those rules of construction include the principles that: 1) the definition of disability in the ADA must be construed in favor of broad coverage of individuals under the ADA to the maximum extent permitted by the terms of the ADA; 2) the term substantially limits must be interpreted consistently with the findings and purposes of the ADA as amended; and 3) an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.
  6. The ADAAA also directs the EEOC to revise the portion of its current regulation that defined the term substantially limits as significantly restricted to be consistent with the ADAAA, including the amendments made by the ADAAA.
  7. The ADAAA added a new provision giving the EEOC the right to issue regulations with respect to definitional terms in the ADA. The court notes in a footnote that prior to the addition of that language, the EEOC’s expressed regulatory authority extended only to issuing regulations to carry out title I of the ADA. However, the definitional terms are not in title I but in preliminary provisions proceeding it. So, the added language prevents any argument over the EEOC’s authority to issue regulations construing the ADA’s definitional terms.
  8. In 2011, the EEOC issued regulations, 29 C.F.R. §1630.2(j)(1)(ix), noting that the effects of an impairment lasting are expected to last fewer than six months can be substantially limiting.
  9. With respect to the regarded as prong, the ADAAA specifically states that the regarded as prong does not apply to impairment that are transitory and minor. A transitory impairment, per 42 U.S.C. §12102(3)(B), is an impairment with an actual or expected duration of six months or less.
  10. The fact that Congress added transitory and minor language only to the regarded as alternative and not to the actual disability and record of disability prongs strongly confirms that no such temporal limitation applies to the actual and record of disability prongs. After all, where Congress included particular language in one section of the statute but omits it in another section of the same statute, it is generally presumed that Congress acts intentionally and purposely in writing a statute that way.
  11. The EEOC’s regulation recognizes the statutory distinction by providing that the six months transitory and minor limitation applies only to the regarded as prong of the definition of disability and does not apply to the actual disability and record of disability prongs.
  12. The EEOC explanatory guidance accompanying §1630.2(j)(1)(ix), here, explains that although the duration of an impairment remains one factor relevant in determining whether the impairment substantially limits a major life activity, there is no categorical rule excluding short-term impairments, which may be covered if sufficiently severe.
  13. The ADA as amended and its implementing EEOC regulations make clear that the actual impairment prong of the definition of disability is not subject to any categorical temporal limitation and therefore, the district court erred in holding that such a temporal limitation existed.

 

III

Court’s Reasoning That Shields did Adequately Allege That She Had a Disability under the ADA as Amended

 

  1. In order to properly plead a disability, Shields had to allege, per 42 U.S.C. §12102(1)(A), that she had: 1) a physical or mental impairment; 2) that substantially limits; 3) one or more major life activities.
  2. Her complaint alleged that her bone biopsy surgery involved a 10 cm incision creating a window into the bone measuring 1 cm in width by 2 cm in length for purposes of harvesting tissue from her shoulder and arm. The substantial injuries inherent in such an intrusive surgery rendered her unable to fully use her right shoulder, arm and hand and unable to perform such tasks as lifting, pushing, and pulling things with her shoulder, arm and hand, typing on a computer keyboard or otherwise, handwriting, or even tying her shoes or lifting a hair dryer to dry her hair. Such allegations adequately allege that due to her biopsy surgery, Shields had a physical impairment, both in the ordinary sense of that term as well was in the sense described in the EEOC’s final implementing regulations.
  3. The allegation concerning Shields’s condition during the initial eight weeks are sufficiently well pleaded to give rise to a plausible inference that she had an impairment. Further, the complaint went even further when it alleged that her surgeon had concluded that her condition had not improved sufficiently by the end of those eight weeks to permit her to return to work.
  4. Iqbal simply did not require Shields to include more granular details about the exact nature of her then existing limitation that caused the surgeon to conclude that her injuries had not sufficiently healed.
  5. The activities that Shields pleaded that she was unable to perform qualify as major life activities under the ADA. In particular, the ADA expressly states that major life activities include but are not limited to: caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. 42 U.S.C. §12102(2)(A).
  6. The complaint specifically alleges that her post surgery injuries impeded her ability to lift, perform basic grooming tasks necessary to care for herself, and to perform manual task such as pushing or pulling. It also alleges that she was unable to perform some of the core physical tasks included in her job description, such as lifting, reaching, fingering, and handling, all of which indicates that her ability to work was implicated as well.
  7. As amended by the amendments to the ADA, the ADA expressly provides, 42 U.S.C. §12102(4)(E)(i), that the determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures, such as medication, medical supplies, or other aids.
  8. The ADA as amended further states, per 42 U.S.C. §12102(4)(C), that an impairment need only substantially limit one major life activity in order to give rise to a covered disability.
  9. The statute also provides that, as a general matter, the definition of disability is to be construed in favor of broad coverage of individuals under the ADA to the maximum extent permitted by the terms of the ADA.
  10. The definition of substantially limits in particular has to be interpreted consistently with the findings and purposes of the ADAAA, per 42 U.S.C. §12102(4)(B), which includes the principle that the question of whether an individual’s impairment as a disability under the ADA should not demand extensive analysis.
  11. The formal guidance accompanying the amended EEOC regulations specifically states that a temporary impairment impeding the performance of a major life activity and that last for several months is sufficiently severe to qualify as substantially limiting within the meaning of the ADA and the EEOC regulations.
  12. While the duration of an impairment remains one factor relevant to determining whether the impairment substantially limits a major life activity, Shields alleged impairment, which involved a substantial inability to perform certain major life tasks for more than two months, is clearly of sufficient duration and impact to qualify.

 

IV

Thoughts/Takeaways

 

  1. I have reconsidered the transitory and minor exception as a preventive law matter with respect to temporary disabilities for a couple of reasons. First, as Prof. Cheryl Anderson noted in her excellent law review article, which we mentioned previously here, courts are all over the place with respect to what is transitory and minor. Second, I find Shields persuasive that it is absolutely clear that transitory and minor does not apply to the actual and record of disability prongs. That said, the question does become what is “sufficiently severe,” to constitute a disability of temporary duration covered by the ADA as amended. Too that, I still believe it makes sense to go back to how the actual disability prong deals with substantial limitation. That is, if you have a disability that substantially limits a major life activity as set forth in the actual disability prong (substantially limited in a major life activity as compared to most people in the general population), then you most likely have a disability that is sufficiently severe to be covered under the actual disability prong. Think of it in terms of the extremely minor impairments, such as allergies or a cold as being excluded, with everything else on the table. Again, I refer you to Prof. Anderson’s excellent law review article. I would also be wary of getting into a numbers game as to how many days are sufficient (this court says two months is sufficient). Using a bit of common sense (if you have people with disabilities that can look at this situation for you as well, that could be really helpful), and correlating the situation to substantially limits as it works with respect to actual disabilities, should go a long way to anticipating most problems.
  2. The ADAAA gave the EEOC explicit authority to regulate definitional terms.
  3. While Iqbal does not require the inclusion of granular details about the exact nature of a plaintiff’s existing limitations causing a healthcare provider to conclude that injuries had not sufficiently healed, it is a good idea to include them in your complaint if you can.
  4. With the exception of eyeglasses, mitigating measures do not count when evaluating whether a person has a disability under the ADA as amended. That said, mitigating measures do factor into figuring out just what reasonable accommodations will work for a particular person with a disability.
  5. I am not aware of a split among the U.S. Circuit Court of Appeals with respect to the issues discussed in this case, and so one wonders about the likelihood of the Supreme Court taking this case. Certainly, the plaintiff will have no interest in taking this case to the Supreme Court.
  6. The EEOC may wish to consider amending its regulations and/or issuing further guidance to make clear just what it thinks “sufficiently severe,” means.
  7. Can you expect to see lots of litigation over what “sufficiently severe,” means? Maybe so.
  8. I am not a fan of using the word “shall,” when drafting contracts or statutes as the word is capable of seven different meanings. You can easily see the multiple meanings the word is capable of by just thinking about what happens when your child says they, “shall clean up their room.” Just when will that room be cleaned up? Never, soon, immediately, within a couple of hours, a week, etc.
  9. The decision is published.
  10. Interesting that the court mentioned that Shields also alleged sufficient facts to show that she was substantially limited in the major life activity of working. We have mentioned several times in our blog that plaintiffs attorney should stay away from alleging that major life activity whenever possible. Here, plaintiff’s attorney did allege a whole host of major life activities besides working, which they may or may not have even alleged in their complaint (I have not checked the complaint).
  11. A leave of absence when FMLA is either not in play or has been exhausted can most certainly be a reasonable accommodation.

Today’s blog entry deals with a case that got quite a bit of publicity from labor and employment attorneys on LinkedIn when it came out. I promised then that I would blog on it. So, here goes. The case of the day is Hopman v. Union Pacific Railroad out of the Western Division of the Eastern District of Arkansas and can be found here. The reason the case made such a splash when it came out is that the case talks about how being free from pain is not a privilege or benefit of employment. However, there is a lot more to this case than just that principle and it bears exploring further. As usual, the case can be divided into categories and they are: how did the case get to the judgment as a matter of law point; court’s reasoning that seeking to work without mental and psychological pain is not a privilege or benefit of employment; court’s reasoning that Union Pacific does not have to grant plaintiff’s accommodation request, use of a service animal, because it would enhance plaintiff’s job performance; and thoughts/takeaways. Of course, the reader is free to concentrate on any or all of the categories.

 

I

How Did the Case Get to the Judgment As a Matter of Law Point

 

How the case got to the point where the court decided to grant a judgment as a matter of law to Union Pacific is a bit odd and bears going over. The complaint was bare-bones but was based on a reasonable accommodation theory. The reasonable accommodation requested was the use of a service animal so as to allow the plaintiff (a person with post-traumatic stress disorder and traumatic brain injury), to deal with mental and psychological pain. For reasons unknown, at the summary judgment stage, which plaintiff successfully fought off, the plaintiff’s attorney switched the argument away from reasonable accommodation to the theory that a privilege and benefit of employment was involved. It then proceeded to trial and the plaintiff prevailed. Union Pacific filed a judgment as a matter of law.

 

II

Court’s Reasoning That Seeking to Work without Mental and Psychological Pain Is Not a Privilege or Benefit of Employment

 

  1. Plaintiff did not identify a corresponding benefit or privilege of employment offered to Union Pacific employees.
  2. No evidence was presented at trial that Union Pacific offers service animals to it non-disabled employees as a benefit and privilege of employment.
  3. Plaintiff had not demonstrated that Union Pacific provided service animal as a benefit or privilege of employment or any other similarly situated non-disabled employee.
  4. A remedy is available for a plaintiff who can establish the need for reasonable accommodation to enjoy equal benefits and privileges of employment that are enjoyed by similarly situated employees without disabilities.
  5. A benefit and privilege of employment case is a different kettle of fish than a reasonable accommodation case.
  6. Plaintiff admitted that he could both effectively do his job’s essential functions and access Union Pacific’s facilities without his service animal. In fact, plaintiff asserted throughout the case that he could perform the essential functions of his job.
  7. No authority exists where a court has said that a person with a disability has the right to work without mental or psychological pain. In fact, numerous cases suggest that employees do not have a right to work free from mental or psychological pain.
  8. Plaintiff did not establish that Union Pacific offered similarly situated non-disabled employees the benefit and privilege of working without mental or psychological pain.

III

Court’s Reasoning That Union Pacific Did Not Have To Grant Plaintiff’s Accommodation Request, Use of a Service Animal, Because It Would Enhance Plaintiff’s Job Performance.

 

  1. At trial, plaintiff asserted that his job performance would be enhanced when he was able to avoid the symptoms of PTSD and traumatic brain injury. The same argument was made at closing. Such an argument might be appropriate for an essential functions reasonable accommodation analysis. However, that argument does not work for a benefits and privileges of employment reasonable accommodation analysis.
  2. In the context of job performance, the EEOC Enforcement Guidance talks about a reasonable accommodation as one that enables the individual to perform the essential functions of the position.
  3. The EEOC Interpretive Guidance for title I of the ADA talks about equal employment opportunity meaning an opportunity to attain the same level of performance, or to enjoy the same level of benefits and privileges of employment as are available to the average similarly situated employee without a disability.
  4. The Eighth Circuit has held that accommodations are not reasonable unless they help the employee in performing the duties of his or her particular job.
  5. The Eastern District of Michigan have said that the plaintiff has the burden of establishing by a preponderance of the evidence that having the service dog by his side in all aspects of his job would have enabled him to perform the essential functions of that job. In other words, the plaintiff in that case did not establish that his service dog helped him perform the essential functions of his job.
  6. Plaintiff’s service animal trainer testimony that plaintiff’s service dog was trained to assist the plaintiff with getting on a plane, going to an amusement park, going out to dinner, and attending cheer competitions made the plaintiff a better person 100% of the time does not establish a claim to a benefit and privilege of employment that plaintiff identified.
  7. EEOC Interpretive Guidance hypotheticals addressed request for accommodations needed to perform the essential functions of the job, but do not provide guidance regarding equal access to employer-sponsored benefits and privileges of employment. Further, nothing in those hypotheticals suggest that freedom from mental and emotional pain constitute such a benefit or privilege.

 

IV

Thoughts/Takeaways

 

  1. Plaintiff has filed a notice with the district court of intent to appeal to the Eighth Circuit.
  2. Strategic decisions as a case goes along can profoundly influence the shape of the case. It is very unclear to me as to why plaintiff’s attorney shifted the argument away from reasonable accommodation to privileges and benefits of employment at the summary judgment stage.
  3. This case is terribly problematic for people with service dogs. The question is whether the disability is the one that is being accommodated or whether it is the essential functions of the job that is being accommodated. It is interesting that the district court cites Felix because that case stands for the proposition, as we discussed here, that it is the disability that gets accommodated and not the essential functions. This distinction matters, especially so in service animal cases. For example, it may be relatively straightforward to show that a service animal is accommodating a person’s disability, but it may be much harder to show that a service animal is a accommodating a particular essential functions of the job.
  4. If you are on the defense side, you certainly want to argue that any service animal has to relate to enabling that person to perform the essential functions of his or her job. On the plaintiff side, you want to argue that the service animal is accommodating the disability and it is those accommodations that enable the person with the disability to perform the essential functions of his or her job. On this question, expert testimony may be necessary. As a matter of preventive law, the better approach is to relate the service animal to accommodating the disability and not to the essential functions of the job.
  5. It makes sense to me that an equal benefit and privileges of employment case is going to turn upon how non-disabled employees have an opportunity to enjoy those equal benefit and privileges of employment. On the other hand, a reasonable accommodation case is focused on the individual person with a disability and does not get into the comparative analysis. The equal benefit and privileges of employment case is going to be a harder case on the plaintiff side than the reasonable accommodation case because of that comparative analysis.
  6. I realize that this case is ostensibly about the ability to be free from psychological pain or mental distress, but I don’t think this case is about that at all. This case is about strategic decisions made with respect to a person with a disability having a service animal. The case is also about whether the accommodation must relate to the essential functions of the job or to the disability itself.
  7. In disability discrimination cases especially, bare-bones complaints are not recommended. The better approach is a hybrid one where a plaintiff gives the defendant enough facts so that it is clear just what claims are being alleged. While fact-based pleading isn’t required, more is better.
  8. The court talks about enhanced performance of the person with the disability, but that isn’t the question. The question is whether the accommodation gets the person with the disability to the same starting line as the person without a disability.
  9. One thing strange about this case is that typically a service animal would always be by a person’s side when the animal is accommodating post-traumatic stress disorder or traumatic brain injury, but that doesn’t seem to be the case here. That said, depending on the disability it is entirely possible that you could have a service dog that is not always by the person with a disability side. For example, in the Deaf/deaf community it is not unusual at all for hearing dogs to be strictly home-based, mine certainly is.
  10. Remember, that the EEOC regulations (title I), have nothing dealing with service animals. However, the DOJ (titles II-III), certainly does have such regulations. It would be a mistake to apply the principles of this case to a non-employment situation because of the differences in those regulations.

I have been blogging since December, 2011. In all that time, I can count on one hand the number of times that I have blogged more than once during a week. As far as I can recall, I have never blogged on back-to-back days. I had actually completed two drafts of the blog entry that hit the mailboxes today before seeing a breaking news alert from Law 360 that Cummings had been decided by the United States Supreme Court, so I went ahead and finished the blog entry that hit the mailboxes earlier in the week and then did Cummings the next day.

 

I previously blogged on the oral argument in Cummings here. I made a prediction in that blog entry based upon the questions that were asked in the oral argument. It turns out my prediction was way off. As usual, the blog entry is divided into categories and they are: Justice Roberts majority opinion holding that the Rehabilitation Act and the Affordable Care Act do not allow for emotional distress damages; Justice Kavanaugh’s concurring opinion; Justice Breyer’s dissenting opinion; and thought/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

 

I

Justice Roberts Majority Opinion Holding That the Rehabilitation Act and the Affordable Care Act Do Not Allow for Emotional Distress Damages.

 

  1. Congress has broad power under the Spending Clause of the Constitution to set terms for dispersing federal funds. Such legislation is in the nature of a contract whereby in return for federal funds, the recipient agrees to comply with federally imposed conditions.
  2. Legislation enacted under the Spending Clause of the Constitution may be enforced through implied rights of actions and private plaintiffs can secure injunctive or monetary relief in such suits. Punitive damages are not available for such suits per Barnes v. Gorman, which can be found here.
  3. Congress has enacted four statutes prohibiting recipients of federal financial assistance from discriminating based upon certain grounds. Those statutes are: title VI of the Civil Rights Act, which forbids race, color, and national origin discrimination in federally funded programs or activities; title IX of the Education Amendments of 1972, which prohibits sex-based discrimination; the Rehabilitation Act of 1973, which bars funding recipient from discriminating because of disability; and the Affordable Care Act, which outlawed discrimination on any of the preceding grounds, in addition to age, by healthcare entities receiving federal funds.
  4. None of the statutes mentioned in ¶ 3 provide victims of discrimination a private right of action to sue the funding recipient in federal court. Nevertheless, the United States Supreme Court previously found an implied right of action in such statutes. Congress also later acknowledged that right in amendments to those statutes leading the Supreme Court to conclude that Congress had ratified the Court’s prior holding that private individuals may sue to enforce those statutes.
  5. Both the Rehabilitation Act and the Affordable Care Act expressly incorporate the rights and remedies provided under title VI.
  6. Spending Clause legislation operate based on consent. That is, in return for federal funds, the recipient agrees to comply with federally imposed conditions. So the key question is whether the recipient voluntarily and knowingly accepts the terms of that contract.
  7. Recipients cannot knowingly accept the deal with the federal government unless they would clearly understand the obligations that come along with doing so.
  8. If Congress intends to impose a condition on the grant of federal monies, it has to do so unambiguously.
  9. When considering whether to accept federal funds, a prospective recipient would surely wonder not only what rules it must follow, but also what sort of penalties might be on the table. So a particular remedy is thus appropriate relief in a private Spending Clause action, only if the funding recipient is on notice that by accepting federal funding, it exposes itself to liability of that nature.
  10. In other words, the question is whether a prospective funding recipient at the time it engages in the process of deciding whether to accept federal dollars, would have been aware that it faced such liability.
  11. A recipient is on notice to whatever remedies are explicitly provided in relevant legislation. Since it is Spending Clause legislation, a recipient is also on notice with respect to those remedies traditionally available in suits for breach of contract, compensatory damages and injunctive relief. Such an approach also means that punitive damages, per Barnes, are out because they are not generally available for breach of contract.
  12. Under Barnes, it can be assumed that a federal funding recipient is aware that for breaching Spending Clause based contract with the federal government, that it will be subject to the usual contract remedies and private suits, excepting punitive damages.
  13. It is hornbook law that emotional distress is not generally compensable in contract. Accordingly, it is not possible to treat federal funding recipient as having consented to damages for emotional distress as such damages are not traditionally, generally, or normally found in suits for breach of contract.
  14. The approach offered by Cummings pushes the notion of offer and acceptance beyond its breaking point. It is one thing to say that funding recipients know the basic, general rules. However, it is quite another to assume that funding recipients know the parameters of every contract doctrine, no matter how idiosyncratic or exceptional those doctrines may be. Such an approach also risks overturning legislative power.
  15. Barnes mandates that courts imply only those remedies that are normally available for contract actions, and a court is not free to treat statutory silence as a license to freely supply remedies that it cannot be sure Congress would have chosen to make available.
  16. The Restatement of Contracts saying that emotional distress damages are available where the contractor’s breaches are of such a kind that serious emotional disturbance with a particularly likely result simply doesn’t hold up on further analysis. The Restatement approach does not reflect the consensus rule among American jurisdictions. The Court goes on to explain that states are all over the place with respect to the Restatement with some following it, others rejecting it, and others finding a middle ground. As such, is not possible to argue that clear notice exists for allowing emotional distress damages in Spending Clause legislation where no such damages are explicitly stated in the statute.

 

 

 

II

Justice Kavanaugh Concurring Opinion (Justice Gorsuch Joined)

 

  1. The contract analogy is an imperfect way to determine the remedies for this particular implied cause of action.
  2. So, it is Congress and not the Supreme Court that should extend those implied causes of action and expand available remedies. Since that has not been done, emotional distress damages are not in play.

 

III

Justice Breyer Dissenting Opinion (Justice Sotomayor and Justice Kagan Joined)

 

  1. Citing to the Restatement Second of Contracts, emotional distress damages have long been traditionally available when the contract or the breach was of such a kind that serious emotional disturbance was a particularly likely result.
  2. A private cause of action does exist for enforcing the four antidiscrimination statutes tied into Spending Clause legislation.
  3. The majority opinion will affect the remedies available under all four of those statutes, impacting victims of race, sex, disability, and age discrimination alike.
  4. Compensatory damages serve contract law’s general purposes, however, punitive damages go beyond compensating the injured party for lost expectation and instead put him in a better position than had the contract been performed.
  5. Most contracts are commercial contracts in nature entered for pecuniary gain. Pecuniary remedies are therefore typically sufficient to compensate the injured party for their expected losses.
  6. Contract law treatises make clear that expected losses from the breach of a contract entered for nonpecuniary purposes might reasonably include nonpecuniary harms. So contract law traditionally does award damages for emotional distress where other than pecuniary benefits are contracted for or where the breach is particularly likely to result in serious emotional disturbance. Such contracts have included, among others: 1) contracts for marriage; 2) contract by common carrier, innkeepers, or places of public resort or entertainment; 3) contract relating to the handling of a body; and 4) contracts for delivery of a sensitive telegram message. In all of those cases, emotional distress damages are compensatory because they make good the wrong done.
  7. Breach of a promise not to discriminate falls into the same kind of contract as those described in ¶ 6. The purpose of statutes seeking to eradicate invidious discrimination is clearly nonpecuniary. Also, discrimination based upon race, color, national origin, sex, age, or disability is particularly likely to cause serious emotional harm. In fact, often times emotional injury is the primary and sometimes only harm caused by the discrimination, with pecuniary injury at most secondary. For this point, Justice Breyer cites to: 1) a case involving a high school student repeatedly sexually assaulted by her teacher; 2) a person using a wheelchair who was forced to crawl up two flights of stairs to access the courthouse (Tennessee v. Lane, here); and 3) many historical examples of racial segregation in which black patrons had to use separate facilities or services. Regardless of whether financial injuries were present in these cases, a major and foreseeable harm was emotional distress caused by the indignity and humiliation of discrimination itself.
  8. Justice Goldberg stated when affirming the Civil Rights Act of 1964 that antidiscrimination laws seek the vindication of human dignity and not mere economics.
  9. It is difficult to believe that perspective funding recipients would be unaware that intentional discrimination based on race, sex, age, or disability is particularly likely to cause emotional suffering. Justice Breyer also does not believe that recipient would be unaware that in the event of an analogous contractual breach they could also be held legally liable for causing emotional distress.
  10. The majority opinion overly narrows Barnes, which did not contain the limitation that perspective funding recipients could only be expected to be aware of basic, general rules and not the exceptions or subsidiary rules governing specific circumstances.
  11. The majority opinion’s comparison to punitive damages is simply not persuasive because punitive damages are not embraced by contract law analogy since they do not serve the central purpose of compensating the injured party. So, the punitive damages exception cited by the majority opinion is not relying on contract law principles at all, but rather on tort law.
  12. According to The Restatement, when contract and tort claims overlap, contract law does not preclude an award of punitive damages if such an award is appropriate under the law of torts.
  13. The Restatement does not attribute the availability of emotional distress damages to tort rather than contract law.
  14. Nothing in Barnes requires the Court to ignore directly applicable contract rules in favor of the less applicable general rule on which the majority opinion relies.
  15. The majority opinion creates an anomaly. Other antidiscrimination statutes that Congress has provided an express cause of action for do permit recovery of compensatory damages for emotional distress, such as §§1981, 1983 claims. What the majority opinion means is that until Congress fixes the lack of emotional distress being explicitly stated for in the statute, remedies available under certain statutes would not be available under other statutes, such as to students suffering discrimination at the hands of the teachers, patients suffering discrimination at the hands of their doctors, and others.
  16. It is difficult to square the majority opinion’s holding with the basic purposes that antidiscrimination laws seek to serve. One of those purposes is vindicating human dignity and not mere economics.
  17. The majority opinion allows victims of discrimination to recover damages only if they can prove that they have suffered economic harm even though the primary harm inflicted by discrimination is rarely economic. Victims of intentional discrimination may sometimes suffer profound emotional injury without any attendant pecuniary harms. The majority opinion leaves those victims with no remedy at all.

 

IV

Thoughts/takeaways

 

  1. The majority opinion means that unless the particular Spending Clause legislation has an explicit provision in its statute for recovery of emotional distress damages, emotional distress damages will not be recoverable. So, be sure to check the appropriate Spending Clause legislation to see if an explicit emotional distress statutory provision exists. If not, emotional distress is going to be out, though traditional contract compensatory damages and injunctive relief are in. The statutes are all fee shifting statutes. So, attorney fees are also in play.
  2. Both the majority and dissenting opinions rely heavily on Barnes v. Gorman, which you can read for yourself here.
  3. The Supreme Court did affirm that under all of the statutes a private cause of action exists.
  4. Justice Kavanaugh’s concurring opinion to my mind raises a question associated with standing as well. That is, if it is Congress that establishes causes of action, why isn’t that a cause of action in and of itself not sufficient to allow for standing? Justice Kavanaugh’s approach does bring into question, to my mind anyway, the validity of the holding of the Court in TransUnion, which we discussed here.
  5. It is hard for me to understand how it is arguable that the purposes of statutes seeking to eradicate invidious discrimination are anything but nonpecuniary. That is, it is clear that such laws seek the vindication of human dignity and not mere economics.
  6. Previously, we discussed that getting damages under title II of the ADA and the Rehabilitation Act in 1973 means proving deliberate indifference per this blog entry. So, the question becomes whether deliberate indifference is now necessary to prove compensatory damages when emotional distress damages are not in play. If so, and that indeed may be very well the case after this opinion, it is hard to believe that many plaintiff’s lawyers will be interested in taking on title II/§504 cases on a contingency fee basis because you are talking about a relatively high standard for damages that don’t even pertain to emotional distress. I will say that my experience is that many attorneys operating in §504/title II of the ADA do not work on contingency basis, though some do. For those working on a contingency fee basis, this decision may severely impact how they go about deciding what cases to take on. All that said, attorney fees are still in play, but you can expect after this decision that fewer and fewer plaintiff side attorneys will take title II and §504 cases.
  7. This case also has a huge impact on title III standing cases with respect to serial plaintiffs, especially Internet accessibility serial plaintiffs. That is, since emotional distress damages are out of bounds, how can the stigmatic harm be even possible to confer standing. This is especially so considering damages are not even allowed under title III of the ADA per 42 U.S.C. § 12188.

I had already gone through two drafts of putting this blog entry together when I saw that the United States Supreme Court came down with it decision in Cummings (we discussed the oral argument here). One thing Cummings shows me is that predicting the Supreme Court result from the oral argument is a fools errand. I will try to remember that the next time. The case will be my very next blog. In short, the majority opinion decides that emotional distress damages are simply not a part of the traditional calculus of contract damages and therefore, are not available under the Rehabilitation Act of 1973 as well as the Affordable Care Act. More on this next week or if I can swing it, later this week.

 

Today’s blog entry gets its origins from both a case in my pipeline and from me finishing a chapter on disability discrimination that will appear in the Rutter Group Federal Employment Law Litigation treatise later this year. So, the blog entry discusses two different concepts. First, does proving up a substantial limitation on the major life activity of working, which has customarily meant having to show that the plaintiff cannot do a broad range of jobs, survive the ADAAA? Second, does morbid obesity require an underlying physiological condition when claiming disability discrimination. As usual, the blog entry is divided into categories and they are: working at the major life activities; does morbid obesity require an underlying physiological condition in order to be considered a disability; Texas Tech University Health Sciences Center-El Paso v. Dr. Niehay facts; court’s reasoning that morbid obesity qualifies as an impairment in a regarded as claim even without evidence of an underlying physiological cause; court’s reasoning on the applicability of the catspaw theory; court’s reasoning that the lower court did not err in considering Texas Tech’s own personnel statements about what happened when the interim program director consulted Texas Tech University legal counsel; court’s reasoning that direct evidence existed; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Working as the Major Life Activity

 

In Sutton v. United Airlines the Supreme Court held that mitigating measures should be considered when deciding whether a person had a disability. That particular holding was overruled by the amendments to the ADA, the ADAAA. Sutton also said that to be substantially limited in the major life activity of working that you had to look at whether the individual could do a broad class of jobs. The question is whether after the amendments to the ADA does that principle still survive? The answer is confusing, especially if you do Boolean searching in a legal database as that will likely lead you one way that may not be accurate. What you do have to do is start with the case of Booth v. Nissan North America, 927 F.3d 387, 394 (6th Cir. 2019). Then, cite check, Sheppardize, or whatever you like to call it the section of Booth talking about how proving up working as the major life activity follows Sutton even after the ADAAA. When you do that, you find out that the EEOC also agrees that the analysis of the major life activity of working being substantially limited, which focuses on whether the individual can do a broad class of jobs, still survives even after the amendments to the ADA. See, EEOC Interpretive Guidance of title 1 of the ADA at 1630.2(j)(5) and (6). So, you have both case law as well as guidance from the EEOC itself talking about how the broad class of jobs is still the rule with respect to figuring out whether working as the major life activity is substantially limited. As such, if you are on the plaintiff side you definitely want to avoid alleging working as the major life activity if at all possible, a point which the EEOC makes in its guidance as well. If you do allege working as the major life activity and you do not have to, one wonders whether that wouldn’t give rise to a legal malpractice claim, and we discussed that possibility here.

 

II

Does Morbid Obesity Require an Underlying Physiological Condition in Order to Be Considered a Disability

 

The answer to this question entirely depends upon the jurisdiction you were in. At the federal level, the trend is very clear that morbid obesity requires an underlying physiological impairment in order to proceed with a disability discrimination claim. See here for example. However, many states have their own disability nondiscrimination laws and they are not necessarily tracking the federal trend. For example, we previously discussed how Washington has decided that morbid obesity is always a disability under Washington Law Against Discrimination. Recently, Texas has decided that under their disability nondiscrimination law, the Texas Commission on Human Rights Act law that morbid obesity does not require an underlying physiological impairment in a regarded as claim situation. Let’s take a look at the Texas decision, Texas Tech University Health Science Center-El Paso v. Dr. Niehay, here, decided on January 31, 2022, by the Court of Appeals of Texas.

 

III

 

Texas Tech University Health Science Center-El Paso v. Dr. Niehay Facts

 

The facts of this case are quite egregious and can be found in great detail in the opinion. Basically, you have a resident that weighed over 400 pounds. The program where she was doing a residency at did not appreciate that. She had a particular problem with the person who ran the residency program, an interim director. At one point, the interim director actually went into the University legal counsel’s office to figure out whether she could terminate the resident because of the plaintiff’s weight. The lawyer for the school said that she could not terminate based upon that reason because it would be discrimination. After hearing that, she repeated to the attorney that she believed that the resident was not performing well because of her weight and that she needed to find another reason to terminate her from the program. The University did not take steps to protect the information from when the program director consulted legal counsel when it was revealed what the nature of that conversation was at the program director’s deposition.

 

IV

Court’s Reasoning that Morbid Obesity Qualifies as an Impairment in a Regarded As Claim Even without Evidence of an Underlying Physiological Cause

 

  1. No dispute exists that plaintiff was morbidly obese.
  2. No dispute exists that her condition was transitory or minor.
  3. The Texas Commission on Human Rights Act defines a disability as a mental or physical impairment or being regarded as having such an impairment. Texas Labor Code Annotated §21.002(6).
  4. The Code of Federal Regulations as promulgated by the EEOC provided significant guidance to the interpretation of the Texas Commission on Human Rights Act.
  5. The relevant provisions in the Code of Federal Regulations define a physical or mental impairment as any physiological disorder or condition affecting one or more body systems. Those body systems might include the neurological, musculoskeletal, respiratory, cardiovascular, digestive, genitourinary, immune, circulatory, humic, lymphatic, skin, or endocrine system. 29 C.F.R. §1630.2(h)(1).
  6. While physiological disorder and physiological condition are not defined by the C.F.R., when the statute uses an undefined word, a court should apply the word’s common ordinary meaning.
  7. Webster’s defines physiology as the organic processes and phenomena of an organism or any of its parts of a particular bodily process.
  8. The word “condition,” when referring to a physical state includes, “a mode or state of being… proper or good condition (as for work or sports competition)… the physical status of the body as a whole… [Usually] used to indicate abnormality.” Morbid obesity meets these definitions.
  9. The Texas Court of Appeals cites to the Washington case that we discussed here.
  10. Plaintiff testified at her deposition that her morbid obesity is a contributing factor to cardiac issues and is also associated with metabolic syndrome, which includes hormonal imbalances, insulin resistance, and the potential to develop type II diabetes. She also testified that can affect activities such as walking, running, climbing, breathing and muscle function. Plaintiff and Amicus also directed the court to secondary medical authority viewing morbid obesity as a physiological disorder or disease without regard to its cause.
  11. Another Texas Court of Appeals has previously stated that obesity can be properly classified as a disability when it substantially affects the body system.
  12. In a regarded as claim, the plaintiff need not actually have the perceived impairment, rather plaintiff only needs to be regarded, whether it be correctly or incorrectly, as having it by the employer. It is illogical to suggest that a plaintiff must establish that the imagined impairment they are regarded as having by their employer-but don’t actually have-is also regarded by the employer as being caused by an imagined underlying physiological cause that they likewise don’t have. There is also no basis or authority for imposing that requirement on a portion of regarded as cases (where the plaintiff is shown to actually have the perceived impairment), but not others (where she isn’t).
  13. Texas Tech’s interpretation of the law makes no sense for another reason as well. That is, even if the employer did fabricate and imagine cause for the impairment that the person did not have, the specific cause they imagined would determine whether liability existed or not. For example, an employer deciding the employee was morbidly obese for psychological reasons could never be held liable for terminating the employee on that basis. Yet an employer who viewed the employee had being morbidly obese through no fault of their own-for physiological reason-would be subject to potential Texas Commission on Human Rights Act liability.
  14. The decision is limited to regarded as claims.
  15. It is possible that the defense may still prevail on the merits. For example, it might be able to show that the plaintiff was not qualified, especially since a person with a regarded as claim is not entitled to reasonable accommodations under the ADA as amended.

 

V

Court’s Reasoning on the Applicability of the Catspaw Theory

 

  1. Under the catspaw theory, a plaintiff need not show that the final, official decision-maker harbored a discriminatory animus toward her. Instead, the plaintiff may present evidence that a subordinate employee harbored such intent, and that the subordinate employee’s efforts led to a recommendation for termination, which the final decision-maker effectively rubber stamped. That is, federal courts will not blindly accept the titular decision-maker at the true decision-maker. Rather the question is whether the worker possess leverage, or exerted influence over the titular decision-maker.
  2. Another way to look at it is if a supervisor performs an act motivated by unlawful animus intended by the supervisor to cause an adverse employment action and that act as a proximate cause of the ultimate employment action, then the employer is liable.
  3. Some evidence existed that the interim program director was fulfilling the role of program director at the time of the disciplinary hearings. The interim program director testified at her deposition that she retained a function of program director, i.e. responsible for supervision of the program. She also reiterated that in her CV attached to her deposition. Finally, another physician who became a faculty member at the tail end of plaintiff’s disciplinary proceedings testified in his deposition that it was his understanding that the interim program director had been performing most of the duties of program director while another person served at the name director before his arrival.
  4. In a footnote, the court noted that the interim program director made corrections to her deposition testimony with her actual deposition testimony. If nothing else, that created the question of fact regarding the role she actually performed at the time of plaintiff’s termination.
  5. Evidence also existed that the interim program director used her position to initiate and pursue disciplinary proceedings against the plaintiff with limited supervision or input from the named program director. More particularly, without first consulting with the named program director, the interim director: 1) initiated an investigation into plaintiff’s performance; met with legal counsel; 2) sought advice on what disciplinary steps she should take; 3) called emergency meeting to discuss plaintiff’s performance; and 4) took the lead role in gathering and presenting information regarding plaintiff’s performance. She also sent emails outlining several new complaints about the plaintiff and advocated for urgent action. In the responses to those emails, several members of the disciplinary committee, advocated for plaintiff’s immediate suspension or termination based in part upon the information supplied by the interim program director.
  6. The named program director testified that he conducted no independent investigation to verify the information presented to him by the interim program director before recommending plaintiff’s termination. He also testified that had he been in charge of the disciplinary proceedings, he would have conducted an independent investigation into the claims against the plaintiff for reporting the matter onto the disciplinary committee.
  7. It was the interim program director that took the lead role in summarizing the evidence leading to the recommendation to terminate the plaintiff.
  8. No evidence existed that an independent investigation was launched before upholding the termination recommendation.

 

VI

Court’s Reasoning That the Lower Court Did Not Err in Considering Texas Tech’s Personnel Statements about What Happened When the Interim Program Director Consulted Texas Tech University Counsel

 

  1. A Yolanda Salas was present in the room when the interim program director met with Texas Tech University legal counsel, Frank Gonzalez, about the plaintiff’s situation.
  2. At that meeting, Salas said the following transpired:

 

Gonzalez advised Dr. Wells that “she had to find specific reasons why she wasn’t performing well to dismiss her,” and that Gonzalez advised Dr. Wells that she could not “use her weight as a reason to dismiss her.” He also reportedly advised Dr. Wells that there had to be other reasons to dismiss Dr. Niehay. Salas also testified that during the meeting, Gonzalez repeatedly cautioned Dr. Wells to be “careful how she handled this [and] that she couldn’t mention anything about her weight.” Dr. Wells agreed with Gonzalez that she could not mention Dr. Niehay’s weight, and then asked him how she could “word it,” apparently referring to her initiation of disciplinary proceedings, to instead “show” that Dr. Niehay was not performing well. And, Salas testified that Dr. Wells informed her after the meeting that she believed Dr. Niehay “wasn’t performing well because of her weight and that–but that she had to find a way to–find other reasons other than that” to terminate her. Salas expressed her belief that Dr. Wells was determined to find other reasons to dismiss Dr. Niehay, in order “to 20 As a predicate to this question, Dr. Niehay’s counsel first asked what Salas had told Dr. Niehay about what attorney Gonzalez had said. Texas Tech’s counsel then stated, “Objection, privileged.” The witness then asked that the question be repeated, and the counsel then asked a somewhat different question–whether a specific statement was made by attorney Gonzalez, to which no objection was made. 41 go around the weight issue” and that she later contacted various other faculty members, “just looking for a reason to dismiss her.”

 

  1. The parties agree that the communication between the interim program director and Frank Gonzalez were covered by the attorney-client privilege.
  2. The attorney-client privilege is waived when the holder of the privilege voluntarily discloses the privileged material to a third party.
  3. Salas, who was not a management level employee within the agency, lacked the independent authority to waive the privilege on Texas Tech’s behalf.
  4. The attorney-client privilege can also be lost during discovery proceedings when the party holding the privilege fails to adequately assert it, and instead allows the privileged information to be disclosed on the record.
  5. Texas Rules of Civil Procedure allows for an attorney to instruct a witness not to answer a question during an oral deposition if it is necessary to preserve a privilege.
  6. Texas Rules of Evidence supports the general rule that evidentiary privileges are waived at the privilege holder voluntarily discloses the privileged matter or consents to disclosure. One subsection of that rule specifically applies to the attorney-client privilege and limits the general waiver rule when there has been actual disclosure. That particular section provides a mechanism to clawback inadvertently disclose attorney-client communication providing it is done promptly.
  7. Texas Tech allowed the substance of the privilege communication to be elicited at a deposition and later transcribed. That is a problem because once the information has been disclosed, loss of confidentiality is irreversible.
  8. The preferred course of action would have been for Texas Tech’s counsel at Salas’s’ deposition to instruct Salas , who was a current employee, not to reveal attorney-client communications, an approach specifically allowed by the Texas Rules of Civil Procedure. That simply wasn’t done. Further, Texas Tech took no action to protect the privilege communication until almost 2 years later, which was certainly not promptly, when objected to plaintiff’s use of the deposition when it filed a motion to strike.

 

VII

Court’s Reasoning That Direct Evidence Existed

 

  1. Salas’s testimony was direct evidence that the interim program director had discriminatory intent against the plaintiff based upon plaintiff’s perceived impairment, and so the McDonnell Douglas burden shifting procedure does not apply to this case.
  2. For workplace comments to provide sufficient evidence of discrimination, the remarks must be: 1) related to the protected class; 2) proximate in time to the adverse employment decision; 3) made by an individual with authority over the employment decision at issue; and 4) related to the employment decision at issue.
  3. Salas’s testimony not only contained comments that the interim program director viewed plaintiff’s weight to be an impairment, but also expressed an intent to terminate the plaintiff and find other pretextual reason to cover up her true motives. The timing of those statements was just before the imposition of the probationary period that preceded plaintiff’s termination.

 

VIII

Thoughts/Takeaways

 

  1. Many states have disability nondiscrimination laws and they may take a different approach than the federal cases interpreting the ADA even though those states will look to the ADA and the EEOC for guidance. Washington and Texas have now done precisely that with respect to whether a physiological condition is required for morbid obesity claims. The Washington case goes further because it extends beyond regarded as claims.
  2. The Texas case is a regarded as claim case. That is a very important distinction because under both Texas and the ADA as amended, regarded as claims do not allow for reasonable accommodations. In this particular case, that could be a critical factor.
  3. Whether morbid obesity requires an underlying physiological condition will undoubtedly head to the Supreme Court eventually.
  4. As far back as 1993, the First Circuit held that morbid obesity was a disability under §504 of the Rehabilitation Act. See, Cook v. Rhode Island, Department of Mental Health, Retardation, & Hospitals, 10 F.3d 17 (1st Cir. 1993), which was also a regarded as claim.
  5. Labor and employment lawyers frequently discuss the catspaw theory of liability as it can come up frequently. I haven’t done that much in my blog. The Texas decision does a nice job of laying out the theory in an understandable manner.
  6. Attorney-client privilege can be compromised by third parties in the room.
  7. Texas Tech’s approach to protecting the conversation was a bit strange. It seemed that just got lost in the shuffle somehow. If you do have an issue with needing to protect the attorney-client privilege, it has to be done promptly.
  8. It is rare at depositions where a lawyer instructs a witness not to answer a particular question, but it does happen from time to time and indeed, as this case illustrates, it should happen.
  9. Even if somehow the conversation with the attorney was not admitted, the facts of this case are so egregious that the plaintiff might still survive under McDonnell Douglas.
  10. Independent investigations are an excellent preventive law tool. If utilized in this case, the result may have been different.
  11. There also seemed to be a lack of training on what the rights of people with disabilities are. Be sure to use knowledgeable trainers (it’s a huge part of my practice).
  12. Direct v. indirect evidence is made a big deal of here. That continues to be the case in most places. We did discuss one court’s frustration with having to make the distinction constantly here.
  13. The first section of this blog entry should make it very clear that a plaintiff should only when absolutely necessary alleged working as the major life activity. It is simply too difficult to prove and also creates a risk of legal malpractice, which we discussed here. I believe that it is likely that even after Kisor v. Wilkie, which we discussed here, that determining whether working at the major life activity is substantially limited per the Sutton test and the EEOC interpretive guidance will survive if it ever gets to the Supreme Court.