Today’s blog entry deals with two different cases and both of them deal with standing. The first case, Smith v. Golden China of Redwing, Inc., decided by the Eighth Circuit on February 17, 2021, which can be found here185186201204204, is the appeal of a case that we blogged on previously, here186187202205205. We won’t spend a lot of time on Smith. Suffice to say, that the Eighth Circuit dismisses the case without prejudice because they found that the plaintiff’s allegations of intent to return were not shown with sufficient specificity even after discovery occurred. For standing to be had, specificity is needed and not general and conclusory statements, especially after discovery has occurred.

The second case is Langer v. Manny Moe and Jack decided by the Northern District of California on January 15, 2021, which can be found here187188203206206. Richard Hunt previously wrote a summary of this case on his blog. As readers of my blog know, it isn’t unusual for me to blog on something that Richard has already blogged on if I feel like I can offer a different perspective. This is one of those situations. The facts of Langer are pretty straightforward. What you have here is a hard of hearing individual who went to the Pep Boys website. The website had videos but no captioning. The hard of hearing individual sues because he is not able to access the videos and thereby obtain the full use and enjoyment offered by Pep Boys with respect to its facilities, goods, and services. Pep Boys defends on the grounds that plaintiff’s claims were mooted by the launch of an entirely new website. They also defended on the grounds that the plaintiff lacked standing. The court finds that the claims were not moot but that the plaintiff lacked standing for the reasons to be explored below. As usual, the blog entry is divided into categories and they are: case is not moot; standing; and thoughts/takeaways. Of course, the reader is free to concentrate on any or all of the categories.

 

I

Case Is Not Moot

 

  1. Courts are more reluctant to find that in ADA plaintiff’s claims are mooted where the alleged barriers are not structural in nature v. when they are structural in nature because nonstructural barriers are more likely to recur.
  2. The Supreme Court has carved out an exception to mootness for acts that are capable of repetition yet evading review.
  3. In the case of a website lacking closed captioning for their videos, a defendant could easily remove any particular video immediately after a lawsuit is filed in order to moot the plaintiff’s claim. Then, the same defendant could also continue to upload such videos with impunity or fail to implement adequate safeguards to prevent future violations.
  4. When considering whether a violation is likely to recur, courts need to consider the bona fides of the express intent to comply, the effectiveness of the discontinuance, and the character of past violations.
  5. While it is true that testimony from Pep Boys indicated that Pep Boys has been developing an updated website for 18 months prior to beginning this litigation and that Pep Boys undertook extensive effort to ensure its website complied with WCAG, that testimony lacked some key information, such as: 1) the testimony was that the previous website was WCAG compliant and yet Pep Boys conceded that the video the plaintiff viewed on the old website did not have closed captioning; 2) the testimony did not explain whether uploading that video was a one time lapse in an otherwise compliant policy and if so, why Pep Boys failed to identify it; 3) the testimony did not say whether or how many other videos lacked closed captioning prior to September 2020, so there is no evidence regarding Pep Boys history of violations or lack thereof; 4) Pep Boys did not present any argument or evidence regarding WCAG standards, such as a declaration from an ADA consultant with expertise in WCAG standards; 5) it is unclear what specialized knowledge the person testifying had with ‘WCAG compliance, particularly since Pep Boys did not explain the relevant WCAG standards; and 6) website compliance with WCAG standards is informative but not dispositive of whether it violates the ADA.

 

II

Standing

 

  1. Ninth Circuit case law establishes that an ADA plaintiff may establish standing either by demonstrating deterrence or by demonstrating an injury in fact coupled with an intent to return to a noncompliant facility.
  2. On their own, websites are not places of public accommodations in the Ninth Circuit per Cullen188189204207207, which was affirmed on appeal here189190205208208. We discussed the Cullen oral argument at the Ninth Circuit in this blog entry190191206209209.
  3. Robles191192207210210, which we discussed here and is the famous Domino’s pizza case that United States Supreme Court denied cert. for, held that websites and applications are covered by the ADA to the extent there is a nexus between the website and the physical location. That is so long as there is a nexus between independent physical locations and its website or web based mobile app, discriminatory barriers impeding access to goods and services can give rise to an injury under the ADA.
  4. A plaintiff who fails to allege any connection between the website barriers and a physical location does not have an ADA claim. See this blog entry192193208211211.
  5. Plaintiff does not explain how the alleged violations have a nexus to Pep Boys physical locations. For example, plaintiff does not allege that he intended to visit a Pep Boys location and could not because the website was not accessible. He also did not represent that he was trying to use the website to order goods or services from Pep Boys physical locations. Rather, he merely suggested that the website’s videos are themselves a service that he was prevented from accessing. The claim doesn’t fly because case law makes clear that websites and the services offered on them are not public accommodations absent a nexus to a physical location. So, plaintiff’s allegations that he has difficulty watching a video on Pep Boys website is not sufficient by itself to allege injury under the ADA.

 

III

Thoughts/Takeaways

 

  1. Courts are beginning to fight back against the serial plaintiff, whether architectural drive-by or those who surf websites.
  2. General statements and conclusory statements dealing with a plaintiff’s intent to return are not cutting it in these two cases. In Red Wing, plaintiff testified that he didn’t even like Chinese food and wasn’t planning on going back unless the lawyer he works with directed him to do so.
  3. Just what is a gateway is a bit of a mess. The courts are all over the place as to when a sufficient nexus exist or not. In Langer, you had a hard of hearing individual but without specific allegations about how that hard of hearing individual wanted to use Pep Boys himself, his claim failed.
  4. As I have mentioned here193194209212212 and here194195210213213, I don’t believe the gateway theory for website accessibility will prove to be the ultimate rule in the end. Instead, I believe you are going to be looking at whether it is the of the type of business listed in 42 U.S.C. §12181(7), the ScribD approach, discussed here195196211214214, because of the some 23 different statements made by the United States Supreme Court in South Dakota v. Wayfair, which we discussed here196197212215215.
  5. Mootness in the absence of an expert that can testify as to how the website is complying with WCAG standards may be very difficult to pull off with respect to websites.
  6. WCAG standards continues to be the gold standard. The legal standard is meaningful accessibility. There are times when the WCAG standards still may not result in meaningful accessibility. You may need expert testimony here.
  7. The court puts it well when it says that website compliance with WCAG standards is informative but not dispositive of whether it violates the ADA. On this question, we are still waiting to see what the 11th Circuit will say in the Winn-Dixie case, which has been under review for quite some time now and no one knows how much longer they will take.
  8. If you have videos, make sure they are captioned. Otherwise, you are a sitting duck for litigation.

Today’s blog entry comes to me courtesy of Richard Hunt, who in his blog will often do many briefs of several cases at once. He focuses on title III and the Fair Housing Act, especially from the defense side. However, he did mention our case of the day in one of his blogs, and I thought I go into more depth on it. So, our case of the day is Martinez v. County of Alameda185189210214211 decided on January 12, 2021 by the Northern District of California and written by Judge Hixson. The case involves a blind individual who asked for help with respect to filling out a fictitious name form because she was blind. When the help was refused, she filed suit. As usual the blog entry is divided into categories, which track how the case was laid out. The categories are: facts; title II overview; facially neutral policies; fundamental alteration/undue burden; deliberate indifference; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

On March 29, 2019, Martinez went to the Alameda County Clerk-Recorder’s Office to file a fictitious business name statement for her new small business. Compl. ¶ 13, ECF No. 1. Prior to her visit, she downloaded the form from the acgov.org website and completed the fillable fields using screen access software. Id. ¶¶ 14-15. Because she is blind, she obtained help at home in manually signing the document’s signature line. Id. ¶ 16.

At the Clerk-Recorder’s office, Martinez spoke with an agent at the counter, who told her the form had checkboxes for “LLC” and for “individual,” and that Martinez had checked “individual” and entered her name in that area but had elsewhere indicated she was seeking a fictitious business name for an LLC. Id. ¶ 17. The employee informed Martinez that she would have to check the box for “LLC,” cross out her own name where she had written it and write in the name of her LLC in the relevant area. Id. Martinez asked the employee to assist and enter the information on the form because she was blind, but the employee said she could not assist because it was a legal document that must be completed by the business owner. Id. ¶¶ 18-19. Martinez explained that she herself was the business owner and that she was asking for assistance because she was unable independently to fill out the paper form. Id. ¶ 20. After the employee still refused to assist her, Martinez asked to speak with a supervisor but was told no supervisor was present and she would have to wait to speak with one. Id. ¶ 22. After waiting 45 minutes, Martinez again asked when she might expect to speak with a supervisor, but the employee told her there was still no supervisor available and that she would no longer discuss Martinez’s need for assistance. Id.

Martinez continued to stand at the counter waiting for a supervisor for approximately 20 more minutes. Id. ¶ 23. Finally, Defendant Maria Laura Briones, a supervisor at the Clerk-Recorder’s office, arrived and told Martinez no one could assist because the office required legal documents such as the fictitious business form to be filled out by the business owner. Id. ¶¶ 7, 23. Martinez again explained that she was the business owner and would be completing the form, but she required assistance because she could not complete the form herself. Id. ¶ 24. After Briones again refused her request, Martinez asked under what legal authority she was refusing to assist. Id. ¶ 25. Briones left to speak with Defendant Eva He, the Assistant Clerk-Recorder, and then returned to say that He confirmed no one from the Clerk-Recorder’s office would assist Martinez in completing her form. Id. ¶¶ 6, 26. When asked if He cited any authority for that decision, Briones said there was no legal authority, that she would no longer speak to Martinez, and then walked away. Id. ¶ 26. Martinez left without filing the form. Id. ¶ 27.

On November 14, 2019, Martinez wrote to Defendant Melissa Wilk, the Alameda County Auditor-Controller/Clerk-Recorder, and Alameda County, through its counsel, requesting a modification to the policy denying assistance to blind persons at the Clerk-Recorder’s office. Id. ¶ 30. Through counsel, Defendants responded that any assistance in filling out forms constituted legal advice and would not be provided. Id. ¶ 31

Martinez filed suit and the County of Alameda put forward a motion to dismiss.

II

Title II Overview

  1. 42 U.S.C. §12132186190211215212 provides that no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, program, or activities of the public entity, or be subjected to discrimination by any such entity.
  2. 28 C.F.R. §35.130187191212216213 provides that public entities have to make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability absent a showing of a fundamental alteration in the nature of the service, program, or activity.
  3. To state a claim for discrimination, Martinez has to show: 1) she is a person with a disability; 2) she is otherwise qualified/qualified; 3) she was excluded from participation in, denied the benefits of, or otherwise subjected to discrimination with respect to Alameda County’s services, programs, or activities; and 4) the inclusion, denial of benefits, or discrimination she suffered was by reason of her disability.
  4. No dispute exists as to Martinez being blind and being an otherwise qualified/otherwise qualified individual with a disability. The argument is over whether the discrimination was by reason of her disability. In particular, the County of Alameda claims that their policy is a neutral policy, and therefore no discrimination occurs.

II

Facially Neutral Policies

  1. Facially neutral policies can violate the ADA when those policies unduly burden persons with disabilities even when those policies are consistently enforced.
  2. Martinez pled sufficient facts demonstrating that the County of Alameda’s policy of refusing to assist anyone in completing paperwork disproportionately burdened her as a blind person and denied her meaningful access to Alameda County’s benefits and services.
  3. The exclusion, denial of benefits, or discrimination was by reason of her disability and therefore, constituted a violation of title II of the ADA.
  4. Cases cited by the County of Alameda did not involve a public entity’s failure to effectively communicate information to a person with a disability nor did they involve its policy of refusing auxiliary aids or services necessary for effective communication as alleged here.
  5. Martinez did not allege that the discrimination was because they charged her for filing a fictitious business name, a charge everyone has to pay, rather she alleged that they discriminated against her because of her exclusion from an equal opportunity to participate in, and enjoy the benefits of the County of Alameda’s services, program, and activities.
  6. The County of Alameda simply failed to provide authority or persuasive argument to overcome either: 1) the Ninth Circuit’s own binding precedent regarding facially neutral policies that disproportionately affect individuals with disabilities; or 2) the ADA regulatory requirements to provide auxiliary aids (28 C.F.R. §35.104188192213217214), and services, such as a qualified reader or another effective method, so that the form could be made available to a blind individual.

III

Fundamental Alteration/Undue Burden

  1. Public entities must take appropriate steps to ensure that communications with applicants, participant, and members of the public with disabilities are as effective as communication with others.
  2. Public entities are also required to furnish appropriate auxiliary aids and services where necessary to afford an individual with a disability an equal opportunity to participate in and enjoy the benefits of their services, program, and activities.
  3. Fundamental alteration/undue burthen are affirmative defenses for which the public entity asserting the defense bears the burden of proof.
  4. Determining whether a modification is reasonable or results in a fundamental alteration is an intensively fact-based inquiry.
  5. Case law and the final implementing regulation for title II of the ADA makes clear that whether a request for policy modification auxiliary aid or service results in a fundamental alteration or an undue burden is a fundamentally factual question inappropriate for disposition prior to discovery.
  6. The decision that proposed modification or auxiliary aid or service would result in a fundamental alteration to a public entities program, service, or activity, or results in an undue financial or administrative burden must be made by the head of the public entity or his or her designee after considering all resources available for use in the funding and operation of the service, program, or activity. It also has to be accompanied by a written statement of the reason for reaching that conclusion. 28 C.F.R. §35.164189193214218215.
  7. Even if a fundamental alteration or an undue burden exists, the public entity must still take any other action that would not result in such an alteration and that ensures to the maximum extent possible that individuals with disabilities receive the benefits or services provided by the public entity.
  8. So even if an individual with a disability requested accommodation is not feasible, the public entity still has to take any action to establish equality, or as close as possible to that, between persons with disabilities and individuals without disabilities using the public entity’s services.
  9. There was no form to alter as the plaintiff was seeking help in filling out the form. So, the argument that helping the plaintiff fill out the form would violate the California Government Code’s prohibition on altering records doesn’t wash.
  10. The County of Alameda’s argument that to help the plaintiff fill out the form would constitute the unauthorized practice of law does not wash either because long-standing California precedent holds that acting as a scrivener to perform the clerical service of filling in the blanks on a particular form in accordance with the information furnished by someone is not the unlicensed practice of law in California.

III

Intentional Discrimination/Deliberate Indifference

  1. To seek injunctive relief under title II, a plaintiff only has to allege that she was denied meaningful access to a public entity’s program, services, or activities.
  2. Getting monetary damages under title II of the ADA does involve a showing that the defendant’s conduct constituted deliberate indifference.
  3. Deliberate indifference requires both knowledge that a harm to a federally protected right is substantially likely and the failure to act upon that likelihood.
  4. Knowledge that a harm to a federally protected right is substantially likely is automatically satisfied where the need for such an auxiliary aid or service is obvious or where an auxiliary aid or service is required by statute or regulation.
  5. A qualified reader or other effective method of making the County of Alameda’s paper form available to the plaintiff, or another similar service or action, is explicitly sanctioned by regulation, 28 C.F.R. §35.104190194215219216.
  6. Once a public entity is put on notice of the need for an auxiliary aid or service, a public entity must undertake a fact specific investigation to determine an appropriate aid or service. The particular service will vary in accordance with the method of communication used by the individual; the nature, length, and complexity of the communication involved; and the context in which the communication at taking place. Don’t forget about this blog entry191195216220217.
  7. When determining what auxiliary aids or services are necessary, a public entity must give primary consideration to the requests of individuals with disabilities per 28 C.F.R. §35.160192196217221218(b)(2).
  8. A public entity may not merely speculate that a suggested auxiliary aid or service is not feasible but must determine what auxiliary aids or services are necessary based upon the information gathered from the individual with the disability and, where needed, from qualified experts.
  9. A public entity may not require an individual with a disability to be accompanied by another person. For that matter, it cannot rely upon the accompanying person to facilitate communication with an individual with a disability. 28 C.F.R. §35.160193197218222219(c).
  10. While it is absolutely true that deliberate indifference requires a public entity to act more than negligently, its belief that it was acting in good faith is not sufficient by itself to defeat an allegation that it acted deliberately in failing to adequately investigate or in refusing to provide a necessary auxiliary aid or service.
  11. Plaintiff alleged that the only auxiliary aid or service offered by the County of Alameda was one specifically prohibited by 28 C.F.R. §35.160194198219223220(c), i.e. reliance on a person accompanying her.
  12. The County of Alameda has not alleged any evidence that it undertook any fact specific investigation to determine an appropriate aid or service for the plaintiff. Rather, the County of Alameda merely provides speculative and conclusory assertions that her requested aid or service (being provided a qualified reader or scribe), was not feasible.
  13. Since plaintiff has properly alleged a claim under title II of the ADA, the derivative ADA title V and state law claims survive as well.

IV

Thoughts/Takeaways

  1. People with disabilities, including myself, are business owners.
  2. Undue burden/fundamental alteration is an affirmative defense and the burden is on the public entity alleging it.
  3. The amendments to the ADA mean that the ADA term is “qualified,” rather than the Rehabilitation Act term, “otherwise qualified.” The meaning of the two terms are identical.
  4. Facially neutral policies do not automatically get a pass.
  5. A person does not have to be Deaf, deaf, or hard of hearing to benefit from the effective communication regulations. Here, the person was blind. Also, as an FYI, the hearing loss community disfavors the term, “hearing impaired.”
  6. Unlike title III, the title II effective communication rule requires primary consideration be given to the person with a disability preferred mode of communications.
  7. Filling out a form is communication. That is, an individual is trying to understand what is being communicated to him or her in writing.
  8. You don’t see it litigated a lot, but it is noteworthy that the court cites to the Code of Federal Regulation requiring a public entity’s CEO to sign off on any situation where there is a claim of undue burden or fundamental alteration.
  9. A defendant is going to have a hard time prevailing on a motion to dismiss where they argue that a fundamental alteration/undue burden is involved.
  10. Undue burden is going to be extremely difficult to show because you look to the entire resources of the public entity. It is more likely that fundamental alteration will be an easier defense. While it may be an easier defense than undue burden, that does not mean it would be an easy defense. You basically need to show that the operations of your public entity’s program, services, or activities is going to be turned upside down.
  11. Even if you can show somehow that an undue burden or fundamental alteration exist, you are going to have to do everything short of that to figure out a win-win solution.
  12. Title II of the ADA does not have an interactive process requirement because that is a title I construct. All of the titles of the ADA do require an individualized analysis. See PGA Tour v. Martin195199220224221. This case clearly illustrates that the interactive process is something that title II entities should use even if theoretically they don’t have to. An interactive process between the parties may have enabled a win-win situation if it was used. All public entities, and for that matter I think every entity covered by the ADA, needs to be trained on the do’s and don’ts of the interactive process196200221225222.
  13. Under this opinion, a harm to a federally protected right is substantially likely is automatic if the need for an auxiliary aid or service is obvious. What does obvious mean? As a preventive law matter, you might look to “readily apparent,” with respect to the two inquiries that may be asked when someone is representing their dog as a service animal. See this blog entry for example197201222226223.
  14. The title I term is “reasonable accommodation,” while the title II and title III terms are, “reasonable modifications.” The two terms are identical in their meaning.
  15. Any entity covered by the ADA may want to think twice about denying a reasonable accommodation/modification where that accommodation/modification is specifically listed as a possibility in the Code of Federal Regulations. Same argument where a covered entity insists that a person do something that the regulations say you cannot insist upon.
  16. Even if title II of the ADA doesn’t require an interactive process, it does require a fact specific investigation to determine the appropriate aid or services. How do you determine the appropriate aid or services is hard for me to understand without engaging in the interactive process. I suppose it can be done, but it would not lead to the best results.
  17. Good faith is a defense to deliberate indifference but it is not taken at face value. You have to look beyond face value to the facts. Also, deliberate indifference, which we discussed here198202223227224, is not necessary for injunctive relief.
  18. The unauthorized practice of law argument is interesting. It didn’t work here because the person recording the information is not exercising independent legal discretion.
  19. Exhaustion of administrative remedies is not required for title II claims.
  20. It is mind-boggling to me the amount of money that was spent on litigating this when the accommodations/modifications were so simple and costs so little.

First, congratulations to the Tampa Bay Buccaneers for winning the Super Bowl Sunday. What an amazing record Tom Brady has developed over the years. Between the Rays, the Lightning, and the Buccaneers, Tampa Bay has become quite the sports town.

 

Turning to the blog entry of the day, last week I attended a webinar as part of the African-American Conference on Disabilities. It was also hosted with the Arizona Center for Disability Law, which is the protection and advocacy group for the State of Arizona. They had an excellent panel consisting of an EEOC attorney, an attorney from the Arizona Center for Disability Law, and a plaintiff employment attorney. The panel talked about title I issues in the context of Covid-19. What set this webinar apart from other webinars that I have attended was that it focused on questions and answers from the audience and much less so on material presented by the attorneys, though there was some of that. With permission, I wrote down all the questions that were asked and received permission to post the questions here, without naming names of course, and turn it into a blog entry. I also added two questions of my own. So, let’s play 21 questions. Finally, there are no categories to this blog entry, rather there are just questions posed and my answers.

 

  1. May an employer require vaccinations? Answer: yes, but it gets complicated. Unless you are a healthcare entity, most management labor and employment lawyers are recommending that you focus on encouraging vaccinations rather than on mandating vaccinations. You can require vaccinations, but you will have to deal with requests for accommodations if a person has a disability that makes getting vaccinated an issue or if the person has a religious objection based upon a sincerely held belief. An open question is just how much encouragement can you offer before it turns into something that is not voluntary, especially if you have a type of wellness plan where the EEOC has said that incentives can only be offered if they are de minimis. A variety of groups are asking the EEOC to clarify when encouragement turns into something involuntary with respect to Covid-19 vaccination.
  2. Do you have to accommodate an employee who does not have a disability but who has a high risk family member? Answer: no. The ADA certainly protects people who associate with people with disabilities even though they do not have a disability themselves. However, those provisions do not require that the person who associates with the person with a disability be reasonably accommodated. That said, we have discussed, such as here185185197198198208, situations where an employer ran into trouble because they did not even engage in the interactive process with a person who associates with a person with a disability. So while you do not have to reasonably accommodate a person without a disability who associates with someone who does have a disability, you do want to engage in the interactive process with an individual to see if something can work. The EEOC also recommends that approach as well.
  3. Is remote work a reasonable accommodation for a person being called back into the office where they have a disability that puts them at risk of Covid-19 or associates with someone with a disability? Answer: see above for the situation where a person associates with someone with a disability. With respect to an individual who has a higher risk if they get Covid-19, the question is going to come down to whether essential functions of the job includes attendance or whether attendance is just a personal preference. Before Covid-19, courts were usually holding that attendance was assumed to be an essential function of the job. Now, that argument simply can’t be made in many cases because the essential functions of the job are being done remotely for quite a period of time already. With respect to figuring out whether attendance is an essential function of the job, I always like to look to the Samper factors, which we discussed here186186198199199209. The better data an employer has that actually working in the office has some added advantage over working remotely, the better off the employer is going to be in arguing that attendance is an essential function of the job and not a personal preference.
  4. Can you treat Covid-19 the same way as you do the flu or mononucleosis. Answer: Well, the question really is to my mind whether Covid-19 is a disability. It very well may be in many cases. A disability is defined under the ADA, 42 U.S.C. §12102187187199200200210(1), as a physical or mental impairment that substantially limits one or more of life major activities, has a record of such an impairment, or is regarded as having such an impairment regardless of whether a physical or mental impairment actually exists. With the amendments to the ADA, it is quite possible that Covid-19 positivity would be a disability. The question is going to be whether the person is substantially limited in a major life activity as compared to most people in the general population. They very well might be. Another question is whether Covid-19 positivity would be a temporary disability not protected under the ADA. A disability of short duration can be an ADA disability. A preventive law step that I like to use is to borrow from the regarded as exception and ask whether the disability is both temporary AND minor. With Covid-19, you have a fair amount of Covid-19 long haulers. So, it can often be debatable whether the disability is temporary. Also, the disability may not be minor either. Again, the temporary and minor standard is something that I am borrowing from the regarded as exception as a matter of preventive law and using something for preventive law purposes is not the same as a legal standard. So where you have a person diagnosed with Covid-19, an employer definitely wants to engage in the interactive process for sure.
  5. Can you require a Covid-19 positive employee to work? Answer: Recently, OSHA came out with guidance on Covid-19, here188188200201201211. So, you definitely want to review that guidance before requiring a Covid-19 positive employee to work, particularly at a worksite.
  6. Can you just go ahead and fire a person who is positive for Covid-19? Answer: that would be a big mistake because Covid-19 positivity may very well be a disability as discussed above. It also may activate the FMLA as well, in addition to other laws passed recently to deal with the coronavirus crisis. Best bet is to engage in the interactive process and seek knowledgeable legal counsel with respect to the variety of laws that are activated by this situation.
  7. What is an undue hardship? Answer: in the title I area, an undue hardship can either be financial or logistical. With respect to financial, the entire resources of the employer are looked at. Accordingly, financial undue hardship is very difficult to show. With respect to logistical undue hardship, the best bet is to borrow the concept of fundamental alteration from title II and title III. In assessing logistical undue hardship, you are looking at whether the reasonable accommodation would fundamentally alter the nature of the position (which would lead to the conclusion that the employee is no longer qualified/otherwise qualified per the ADA), or fundamentally alter the employer’s operations. Remember, an employer does not have to reassign essential functions of any job to someone else. Marginal functions can get reassigned. Utilize the interactive process. If you get stuck, call the Job Accommodation Network, here189189201202202212.
  8. For employees who are deaf or hard of hearing, what about face shields and clear masks? Answer: the OSHA guidance talks about how these may be utilized for such employees. Regardless of whether you read lips, masks are a problem for the deaf and hard of hearing. If the person is a lip reader, it is obvious why masks are a problem. If the person is culturally deaf, masks are still a problem because the face is often used the get context for the signs. One problem you may run into is clear masks and face shields may not be medically rated the same as other kinds of masks that people wear. I just read an article on LinkedIn that Ford is developing a clear mask that can be certified as N95. Such a mask cannot come soon enough as far as I am concerned. Even so, employers are still under the obligation to figure out how they can effectively communicate with the deaf or hard of hearing employee. As a side note, do not use the term “hearing impaired,” as that term generally drives people in the deaf and hard of hearing community nuts. For example, nothing impaired with my hearing, rather it just doesn’t work the way a person with typical hearing does.
  9. Can you force someone onto FMLA rather than reasonably accommodate them? Answer: This is a topic that has come up in our blog before, such as here190190202203203213. Most people want to work. So, you are better off if you engage in the interactive process to see if the person can continue to do their essential functions of the job with or without reasonable accommodations rather than forcing them onto FMLA. If FMLA leave is the best choice after an interactive process, that is okay. However, forcing a person onto FMLA without an interactive process is risky.
  10. What if the employee is not your employee but works for a staffing company? Who has the obligation to accommodate the person? Answer: It is quite possible that both the staffing company and the company the person is working for have the reasonable accommodation obligations as joint employers. I know of one staffing company that takes a very aggressive stand in making sure that its employees are reasonably accommodated one way or the other. On a related note, last week we discussed the situation of where you had two companies that were so intertwined that the court held they were a single integrated employer, here191191203204204214.
  11. What if you have less than 15 employees but you took federal funds. Do you have to deal with federal disability nondiscrimination laws? Answer: yes. You will have to deal with §504 of the Rehabilitation Act of 1973, 29 U.S.C. §794192192204205205215, which has been held by the courts to apply to employment situations. The remedies available under that law include the full range of damages but not punitive damages. Injunctive relief and attorney fees are also possibilities as well. Keep in mind, taking federal funds to stay afloat through the coronavirus relief laws that were passed qualifies as taking federal funds. If an employee situation is involved, title I of the ADA would be the standard that would be used to figure out whether disability discrimination has occurred.
  12. How long are psychological evaluations valid for? Answer: this is something I see come up all the time in the educational setting, whether it be K-12, secondary, or postsecondary education. The question is what is the disability that you are dealing with. Many MH/LD disabilities are static. So if you are dealing with a disability that is static, requiring psychological evaluation to be current doesn’t make a lot of sense. You don’t want to be in a situation where you are requesting excessive documentation as that is something you are not allowed to do. You can of course receive documentation from healthcare professionals and other individuals to help assess the disability. I would be careful about insisting on current psychological evaluations just for the sake of the fact that the psychological evaluation is not current, especially where the disability is of the kind that doesn’t change much over time.
  13. Three secretaries are all working remotely but an employer requires a secretary that can’t come in to come in. Answer: definitely a potential problem. The first question I have is whether the secretary who is required to come in has a disability. If she does, then you need to engage in the interactive process to figure out if there is a win-win solution. If he or she does not and is associating with someone who does, the interactive process is highly recommended even though reasonable accommodations are not required. If it is the person with a disability who has a higher risk of Covid-19 that is being forced to come in and not the secretaries without a disability, then that is a problem.
  14. When should a person disclose a disability? Answer: this is a highly personal call. It depends on whether the disability is hidden or obvious. It also depends upon the type of employer. Certain employers may be more receptive than others. It is not unusual for a person with a disability to wait for the job offer and then start work before disclosing. Many people with disabilities may not have a choice but to disclose at the interview process. Employers must make reasonable accommodations for people with disabilities to access the interview process. Again, a real personal call. There is no obligation for the person with a disability to disclose. Whether a person with a disability discloses at all is something that I discussed in this blog entry that I posted on the Federal Bar Association blog, here193193205206206216. It is certainly a worthwhile read for understanding when a person with a disability decides to disclose. I can tell you from the legal side it is much better to disclose early because that way the employer is on notice. If they don’t know the person has a disability and there are performance issues, then the employer is not on the hook for what it did not know.
  15. Do I have the obligation to reassign duties that a person with a disability can’t do to other staff? Answer: marginal duties can be reassigned but you are under no obligation to reassign essential job functions.
  16. If a person can’t do the essential functions of their current job with or without reasonable accommodations, must the employer reassign that individual to a vacant position where they can do that job’s essential function with or without a reasonable accommodation? Answer: this entirely depends upon the Circuit you are in. In the Seventh Circuit, the answer is absolutely. In the 11th Circuit, the answer is no. That is, in the 11th Circuit you do want to allow the person with the disability to engage in the competitive process but you are not required to reassign that individual to a vacant position whose job they can do the essential functions with or without reasonable accommodation when they can no longer do their current job with or without reasonable accommodations. Eventually, this question will go up to the Supreme Court. My guess is that the Supreme Court would likely take the 11th Circuit approach, but you don’t know that for sure. That said, you can prevent a lot of problems if you engage in the interactive process and if you as the employer work with the person with the disability to figure out what the possibilities are even if you don’t go as far as reassigning the individual. I discussed this issue here.237207217
  17. Does the employee get the accommodation they want? Answer: no. The accommodation that gets given is the result of the interactive process. Whoever blows up the interactive process is the one that faces the consequences.
  18. What if an employee needs railings, but the employer offers a wheelchair instead? We just saw something similar in the blog entry that was just posted on understanding the ADA last week. Here, you may have two different titles at work. You may have title I with respect to the employee and you may have title III with respect to non-employees. Keep in mind, the applicable ADA architectural guidelines, ADAAG. There is no substitution for the interactive process. Be sure to get into the mindset of a person with a disability. There is a world of difference between railings and wheelchairs on a psychological level that you might want to consider.
  19. If I am an employee and need a reasonable accommodation and already have an attorney, do I copy in my attorney on the reasonable accommodation request? Answer: this is a matter of strategy for you to discuss with your attorney. There isn’t anything wrong with copying in the attorney but it does alert everyone to a more adversarial situation. You definitely want to work with your attorney on this. It is possible that the attorney might ghostwrite the reasonable accommodation request. What exactly happens here is going to depend upon the way the particular attorney wants to do it, the reputation of the employer, and you as the client. There isn’t a right answer per se to this question.
  20. Here is a question that I just thought of so as to make it 20 questions. I have an employee who must as part of their job deal with software as a service platforms that are not accessible to persons with disabilities. Since the software as a service platform is not mine, do I have the obligation to reasonably accommodate that employee? Answer: yes unless you can show an undue hardship (logistical or financial). If you are buying platforms from other companies for use by your employees, it would be a good idea to have indemnification/reimbursement provisions in that contract. Keep in mind, the ADA is a nondelegable duty, as we discussed here194194206207208218. So, the employer does have the obligation to reasonably accommodate that employee unless it can show an undue hardship. The gold standard but not the legal standard for Internet accessibility is WCAG 2-2.1 Level AA. The WCAG standard can be found here195195207208209219. The software as a service providers certainly need to be aware of those standards if they are not already so aware. Also, always engage in the interactive process.
  21. Here is another question I just thought of. I have an employee whose experience with the pandemic was not easy. The employee now wants to bring in emotional support animal to work. I thought emotional support animals were not protected by the ADA. Is that right? Answer: not exactly. While it is true under title II and title III of the ADA, such as we discusse d here196196208209210220, and for that matter the Air Carrier Access Act, under its most current regulations, as discussed here197197209210211221, the EEOC and title I of the ADA are silent. What you want to do, as we discussed here198198210211212222, is handle such a request the same way you would any request for reasonable accommodations. Then, engage in the interactive process to see if that is the only possibility that will work. There is a debate going on about whether the animal needs to be related to a specific essential function of the job or not. At the end of the interactive process and if nothing else works, then you may need to consider an emotional support animal. If the animal is a service animal under title II and title III regulations, the employer would be wise to allow the animal as a reasonable accommodation. Finally, preventive law means to look at the animal in terms of work performance and not in terms of how it relates to an essential job function, especially if it is a service animal.

Before turning to the blog entry of the day, I should point out that OSHA last week, January 29, 2021, issued a guidance entitled, “Protecting Workers: Guidance on Mitigating and Preventing the Spread of Covid-19 in the Workplace.” It can be found here184185197198198204. Lots of good information in the guidance. Keep in mind, that Covid-19 guidances are constantly evolving. For example, some people in medicine and public health are now saying to double mask (something sure to increase the frustration of deaf and hard of hearing individuals). That said, lots of good information in the OSHA guidance. I particularly like how they recognize that the deaf and hard of hearing don’t have it easy and that employers should have clear masks available to deal with the situation where people need to be understanding what is on the face or lips in order to understand what is being said. Also, the Wall Street Journal recently had an article talking about what the NFL has found out about Covid-19 transmission having played through their season. That information is not always consistent with CDC guidances, and CDC guidances taken as a whole can be very confusing to sort out. So, a business of any resources or an employer may want to consider having an infectious disease/public health person on retainer to help you sort this out.

 

Turning to the case of the day, Burnett v. Ocean Properties, Limited, a published decision decided by the First Circuit on February 2, 2021 that can be found here185186198199199205, the case asks the question of just what is an integrated employer. It then discusses whether a punitive damages award should be affirmed where the employer refused to engage in an interactive process despite being put on notice that an employee with a disability needed accommodations. As usual, the blog entry is divided into categories and they are: facts; integrated employer; reasonable accommodation; new trial; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

The Parties Ryan D. Burnett (“Burnett”) was injured in a dirt bike accident and rendered paraplegic over twenty-three years ago. Starting in 2009, Burnett worked as an associate at a call center in South Portland, Maine, taking room reservations for forty-five hotels and resorts in the United States and Canada, all marketed under the umbrella term, “Ocean Properties Hotels, Resorts & Affiliates.” Under 101 employees worked in the reservations department at the call center, whereas over 500 employees worked for the hotels and resorts under the Ocean Properties Hotels, Resorts & Affiliates umbrella. AmeriPort, LLC (“AmeriPort”), was Burnett’s employer, and it held itself out publicly as “Ocean Properties Reservations,” consistent with the umbrella moniker. Ocean Properties, Ltd. (“Ocean Properties”), was an entity that, as we discuss below, was interrelated to AmeriPort.

 

Burnett’s Request For An Accommodation The call center was located in a golf clubhouse whose public entrance sported heavy, wooden doors that pulled outward and then automatically closed. Just beyond the entrance was a slight, downward slope that caused Burnett’s wheelchair to roll backwards as the doors closed on him. As a result, Burnett needed to exert greater force as he struggled to enter. On August 28, 2014, Burnett sent a message to Nick Robertshaw (“Robertshaw”), the acting office manager, requesting push-button, automatic doors at the public entrance, explaining that the “[d]oors are heavy and hard to hold open while I push myself [through] [without] them closing on me.” Robertshaw did not respond to Burnett, but instead forwarded the message to his own supervisor, Lori Darsaoui (“Darsaoui”), and Darsaoui’s supervisor that same day. On September 10, 2014, Darsaoui e-mailed Mark Mooney (“Mooney”), who constructed the clubhouse and was responsible for ensuring the building was up to code, asking “if the set of large wooden doors used to enter the lobby of the clubhouse are ADA compliant.” Hearing no response, Darsaoui e-mailed Mooney again on September 30, 2014: “I wanted to follow up with you and see if you had found out if the doors here are ADA compliant[.] Please let me know as soon as you can.” Mooney responded that same day with, “As constructed when the building was built, Yes.” Darsaoui did not follow up on Mooney’s e-mail and Burnett did not receive a response to his request. One morning in October 2014, Burnett, while entering the clubhouse, injured his wrist (causing tingling in his hand) as he pulled open the heavy door and tried to quickly push himself inside. Burnett reported the incident to another supervisor who filed an incident report on his behalf, but again no one followed up with Burnett on his request for push-button, automatic doors. In June 2015, Burnett filed a disability discrimination complaint with the Maine Human Rights Commission (“MHRC”). In a meeting with Burnett to discuss his MHRC complaint, Darsaoui told him she was not familiar with ADA compliance and, for whatever reason, no specific mention was made of Burnett’s request for pushbutton, automatic doors. So even the filing of a complaint yielded Burnett no relief. On February 26, 2016, Burnett gave notice of his resignation, at which time the condition of the doors remained the same.

 

At trial, appellant stipulated that replacing the doors with not an undue hardship and that Burnett has a disability, was qualified to do his job, and worked for him Ameriport but disputed whether he also worked for Ocean Properties. The jury also asked the judge whether they could find that Ocean Properties was a joint employer and simultaneously fine weather Ocean Properties and him e-report where an integrated employer of Burnett. The judge gave the okay to that. In closing argument, Burnett’s attorney mentioned the golden rule and also threw out dollar amounts for the jury to consider. The jury winds up awarding Burnett $150,000 in compensatory damages. They then went ahead and deliberated with respect to punitive damages whereby they awarded the plaintiff $500,000 in total punitive damages (200,000 under the ADA and 300,000 under the Maine Human Rights Act).

 

The District Court denied the defendant’s motion for new trial but did issue a remittitur reducing the total award from $650,000-$500,000 and reducing the punitive damages award from $500,000-$350,000 ($125,000 under the ADA and $225,000 under the Maine Human Rights Act. The defendants, Ameriport and Ocean Properties then appealed.

 

II

Integrated Employer

 

  1. An integrated employer is where you have two nominally separate companies so interrelated that they constitute a single employer subject to liability.
  2. The court borrows a test from the NLRB as to when two related companies should be treated as one entity. That test involves looking at four factors: 1) centralized control over labor relations; 2) interrelation between operations; 3) common management; and 4) common ownership.
  3. Not all four factors are necessary to establish a singular employer relationship, rather the test is a flexible one placing special emphasis on the control of employment decisions.
  4. With respect to centralized control over labor relations: 1) Burnett believed he worked for Ocean Properties; 2) he signed a probationary form indicating his acceptance as a 90 day probationary period with Ocean Properties and a hiring statement indicating he was an employee of Ocean Properties or affiliated companies; 3) the list of employment policies he was given displayed Ocean Properties Reservations Center Training Manual on the bottom left-hand corner and he received a certificate from Ocean Properties Limited for completing mandatory harassment training; 4) his immediate supervisor hired reservation agents for Ocean Properties as well as Ameriport; 5) Burnett received wages and benefit from both companies; 6). his paystub contained the names of both companies on it; 7) the 401(k) plan was through Ocean Properties.
  5. When evaluating the interrelationship between operations, you look at whether you had shared employees, services, records, office space, and equipment, commingled finances, and handling by the parent of subsidiary taxes, such as payroll, books, and tax returns. Additional considerations include whether one entity exerts considerable influence over the other entity’s advertising and other decisions, as well as whether the former entity is directly involved in the latter entity’s daily sales, marketing, and advertising decisions.
  6. Plenty of evidence indicating an interrelationship was produced, including: 1) his immediate supervisor was responsible for hiring individuals at both companies; 2) Burnett and his immediate supervisor both had Ocean Properties email addresses; 3) both companies shared documents and logos; 4) Burnett’s immediate supervisor contributed to the advertisement of the other company; 5) both companies shared office space and a corporate office; and 6) payroll information was processed for one company by the other.
  7. With respect to the third factor, a individual doing work for both companies is evidence of that. That is, you had one individual playing a large role in the managing or supervising both entities.
  8. With respect to the fourth factor, little evidence exists either way, but it doesn’t matter because the other three factors are so overwhelming with respect to evidence of there being an integrated employer.

 

II

Reasonable Accommodation

 

  1. Sufficient evidence existed that Burnett needed an accommodation and that his requested accommodation was reasonable.
  2. Burnett testified that he daily experienced difficulty entering the clubhouse and injured his wrist once when doing so.
  3. The fact that Burnett was able to enter the clubhouse at the risk of bodily injury and was able to perform the duties of an associate once inside does not necessarily mean that he did not require an accommodation or that his requested accommodation was unreasonable.

 

III

Punitive Damages

 

  1. Plaintiff can get punitive damages if he can show that the employer acted with malice or reckless indifference.
  2. Malice and reckless indifference concern not the employer’s awareness that it is discriminating, but the employer’s knowledge that it is acting in violation of federal law.
  3. Burnett has to prove punitive damages by a preponderance of the evidence.
  4. Sufficient evidence existed that defendants acted with reckless indifference towards Burnett’s rights, including the failure to follow up with Burnett three different times regarding his accommodation requests: 1) after Burnett sent his employer and request for an accommodation in August 2014; 2) after Burnett reported his wrist injury in October 2014; and 3) after Burnett filed a complaint with the state of Maine Human Rights Commission in June 2015 and met with his employer to discuss the filing of that complaint. As a result of the defendant’s failure to respond to his request, Burnett experienced difficulty with the doors every day for months until he resigned.
  5. Defendants never responded to Burnett’s request for an accommodation.
  6. Defendant argued that they made a good faith attempt to comply with the law. However, good faith attempts require more than lip service.
  7. While it is true that the employer had a written open door policy with respect to a person requesting an accommodation, such a policy without more is insufficient to insulate an employer from punitive damages liability.
  8. Evidence exists that the integrated employer knew that a failure to respond to Burnett’s request was a violation of the law.
  9. His immediate supervisor did confirm with another that the doors were apparently ADA compliant when the building was built. However, he did not inquire further into the date the building was built and whether the doors remained compliant at the time of Burnett’s request. Ultimately, Burnett’s pleas simply went unanswered.

 

IV

New Trial

 

  1. While it is true that the verdict is inconsistent, the defendants never properly preserved that objection.
  2. Defendant didn’t object when the jury inquired whether an inconsistent verdict (integrated employer as well as a joint employer) was possible.
  3. Trial court was was within its discretion to exclude the testimony of a person that was offered on the eve of the trial and not during discovery when that testimony would have critically affected plaintiff’s case. In fact, such disclosure should have been made much earlier pursuant to federal rules.
  4. The golden rule statement of plaintiff’s attorney at closing was improper but it didn’t prejudice the case. That is, the case would have ended the same way in light of the evidence. Same goes for the plaintiff’s attorney throwing out specific dollar figures during closing arguments. That was also improper but didn’t change anything. Further, with respect to the damages amount being thrown out in closing argument the plaintiff didn’t properly preserved that challenge at trial.

 

V

 

Thoughts/Takeaways

 

  1. The discussion of an integrated employer, which I have not blogged on before, reminds me a lot of what we learned in law school when it comes to alter ego and piercing the corporate veil. If you have separate corporations, you would do well to observe corporate formalities so that the corporations are truly separate. Failure to do that, can run both corporations into trouble.
  2. The integrated employer factors are holistic. That is, you look at the overall picture rather than how each of the factors add up with each other.
  3. If an employee gives his or her employer enough information to indicate that reasonable accommodations are needed, the employer would do very well do not ignore those requests. Ignoring those requests is a bad idea and may even subject the employer, as here, to punitive damages.
  4. The discussion of punitive damages resembles in some ways the discussion of what is deliberate indifference under title II/Rehabilitation Act, which we discussed here186187199200200206. You can get punitive damages under title I but not under title II, the Rehabilitation Act, or title III.
  5. Good faith requires something more than just written policies.
  6. Interesting that there wasn’t a separate personal injury cause of action alleging that the injury was the result of the doors being noncompliant with the ADA, which they probably were. We discussed that possibility here187188200201201207.
  7. There is no grandfather clause with respect to the accessibility of physical facilities. You have to look at the applicable ADAAG guidelines in place at the moment in time the issue comes up.
  8. Doing the job adequately or even well doesn’t forfeit a person with a disability right to reasonable accommodations.
  9. Title I, II, and III of the ADA all have different statutory, regulatory, and interpretive rules from each other. Sometime, more than one title of the ADA at a time is involved simultaneously. For example, to Burnett, an employee, the heavy doors fell under title I. However, if the place that Burnett worked at is a place of public accommodation under 42 U.S.C. §12181(7), which it probably is, then to the individual non-employee seeking to access that place, the double doors would fall under title III (a completely different system than title I). While the result of having to move the double doors would probably be the same, how you get there would be completely different under title I then under title III. So, it can be really helpful to have access to an attorney knowledgeable about all of the titles of the ADA. I don’t know many attorneys besides myself that fit that criteria. In that case, you would want to find attorneys that have knowledge about the applicable title of the ADA involved. In other words, I have been involved in matters over the years where title I, title II, and title III are all involved simultaneously. This case involved the simultaneous operation of title I and title III. I have also been involved in matters where title I and title II were operating simultaneously. In short, simultaneous operations of multiple titles of the ADA is not as unusual as you might think.

Basketball, Referee, Game, Orange, Ball

 

Today’s blog entry come from the Wait a Second blog. It was something that I was going to blog on anyway, but the Wait a Second blog beat me to the punch. As everyone knows, I still will blog on cases that other bloggers have blogged on if I feel I can offer a unique perspective. This case certainly qualifies. The case is Girard v. International Association of Approved Basketball Officials Inc., a summary order from the Second Circuit. Wait A Second does a great job of discussing the case here182185191197197, and the case can be found here183186192198198. This blog entry is personal to me in many ways as in my 30s I refereed basketball. The set up of the Referee Association was very very similar to what is described in the case. No doubt, the Second Circuit gets it right with respect to whether the referee is an employee. However, my question is what if the same thing happened except the reason why it happened was because the referee had a disability as the ADA defines the term that did not interfere with him or her refereeing the games. Nevertheless, let’s assume the Referee Association assumed that the disability as the ADA defines the term would interfere or would potentially interfere with refereeing and then took adverse action against the referee. If this was an ADA matter would a court reach the same result at the Second Circuit? That is the question that this blog entry will explore. As usual, the blog entry is divided into categories and they are: facts; court’s decision; is the Referee Association a place of public accommodation; if the Referee Association is a place of public accommodation, where is the liability exposure; and thoughts/takeaways. Of course, the reader is free to concentrate on any or all of the categories.

 

I

Facts

 

As alleged in the complaint, Girard officiates middle and high school basketball games in Connecticut. IAABO and Board 6 control the assignment of referees to middle and high school basketball games at schools in Connecticut, and they determine which referees will work which games. While defendants do the “matchmaking” of pairing officials with games, the referees are paid on a per-game basis directly by the “schools, school districts and league of schools.” Compl. ¶¶ 72-73. Referees are paid more for working high school varsity-level games than for “subvarsity” games at the middle school, freshman, and junior varsity levels. Compl. ¶ 51. – 4 – Defendants use a peer rating system to determine which referees are eligible to officiate varsity games. Defendants’ ratings of referees and their determinations of varsity eligibility thus significantly affect the number of work opportunities available to referees and what they will be paid. As further alleged in the complaint, defendants’ peer rating system has led to disparate varsity-eligibility and rankings between genders. Approximately 99% of the varsity referees on Board 6’s roster are male. Defendants have refused to adopt objective methods for assessing referees, and thus continue to use subjective rankings systems that are influenced by gender bias. Defendants’ practices have caused female referees to be underrepresented at the varsity level. In 2009, Girard complained to the president of Board 6, David Anderson, that she was not receiving opportunities to develop in games with seasoned referees and advance to the varsity level. Instead, she was assigned to low level games because of her gender. Dissatisfied with Anderson’s response, Girard filed a grievance with Board 6’s Professional Standards Committee, but the committee rejected it. Thereafter, defendants reduced the number of games Girard was assigned to and continue to assign her to sub-varsity games in retaliation for her complaints about gender discrimination.

 

II

Court’s Decision

 

  1. To state a title VII claim, a plaintiff has to allege the existence of an employer employee relationship.
  2. No such relationship exists under two different Supreme Court precedents. That is, the plaintiff does not meet the common-law element of control nor does the plaintiff meet a 13 factor test that the Supreme Court laid out in one of its cases.

 

III

Is the Referee Association a Place of Public Accommodation under the ADA

 

  1. As we have discussed here184187193199199, the trend is very much that a place of public accommodation does not have to be a physical space.
  2. 42 U.S.C. §12181185188194200200(7) has 12 categories what are places of public accommodations but the examples in those categories are not exclusive. 12181(7) (F) is a service establishment and 12181(7)(L) is a place of exercise or recreation. Either of those might fit for a Referee Association. That is, the Referee Association is certainly providing a service to its referees. Also, the referees are performing their job in a place of exercise or recreation, i.e. gymnasiums.
  3. The Referee Association is certainly operating an Association.
  4. PGA Tour, Inc. v. Martin186189195201201 makes clear that the 12 categories of public accommodation need to be construed liberally to allow people with disabilities equal access to the wide variety of establishments available to those without disabilities.
  5. As mentioned in PGA Tour, Inc. v. Martin, the events that the referees referee occur at types of places specifically identified by the ADA as a place of public accommodation, i.e. gymnasiums.
  6. Also by way of analogy to PGA Tour, Inc. v. Martin, a Referee Association, like the PGA Tour, offers at least two privileges to the public-that of watching the basketball game with the referees and allowing people to be referees in the games if they are able to do the job of being a referee.
  7. Similarly to PGA Tour, just because the Referee Association serves the schools by refereeing its games and the public by making sure the games are played within the rules, that does not preclude them from having another set, the actual referees, against whom it may not discriminate.
  8. Being a member of the Referee Association is a privilege offered by the Referee Association and therefore title III coverage may be had under the case discussed in this blog entry187190196202202.

 

IV

 

If the Referee Association Is a Place of Public Accommodation under the ADA, Where Is the Liability Exposure

 

  1. 42 U.S.C. §12182188191197203203(b)(1)(A)(i) makes it discrimination to deny an opportunity to a person with a disability on the basis of a disability from participating in or benefiting from the goods, services, facilities, privileges, advantages, or accommodations of the place of public accommodation.
  2. 42 U.S.C. §12182189192198204204(b)(1)(A)(ii) makes it discrimination to deny the opportunity for a person with a disability on the basis of the disability to participate in or benefit from a good, service, facility, privilege, advantage, or accommodation that is not equal to that afforded to other individuals.
  3. 42 U.S.C. §12182190193199205205(b)(1)(D)(i) makes it discrimination for a place of public accommodation to utilize standards or criteria or methods of administration that have the effect of discriminating on the basis of disability.
  4. 42 U.S.C. §12182191194200206206(b)(2)(A)(ii) makes it discrimination or place of public accommodation to fail to make reasonable modifications and policy, practices, or procedures, when such modifications are necessary to avoid such goods, services, facilities, privileges, advantages, or accommodation to individuals with disabilities absent a fundamental alteration.
  5. 28 C.F.R. §35.130192195201207207(b)(1)(v) makes it discrimination for a public entity to aid or perpetuate discrimination by providing significant assistance to an agency, organization, or person that discriminates on the basis of disability.

V

Thoughts/Takeaways

 

  1. The point of this blog entry is to lay out the case as to why a person alleging disability discrimination against a Referee Association may wind up with a very different result than the referee who alleged title VII violations.
  2. The key question is going to be whether the Referee Association is a place of public accommodation. A strong argument can be laid out that it is, as discussed above.
  3. If the Referee Association is a place of public accommodation, then any number of regulations and statutes can come into play.
  4. If the Referee Association is a place of public accommodation and is discriminating on the basis of disability, then it would be perfectly appropriate to ask that the schools paying the referees stop contracting or utilizing the Referee Association. I could also see a referee filing suit saying that a school would have to stop contracting with the Referee Association.
  5. Since this is the Super Bowl coming up, it is my understanding that most NFL referees are employees and not independent contractors. As such, they would be under title I of the ADA and not under title III. However, if a referee was an independent contractor (all high school and junior high referees are), then this blog entry would be applicable if the referee were to face discrimination based upon a disability.
  6. There is absolutely no reason why a person with a disability cannot be a referee. I did it for years.
  7. Of course, assuming a place of public accommodation is found the referee was still have to prove he or she had an actual disability, a record of a disability, or was regarded as having a disability. From my experience, many of those possibilities could easily be in play with respect to an aggrieved referee.

Today’s blog entry deals with a topic I have not dealt with before and with topics that I have dealt with before. The topic that I have not dealt with before in my eight years of blogging on the Understanding the ADA is the concept of vicarious exhaustion. There are topics that I have dealt with before, such as statute of limitations, otherwise qualified, etc. Today’s case is Pappas v. District of Columbia, which can be found here180184202206. It is a District Court decision from the District of Columbia decided on January 12, 2021 written by Judge Rudolph Contreras. As usual the blog entry is divided into categories and they are: Key facts; vicarious exhaustion; statute of limitations for §504; statute of limitations §504 claims properly tolled; statute of limitations §504 claims equitably tolled; §504/ADA failure to accommodate claim; adequate allegations that the police district has knowledge of the need for accommodations; otherwise qualified/qualified; reasonableness determination of accommodations requested not appropriate on a motion to dismiss; miscellaneous matters; and thoughts/takeaways. Since this blog entry is long, I would suggest at a minimum reading the key facts and the thoughts/takeaways section. After that, you might want to focus on the topical areas of interest. The particular topics are separate enough from each other where if you were just concerned about one particular issue, you wouldn’t need to read many of the other sections in the blog entry dealing with other issues. I suppose that is a fancy way of saying that the reader is free to focus on any or all of the categories.:-)

 

I

Key Facts

 

Plaintiffs Steve Pappas, Tawana Lindsay, Nichole Mathies, and Malachi Malik, former employees of the District of Columbia Metropolitan Police Department (“MPD”), brought this class action against MPD, the District of Columbia, and Peter Newsham in his official capacity as Chief of Police of the MPD (collectively, the “Defendants”), challenging the MPD’s practice of requiring employees who spend 172 cumulative days within any 24-month period at less than full-duty status to take disability retirement, without offering reasonable accommodations through reassignment, job restructuring, or extended leave. They argue this policy violated the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101, et seq., and Section 504 of the Rehabilitation Act (“Section 504”), 29 U.S.C §§ 794, et. seq. Mr. Pappas also alleges that the MPD made improper medical inquiries and subjected him to improper medical examinations, in violation of the same statutes.

 

Mr. Pappas filed a formal charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) on October 5, 2015. See id. ¶ 57. On August 10, 2016, the EEOC issued a determination letter that referred Mr. Pappas’s claim to the U.S. Department of Justice (“DOJ”), finding that there was “cause to believe that by [MPD’s] actions and through its policies, [MPD] had violated the ADA rights of Mr. Pappas and a class of similarly situated individuals.” Id.; see also Pls.’ Mem. Opp’n Defs.’ Mot. Dismiss Pls.’ Am. Compl. (“Pls.’ Opp’n”), Ex. A (“Pappas EEOC Reasonable Cause Determination”), ECF No. 21-2.3 On June 3 Mr. Pappas’s EEOC Reasonable Cause Determination and EEOC Charge, see Defs.’ Mot. Dismiss, Ex. B (“EEOC Charge”), ECF No. 19-3, can be evaluated by the Court on this motion to dismiss due to their status as judicially noticeable public records. See Ndondji v. InterPark Inc., 768 F. Supp. 2d 264, 272 (D.D.C. 2011) (noting that on review of a motion to 7 21, 2019, the DOJ issued Mr. Pappas a right to sue letter for his claim. See Am. Compl. ¶ 57. Mr. Pappas filed suit on September 19, 2019. Id. An amended complaint was filed by Mr. Pappas, along with Ms. Lindsay, Ms. Mathies, and Mr. Malik on December 12, 2019. Id. Defendants have now moved to dismiss the entire complaint.

 

II

Vicarious Exhaustion

 

  1. Vicarious exhaustion allows the non-filing party to join the suit of another similarly situated plaintiff who did file an administrative complaint against the same defendant.
  2. Vicarious exhaustion is available only to parties whose claims are so similar to those asserted by the original plaintiff that no purpose is served by requiring them to file independent charges.
  3. The purported similarity of the claims in question have to be evaluated for whether the original filing performed the principal notice function of the EEOC filing requirements.
  4. In order for vicarious exhaustion to apply, the original EEOC charge must: 1) put the employer-defendant on notice of all charges by the similarly situated plaintiff; and 2) provide the employer and the EEOC with an opportunity for administrative consolidation and resolution.
  5. While a failure to exhaust administrative remedies under the ADA is an affirmative defense, which means the defendant typically bears the burden of pleading and proving lack of exhaustion, an exception exists where in response to a motion to dismiss, plaintiffs concede they failed to exhaust administrative remedies and offer legal justification for that excuse. In that situation, the court can consider it on a 12(b)(6) motion.
  6. Pappas, Ms. Lindsay, and Ms. Mathies claims all arose from the same allegedly discriminatory mechanism, the police district’s forced retirement policy.
  7. The filing by Mr. Pappas provided the required notice for vicarious exhaustion to be invoked because it alerted the EEOC to the police district’s unlawful forced retirement policy and was a standardized application to both Mr. Pappas and other officers and provided them an opportunity for resolution.
  8. It is of no matter that the specific circumstances giving rise to the grievances of each of the plaintiffs are distinguishable because each plaintiff plans to prove their allegations by demonstrating the same thing (a pervasive pattern and practice of discrimination).
  9. No different set of facts are at issue because the discrimination was an integral part of an employer’s practices. In fact, the forced retirement policy was such an integral part of the employer’s practices that it was codified into a formal department policy.
  10. The primary purpose of the exhaustion doctrine, notice to the police district of the allegedly discriminatory act, was accomplished by Mr. Pappas’s EEOC charge that detailed his belief his firing was the result of the forced retirement policy and constituted discrimination on the basis of his disability. Since Ms. Lindsay and Ms. Matthie challenged the same policy, vicarious exhaustion works for their claims.
  11. Malik’s claim does not get the benefit of vicarious exhaustion because he did not allege that he was subjected to involuntary retirement under the forced retirement policy. Instead, he seemed to imply his unwilling retirement was the result of a different policy of the police district saying that active duty police officers could not have defibrillators. So, given that he did not allege discrimination under the forced retirement policy, the police district could not have notice of his claims by the filing of Mr. Pappas’s EEOC charge. Hence, vicarious exhaustion does not work for Mr. Malik.

 

III

Statute of Limitations for §504

 

  1. 504 of the Rehabilitation Act does not contain its own statute of limitations period. So, courts have to borrow from the analogous state cause of action. In the District of Columbia, courts have either applied the three-year statute of limitations for personal injury claims or the one year limitation period governing allegations of unlawful discrimination under the District of Columbia Human Rights Act.
  2. In 2012, the D.C. Circuit held that the D.C. Human Rights Act was the analogous cause of action for Rehabilitation Act claims, and accordingly applied the one year limitation in existence for the D.C. Human Rights Act rather than the three-year personal injury statute of limitations.
  3. There were several reasons why the D.C. Circuit Court of Appeals opted for the D.C. Human Rights Act over the personal injury statute of limitations and they were: 1) the personal injury statute of limitations does not deal with remedying discrimination claims; and 2) the D.C. Human Rights Act targets virtually all forms of disability discrimination, encompasses a range of activities covered by Rehabilitation Act, and has a statute of limitations intended specifically for claims of discrimination.
  4. While the D.C. Circuit determination decisions are not binding on the District Court when it comes to District of Columbia specific matters and the Rehabilitation Act concerns federal law, the decision still warrants considerable persuasive weight as an interpretation of District of Columbia law, of which the District Court of Appeals is the ultimate authority.
  5. The vast majority of courts considering the issue after the D.C. Circuit decision have also agreed with the one year statute of limitations being the proper analogous statute.

 

IV

Statute of Limitations §504 Claims Properly Tolled?

 

  1. Pappas filed a formal charge of discrimination with the EEOC on October 5, 2015, almost exactly 7 months after his retirement from the police force. Since that filing was done within the one year limitation period, his claim is properly tolled on that date.
  2. Once the EEOC or DOJ issued a right to sue letter, statute of limitations starts over. On June 21, 2019, Mr. Pappas received a right to sue letter for his claims. He then filed suit on September 19, 2019. Therefore, his §504 claims are timely as his complaint was submitted before the tolled one year statute of limitations period expired.
  3. The other plaintiffs are not so lucky for the reasons appearing in the rest of this section.
  4. 504 claims brought by non-federal employees do not require administrative exhaustion.
  5. Given that exhaustion is not required, much less a jurisdictional requirement for non-federal employees under §504, the other plaintiffs simply cannot piggyback on Mr. Pappas’s claims with respect to the statute of limitations for their §504 claims.
  6. Congress has never stated that when it comes to §504 claims for non-federal employees, that the judiciary cannot hear an action until the administrative agency has come to a decision and such explicit language from Congress is necessary to find an administrative exhaustion requirement. In fact, §504 contains no such sweeping and direct language and neither does title VI of the civil rights act that it ties into.
  7. So, you have a failure to meet a statutory deadline and not a failure to exhaust administrative remedies. Further, plaintiffs failed to identify any application of the vicarious exhaustion doctrine that allows it to toll a statutory deadline, much less one where exhaustion is not even required.

 

V

Statute of Limitations §504 Claims Equitably Tolled

 

  1. 504 contains no statute of limitations and borrows its limitation timeframe from the District of Columbia Human Rights Act.
  2. The District of Columbia does not recognize an equitable tolling exception to the statute of limitations, except for lulling and the discovery rule.
  3. The lulling doctrine suspends the statute of limitations only when the defendant has done something that would tend to goad the plaintiff into inaction thereby permitting the limitation prescribed by the statute to run. Under the discovery rule, a claim does not accrue until the plaintiff after exercising due diligence has discovered or reasonably should have discovered all of the essential elements of her possible cause of action.
  4. Nothing in the plaintiffs complaints fit into either of these exceptions and therefore both doctrines do not apply. So, Ms. Lindsay, Ms. Matthies, and Mr. Malik are not entitled to equitable tolling of their §504 claims.
  5. In a footnote, the court noted that tolling arguments can be raised in either a complaint or later opposition to briefing.
  6. In a footnote, the court said that federal equitable tolling principles are of no help either because this was not an extraordinary and carefully circumscribed instance. Extraordinary circumstances are circumstances beyond the control of the complainant that make it impossible to file a complaint within the statute of limitations, which was not the case here. That is, no explanation was provided by all the plaintiffs, save one, as to why they sat on their rights until after the filing deadline passed.

 

VI

  • 504/ADA Failure to Accommodate Claims

 

  1. To prevail on a claim for failure to accommodate, the plaintiff has to demonstrate: 1) they are a qualified individual with a disability; 2) their employer had notice of the disability; and 3) the employer denied the employee’s request for reasonable accommodation. A person with a disability must also alleged that they first requested reasonable accommodations from their employer and was then refused in order to bring a failure to accommodate claim.
  2. An employee’s request for an accommodation need not be in writing or use the specific phrase “reasonable accommodation,” but the request has to make sufficiently clear that the employee wants assistance with his or her disability so that he or she may return or continue to work.
  3. What matters under the ADA are not formalisms about the manner of the request, but whether the employee or a representative of the employee provides the employer with enough information that under the circumstances, the employer can fairly be said to know of both the disability and the desire for an accommodation.
  4. Plaintiff’s arguments that their failure to request reasonable accommodation should be excused because those requests would have been futile simply do not hold up in light of their pleadings that identify other employees who receive accommodations after presumably requesting them.
  5. The forced retirement policy would not so absolute to essentially foreclose opportunity for accommodations if requested. For example, the forced retirement policy does not contain any explicit ban on accommodations, such as transfer to another department.

 

VII

Adequate Allegations That the Police District Has Knowledge of the Need for Accommodations Were Made

 

  1. An affirmative request for accommodations is not required where an employer knows both that the employee has a disability and knows that the employee is seeking assistance from the employer in the form of accommodations.
  2. Mere notice of a disability does not ordinarily satisfy the ADA’s request requirement.
  3. Knowledge of a disability is different from knowledge of the resulting limitation and is certainly different from knowledge of the necessary accommodation.
  4. Several courts have determined that communications from medical professional to an employer can constitute a request for accommodations.
  5. In a footnote, the court notes that determining whether plaintiffs communicated to the police district that they sought additional accommodations can be a very complicated calculus for employers given the repercussions that can arise from assuming the need for accommodations where there is not one. The congressional report accompanying the ADA states, without an affirmative request from the disabled employee, it is inappropriate on the part of the employer to provide an unsolicited accommodation.
  6. The amended complaint does not allege that the plaintiffs doctors made a specific request for accommodations or noted an accommodation in the job duties or job role was medically necessary. Rather, the Dr.’s notes simply summarized the current condition of the plaintiffs. Even when construed liberally, the physician reports are not enough to possibly convey a desire by plaintiffs to the police district for accommodations.
  7. Plaintiff failed to allege anywhere in their amended complaint that the physician assessments in question were actually sent to or received by the police district.
  8. In a footnote, the court said that plaintiffs have failed to plead in the amended complaint that plaintiffs affirmatively notified the police district of their desire for reasonable accommodation through any channel, formal or informal.
  9. With one exception, plaintiffs provide no evidence showing that they made any request for continued employment.
  10. The amended complaint contains no indication that the police district was notified by Mr. Pappas or that Mr. Pappas communicated to a police district employee, whether it be a colleague or supervisor, that he was seeking a new position in order to accommodate his disability or that he wanted further assistance from the police district in this regard.
  11. The act of applying to a new position with a different division of a large employer without any further articulation of a desire for reassignment as an accommodation, falls short of the precedent for what suffices as an accommodation request.
  12. The amended complaint does not describe any communication by Mr. Pappas to his supervisor or any other police district employee conveying either his desire for reassignment or that reassignment was his rationale for applying to the vacant position.
  13. Lindsay fares differently. In particular, the amended complaint states that Ms. Lindsay requested the postponing of a disability retirement consideration hearing to a later date by which she was expected to have fully recovered from her injury. Such a statement could be construed as a request by Ms. Lindsay for continued employment. By requesting a delay in her retirement hearing, Ms. Lindsay was essentially asking to remain a member of the police district until she recovered from her foot injury. Therefore, she promptly put the police district on notice regarding her desire for accommodation due to her disability and her failure to accommodate claim can go forward.
  14. All of the plaintiffs do have one basis to show that they conveyed to the police district a request for accommodation. In particular, the plaintiffs argue that their placement on light-duty and/or sick leave was itself an accommodation from the police district. Therefore, since this accommodation was already in effect and accepted by plaintiffs, plaintiff were not required to request further accommodations because an employer’s obligation to participate in the interactive accommodation process is a continuing one.
  15. The police district granted each of the plaintiff an initial accommodation by placing them on either sick leave or on light-duty. Those changes to their responsibilities are the definition of a reasonable accommodation under the ADA.
  16. The police district had to know plaintiffs disabilities in order to grant these initial accommodations, and plaintiffs made their desire for those accommodation clear by accepting the offer of the job role modifications. Accordingly, plaintiff conveyed that they were seeking assistance from the police district in the form of accommodations. Since the police district was both aware of plaintiffs disabilities and their desire for relief as a result of these initial accommodations, these actions sufficiently constitute a request for accommodation.
  17. Once an employee requests an accommodation, the interactive process of the ADA and the Rehabilitation Act begins.
  18. The interactive process provides a flexible give-and-take between employer and employee so that they together can determine what accommodations would enable the employee to continue working.
  19. An employer’s duty to accommodate is a continuing duty that is not exhausted by one effort.
  20. In a footnote, the court noted that the ADA defines an accommodation as any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities, 29 C.F.R. §1630.2181185203207(o).
  21. It is reasonable to conclude that the police district was aware the initial accommodation to the plaintiff were failing and that further accommodations were needed for the following reasons: 1) plaintiff were all placed on limited duty or sick leave due to their disabilities that left them unable to fulfill the duties of an active duty officer without accommodations; and 2) the police district sought to terminate the initial accommodations after 172 days pursuant to the forced retirement policy precisely because they could no longer fulfill the duties of an active police officer.
  22. The police district knew that plaintiff could not resume their prior active duty officer roles due to their disabilities. So by terminating the initial accommodation, they knew plaintiff would be forced out of the police district. Based on that, it can be reasonably inferred that the police district was reasonably aware that further accommodations would be needed for the plaintiff to continue their employment.
  23. Plaintiffs are not required to make new and additional request for accommodations given that the interactive process was already ongoing and the police district was reasonably aware that the initial accommodation was failing because they chose to terminate them. Accordingly, the responsibility of plaintiffs to request accommodations is excused.

 

VIII

Otherwise Qualified/Qualified

 

  1. A qualified individual is one whom with or without reasonable accommodation can perform the essential functions of the employment position that such individual holds or desires, 42 U.S.C. §12111182186204208(8).
  2. The inclusion of the phrase “or desires,” within the statutory definition broadens the term to encompass employees seeking reassignment to a vacant position if they can with or without reasonable accommodation perform the essential functions of the employment position for which they are seeking reassignment.
  3. The determination of qualified/otherwise qualified examines the plaintiff’s capacity to perform the essential functions of her job with or without reasonable accommodations at the time of the denial of accommodations.
  4. A determination that a plaintiff is not a qualified/otherwise qualified individual is rare on a motion to dismiss because figuring out whether the person is qualified or unqualified involves determining a job’s essential functions, which is typically a factual issue to be determined by a jury.
  5. Plaintiff properly alleged they were qualified/otherwise qualified individuals because the amended complaint contains pleadings that they could perform the essential elements of either their current position with reasonable accommodation or that of a job obtained by way of reassignment to a vacant position.
  6. It is sufficient to allege that the ability to perform the essential functions of any position only comes from their claim for relief since this is a motion to dismiss.
  7. The essential duties of an employee’s position are questions of fact that are not required to be alleged with particularity. Also, nothing in the amended complaint states that plaintiffs were unable to perform certain duties essential for their role as police officers.
  8. The answer to all of this may be different on summary judgment, but for purposes of a motion to dismiss plaintiff adequately alleged that they could perform the essential functions of their positions by stating they could do so job restructuring or extended leave.
  9. Plaintiffs also adequately alleged that they could perform the essential functions of other vacant government position with reasonable accommodations.
  10. It is sufficient to allege that with or without reasonable accommodations, they could perform the essential functions of the employment position for which they were seeking reassignment to.
  11. The amended complaint contains an assertion for each plaintiff that defendants have vacant positions available for which each plaintiff was qualified for during the relevant period.
  12. The police district has the obligation to assist with job reassignment for plaintiffs as part of the interactive accommodation process.
  13. Under the interactive process, if a reasonable accommodation turns out to be ineffective and if there is no alternative accommodation, then the employer must attempt to reassign the employee to a vacant position for which he or she is qualified unless doing so constitutes an undue hardship.
  14. Plaintiffs have plausibly alleged that reassignment was required. From the allegations in the complaint, it is clear that the only remaining accommodation was a job transfer. So, the police district was obligated to assist plaintiffs in obtaining those transfers because employers have an obligation to help employees identify appropriate job vacancies since plaintiff can hardly be expected to hire detective to look for vacancies.

 

IX

The Reasonableness of Accommodations Requested Is an Appropriate on a Motion to Dismiss

 

  1. Whether an accommodation is reasonable is a question of fact inappropriate for resolution on a motion to dismiss.
  2. With one distinguishable exception, all of the cases cited by the defendant concerning a determination that the requested accommodation was not reasonable occurred after discovery at the summary judgment phase.
  3. The police district was likely required as the plaintiff’s employer to investigate reassignment as a possible reasonable accommodation.

 

X

Miscellaneous Matters

 

  1. Pappas also made a claim that unlawful medical inquiries were made, but the court threw that out saying that the medical inquiries were narrowly focused on job related issues.
  2. The court also held that the chief of police in his official capacity was a proper defendant because the plaintiff was seeking injunctive relief and not monetary damages.
  3. It is in the interest of justice to grant plaintiffs request for leave to amend, court granted 30 days, their complaint in light of the opinion.

 

XI

Thoughts/Takeaways

 

  1. Vicarious exhaustion is simply not something you see very often. On the plaintiff side, it is a really risky approach. From my read of ADA cases over the years, it is more likely to fail than not.
  2. Statute of limitations are all over the place. The District of Columbia is not the only one that opted for their nondiscrimination statute. Virginia has done the same. Each of those statute of limitations are only one year. Most states do go with the personal injury statute of limitations, which is longer (two or three years generally). However, not all states do. Missing a statute of limitation is one of those legal malpractice issues. So, be sure thorough legal research is done on the applicable statute of limitations claim before taking on the case if you are on the plaintiff side. On the defense side, you might be able to knock out the claim early because of the failure of the plaintiff’s attorney to do that research. Bottom line don’t assume that every state goes with the personal injury statute of limitations even though the vast majority do.
  3. 504 does not require exhaustion for non-federal employees. That lack of exhaustion requirement can be good news for plaintiffs, but it also means plaintiffs have to carefully watch the statute of limitations. I see this all the time with respect to questions dealing with whether to pursue an U.S. Department of Education Office of Civil Rights claim on behalf of someone in higher education. It can take some time for the U.S. Department of Education Office of Civil Rights or the Department of Justice to investigate those claims. In the meantime, the statute of limitations is still running.
  4. Magic words are not required for reasonable accommodation requests. The key is whether the employer has been given enough information so that the employer can be said to know about the disability and the desire for an accommodation.
  5. Arguing that making a reasonable accommodation request was futile is an argument unlikely to work in most cases.
  6. Automatic termination policies without investigating whether the person can do the essential functions of the job with or without reasonable accommodations are a lousy idea.
  7. If someone is saying they can return to work at a later date certain, consider that a request for reasonable accommodations.
  8. Interactive process is a continuing obligation on the part of the employer absent the employee blowing it up first.
  9. Acceptance of sick leave or light duty may activate the interactive process on the part of the employer.
  10. An employer’s duty to accommodate is a continuing duty not exhausted by one effort.
  11. As we have discussed previously, reassignment is a real hot issue with some court saying the employer have to mandatory reassign people that are no longer qualified to do their current jobs. Other court saying that competitive bidding is certainly appropriate. This court strikes a middle ground saying that the employer has an obligation to help the employee find suitable other positions. The decision is a bit confusing on this point. It also says that the employer must attempt to reassign the employee to a vacant position. Ultimately, the United States Supreme Court is going to have to figure this one out. My guess is that they are going to go with the competitive bidding approach of the 11th circuit over the mandatory reassignment approach of the Seventh Circuit, but one never knows.
  12. Otherwise qualified/qualified is a factually intensive question more appropriate for resolution on summary judgment than on a motion to dismiss.
  13. Any disability related inquiries of current employees need to be job related.
  14. If you are on the plaintiff side and getting notes from a healthcare professional, make sure they discuss possible accommodations whenever possible to do so.
Colonel Johnny (my hearing dog while I practice virtually).

Today’s blog entry explores the following situation. A defendant was charged with multiple counts of aggravated criminal sexual abuse. The victim, R.L., of that abuse suffered posttraumatic stress disorder (PTSD), as a result. She testified at trial with a service dog. The defendant gets convicted and appeals saying that the trial court erred violated his rights by allowing R.L. to testify with her dog under the ADA. Case is People of the State of Illinois v. Tapley18067193203205, decided by the Illinois Court of Appeals for the second district on December 18, 2020. As usual, the blog entry is divided into categories and they are: additional facts; court’s reasoning affirming the use of a service dog (ADA); court’s reasoning affirming the use of a service dog (a fair trial/confrontation clause); and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Additional Facts

 

In addition to the facts noted above, additional relevant facts include:

 

  1. On November 28, 2017, Illinois filed a motion in limine to allow R.L. to testify in the presence of her facility dog. Illinois alleged that R.L. suffered from PTSD as a result of defendant’s abuse and that she had a facility dog that accompanied her everywhere. Illinois alleged that she had previously suffered from PTSD episodes affecting her ability to go to school and communicate effectively but that the use of the facility dog has enabled her to attend school again. Illinois alleged that it had reason to believe that she might suffer a PTSD episode while testifying that would prevent her from reasonably communicating with the jury. Illinois further alleged the use of the facility dog and/or closed-circuit television would help ensure that she would not have a PTSD episode during the trial and would limit any further emotional distress to her.
  2. The term facility dog appears in section 106B-10 of the Code of Civil Procedure of 1963 for the state of Illinois, 725 ILCS 5/106B-1018168194204206, while the Code of Federal Regulations implementing the ADA, 28 C.F.R. §35.104, refers to a service animal, specifically a dog. The trial court found that her dog qualified as a service dog under the ADA.
  3. At a hearing on March 15, 2018 defense counsel stated that he learned that Illinois was planning to have R.L. testify with the dog present under the ADA. In response, the trial court stated, “there are very few things that can be done from the court’s perspective pertaining to that. What I mean by that is if in fact there is a disability, you can’t even ask what the disability is. The ADA does allow a service dog, and I think that’s what you’re getting to. She has made that request to court administration.”
  4. At the beginning of the April 5, 2018 motion in limine hearing the trial court stated that if it found out that it was an actual service dog, not a comfort dog, the court was going to have to make a reasonable accommodation. The trial court administrator and disability coordinator testified at that hearing that his responsibilities included monitoring access to the courthouse for people with disabilities. Further, that R.L.’s mother had contacted him about three months prior requesting that a service animal be present for her daughter’s testimony.
  5. According to the Illinois Atty. Gen.’s Manual for Court Disability Coordinators, the trial court administrator/disability coordinator is permitted to ask only two questions, those being whether the animal was required for a disability and what work or tasks it performs for the individual. Those questions were answered in the affirmative because the dog assisted in coping with a mental illness. In court, the trial court administrator/disability coordinator admitted that in situations where it was not apparent what the nexus was between the disability and the service animal, the Illinois Atty. Gen. Manual allowed him to ask what the functional limitation was but that he did not do so because the nexus between the dog and the disability was readily apparent to him.
  6. At a hearing on August 22, 2018, the trial court stated, “I reviewed the matters and received the information from our coordinator, and the court will allow a service dog to be present.” It stated that the dog should be brought in on August 24 to determine a reasonable accommodation. In response to R.L.’s mother request that the defendant not be present when the dog is brought in for those purposes, the trial court responded that it just needed the dog to come in with someone who could control the dog. R.L.’s mother said that the dog and R.L. were a team and had not been separated since becoming a team and that only R.L. could legally take the dog out in public. After some back and forth, the court winds up concluding that R.L. has a disability covered by the ADA and that the dog is a service dog.
  7. R.L. and the dog were present in the courtroom on August 24, 2019. The trial court stated that the gate on the witness stand that would be closed when she testified so that the jury would not be able to see the dog when it sat next to her. The trial court stated that the dog should not go on her lap. In response to that, R.L. stated that getting on her lap was one of the dog’s commands when she was anxious. She stated that the dog was likely to go up on her lap at least once even though she was not going to tell her to do that. Instead, that was one of the commands that she has and that the dog was trained to do.
  8. The trial court stated that it understood but that they were going to do the best they could. It stated that she could be seated with the dog for a few minutes to relax before the jury was brought in and before questioning started. It also stated that when she completed her testimony, the jury would leave the courtroom before she and the dog got up. The record indicates that the dog did sit on her lap one time while they were discussing the issue. Illinois described the dog as a medium-sized dog and stated that it did not think they could avoid the jury noticing the dog. Illinois also stated that it did not think that there was any way to get around the dog getting on her lap if that was part of the dog’s work in assisting her with her disability. The trial court repeated that it understood and said they were going to try to minimize it as much as possible.
  9. Testimony in the defendant’s jury trial began on September 18, 2018. Defense counsel did not object to the trial court’s jury instruction pertaining to the service dog, which stated in part: “ladies and gentlemen of the jury, I want to instruct you at this time that the witness has a service dog with her while she testifies. You are not to draw any inference in favor or against either side because of the dog’s presence. And the focus of your attention should be on the testimony of the witness. The presence of the service dog in the courtroom shall not be considered in any way in the jury’s deliberations or verdicts.”
  10. During cross-examination, the following exchange occurred: “[defense attorney]: Judge, I would ask that the dog be placed on the-[the court]: if-if-if the dog could go down, that would be fine so that the dog doesn’t stand up and block your face. Okay? [The witness]: okay [the court]: you may proceed.”
  11. The jury found defendant guilty of counts I through III and not guilty of Count IV. On October 9, 2018, defendant filed a motion for new trial arguing among other things that allowing the dog to be present at trial was prejudicial because it evoked sympathy and pity for R.L. and misled the jury to believe that she suffered from a disability he caused. The trial court denied that motion.
  12. During the sentencing hearing, testimony occurred noting that it took R.L. 18 months to obtain a dog because the dog’s training had to be tailored to R.L. R.L. received the dog in 2017 and it helped her function in society by alleviating the symptoms of her PTSD. For example, if she started disassociating while walking down the street, the dog was trained to detect that and to take action to redirect her. The costs of the dog and its care were considered medical expenses and her family had been compensated for the majority of the expenses through the crime victim compensation fund.
  13. The defendant appealed claiming that: 1) there was no showing that the dog was required under the ADA; 2) the ruling denied him a fair trial and impacted his confrontation rights; and 3) allowing the complaining witness to testify with the dog fundamentally altered the nature of the trial

 

II

Court’s Reasoning Affirming the Use of the Service Dog (ADA)

 

  1. The issue of the witness using a service dog under the ADA appears to be one of first impression in Illinois and maybe anywhere as the defendant did not cite, nor did the court’s research reveal, a case from another jurisdiction specifically addressing the issue.
  2. 42 U.S.C. §1213218269195205207, title II of the ADA, prohibit a public entity from discriminating against qualified individuals with disabilities.
  3. PTSD is listed as an impairment that substantially limits brain function in 28 C.F.R. §35.10818370196206208(d)(2)(iii)(K).
  4. As readers of this blog know, a service animal is any dog individually trained to do work or perform tasks for the benefit of an individual with a disability, including physical, sensory, psychiatric, intellectual, or other mental disability. Examples of work or tasks performed by service animals include helping persons with psychiatric and neurological disability by preventing or interrupting impulsive or destructive behaviors. 28 C.F.R. §35.10418471197207209.
  5. A public entity cannot ask about the nature or extent of a person’s disability, but they can make two inquiries to determine whether an animal qualifies as a service animal. In particular, they can ask if the animal was required because of a disability and what work or tasks animal has been trained to perform. A public entity cannot require documentation, such as proof that the animal has been certified, trained, or license as a service animal. The two questions get asked when it is not readily apparent that the animal is trained to do work or perform tasks when individual with a disability. 28 C.F.R. §35.13618572198208210(f).
  6. Allowing R.L. to testify with a service dog was within the trial court’s discretion under Illinois Rules of Evidence 611. Illinois Rules of Evidence 611 allows for the court to exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to: 1) make the interrogation and presentation effective for the ascertainment of the truth; 2) avoid needless consumption of time; and 3) protect witnesses from harassment or undue embarrassment. An abuse of discretion occurs only where the court’s ruling is fanciful, arbitrary, or unreasonable, which is not the case here.
  7. One of the purposes of the ADA is to prohibit a public entity from discriminating against a person with a disability because of his or her disability. So, the focus needs to be on whether the discrimination has occurred and not whether the individual meets the definition of a disability. In most cases, the question of whether an individual meets the definition of disability does not demand extensive analysis. 28 C.F.R. §35.10118673199209211(b)
  8. The cases cited by the defendant simply don’t wash because they concerned the situation where an individual with a disability brought suit against an entity for allegedly violating the right to have their service animals present. Whereas here, R.L. was allowed to use her service dog as requested.
  9. The ADA does not provide protection for individuals without disabilities.

 

III

Court’s Reasoning Affirming the Use of the Service Dog (Fair Trial/Confrontation Clause).

 

  1. If it is not readily apparent that a service animal is acting as a service animal, then those two inquiries can be asked.
  2. After reviewing the trial court administrator/disability coordinator’s written decision, the trial court was satisfied that there was a disability covered by the ADA and that the dog was a service dog.
  3. Defendant was informed that R.L. had requested the use of a dog for a disability and that the trial court granted the request.
  4. It doesn’t matter that there was no showing that the handler of the service dog had a disability because a public entity is prohibited from asking about the nature or extent of a person’s disability and the defendant also would not be entitled to that information.
  5. Ample evidence in the record exists that R.L. claimed to have PTSD. In fact, defense counsel admitted as much in a motion they filed.
  6. Defendant’s argument that there was no evidence that the dog was a service dog does not apply for several reasons: 1) the final regulations state that a public entity may ask only the two questions to determine whether an animal qualifies as a service animal; and 2) a public entity cannot require documentation, such as proof that the animal has been certified, trained or licensed as a service animal. So if the trial court was not allowed to require proof that the dog was trained, it follows that the defendant was likewise not entitled to such proof.
  7. At the sentencing hearing, at which the witnesses were subject to cross-examination, there was testimony that the dog had been prescribed by her pediatrician, it took 18 months to obtain the dog because it had to be trained for her needs, and that the family had been compensated for the majority of the expenses through the crime victim compensation fund because the cost of the dog and its care were considered medical expenses.
  8. It was adequately conveyed to the defendant that getting on R.L.’s lap was one of the commands that the dog was trained to do when R.L. was anxious. That very point was reiterated by Illinois as being part of the dog’s work in assisting her with her disability.
  9. Defendant had a full trial in front of a jury and has not cited case law or elaborated and how the dog altered the nature of the trial. Accordingly, that issue is forfeited for review.
  10. All of the courts examining a challenge to the use of a comfort dog in a courtroom have concluded that the dog’s presence is not inherently prejudicial.
  11. In a case out of Washington, that court said that whatever subconscious bias the jury may have by seeing the dog was cured by the trial court’s limiting instruction cautioning the jury not to make any assumptions or draw any conclusion based upon the presence of the dog. Similarly, in a case out of New York the court noted that there was no proof that sympathy was significantly greater than the normal human response to a child’s testimony about his or her sexual abuse at the hands of an adult. There also, the court instructed the jury not to allow sympathy to enter into its considerations, especially with respect to an outside factor like a facility dog.
  12. R.L. allegedly suffered from the PTSD in the first place because of defendant’s actions.
  13. The Supreme Court of Illinois Policy on Access for Persons with Disabilities states that the court will honor the choice of the individual, unless it demonstrate that another equally effective accommodation is available, or that the requested accommodation would result in a fundamental alteration of court activity or undue financial and administrative burdens.
  14. The trial court had a gate installed on the witness box to obstruct the jury’s view of the dog and held a separate hearing with the dog present so that the party could view how the dog would be seated next to R.L. during the trial. Illinois had disclosed that the dog would probably get on her lap while she testified because it was one of the dog’s commands and the trial court stated that should be minimized as much as possible. The trial court further stated that R.L. would be seated with the dog before the jury was brought in and that, after her testimony, the jury would leave the courtroom before she and the dog got up.
  15. Before she testified, the trial court instructed the jury in detail regarding the dog, stating: “ladies and gentlemen of the jury, I want to instruct you at this time that the witness has a service dog with her while she testifies. You are not to draw any inference in favor or against either side because of the dog’s presence. The focus of your attention should be on the testimony of the witness. Presence of the service dog in the courtroom shall not be considered in any way in the jury’s deliberations or verdicts.”
  16. A jury is presumed to follow a trial court’s jury instructions. Accordingly, for that and the other reasons noted in this blog entry the trial court adequately compensated for any potential sympathy generated by the dog’s presence so that the defendant’s right to a fair trial was not violated.
  17. While it is true that the sixth amendment give criminal defendants the right to be confronted with the witnesses against him, there was no issue of the right to confrontation here. She testified in clear view of the defendant and was subject to an extensive cross-examination by defense counsel. The dog got on her lap once, blocking her face, but as soon it defense counsel asked that the dog be placed on the ground, the trial court told her to do so and she immediately complied. And counsel with an able to resume it cross-examination thereafter.

 

IV

Thoughts/Takeaways

 

  1. You can expect to see other cases like this as time goes on. The way the trial court handled the situation will undoubtedly serve as a model for how other courts should deal with the situation where a witness claims to have a service dog.
  2. As we have discussed previously, here18774200210212, the title II and title III regulations do not limit an entity to two questions when it comes to trying to figure out whether the animal is a service dog. Rather, they are limited to two inquiries. Inquiries is much broader than two questions. True, the DOJ frequently asked questions document refers to only two questions. However, the regulation refers to two inquiries. Under Kisor v. Wilkie, which we discussed here18875201211213, regulations are going to trump any guidances. That said, any additional questions focusing on the two inquiries would have to be very narrowly focused for them to be permissible.
  3. Lots of confusion with terminology in this case. For example, the case talks about comfort dogs, assistance animals, facility dogs, and service animals. They all mean different things, the terms come from a variety of different places, and the terms are not necessarily consistent with how the ADA deals with service animals. Only a service animal gets protection under title II of the ADA. Also, the title II term is “reasonable modification,” though it means the same thing as title I’s “reasonable accommodation.”
  4. There was no debate in this case whether R.L. was qualified as she obviously met the essential eligibility requirements of being able to testify in court.
  5. In most cases, whether a person has a disability does not demand extensive analysis.
  6. The ADA does not provide protection for individuals that do not have disabilities.
  7. The Supreme Court of Illinois Policy on Access for Persons with Disabilities stating that the court will honor the choice of the individual unless the court demonstrates another equally effective accommodation is available or that the requested accommodation will result in a fundamental alteration of court activity or in undue financial or administrative burden is an interesting statement. That statement goes beyond what title II of the ADA and its final implementing regulations require. It is an accurate statement of what a title II entity would have to do with respect to their effective communication obligations, but effective communication is not what was involved here, not really anyway. There is absolutely no reason why a State can’t go further than what title II requires because title II just sets a floor.
  8. A limiting instruction whenever a person testifies with a service animal is an excellent idea. The way the trial court and its trial court administrator/disability coordinator went about the whole process was first rate.
  9. Another thing that the trial court did nicely is separating out the role of the administrator from the judge with respect to granting the accommodations. The two roles are very separate, though as we saw here, the trial court administrator/disability coordinator and the judge do wind up working together. I have seen situations where everything is sent to the judge and the trial court administrator/disability coordinator is eliminated with the theory being that the judge is then protected by way of judicial immunity. However, deciding on accommodations is not a judicial act.
  10. What happens if the court had messed this whole accommodation process up? Could they have been sued for disability discrimination in their official capacity? For that answer, take a look at this case we discussed previously18976202212214 in our blog.
  11. Whether it is readily apparent than a dog is a service animal can be a subjective question. In this case, it was pretty obvious to the trial court administrator/disability coordinator that the animal was a service animal but not everybody would see it that way necessarily. If they don’t, they can make those two inquiries. If it is blatantly obvious that the dog is a service animal, then those inquiries should not be made. In the case of a close call, if the two inquiries are made and any follow-up questions narrowly focused, hard to believe that liability would follow for asking follow-up questions narrowly focusing on the two inquiries even though it might be debatable as to whether the need for the service animal is readily apparent
  12. Certainly, that the service dog was necessary because of the conduct of the defendant factored into the equity of the situation. However, how a person comes to their disability is completely irrelevant to whether they have a disability that gets accommodated under the ADA.
  13. I can’t see how an appeal to the Illinois Supreme Court would go anywhere.
  14. In case you are wondering where the Second District of the Illinois Appellate Court is, it is the area immediately north and west of Cook County to the Illinois state line (Cook County is where Chicago is and some of its inner suburbs).

First off, I want to welcome everyone back from the Christmas and New Year weeks. I hope everybody had a safe and happy week and continues to be safe. Today’s blog entry is something that came out in mid-December from the EEOC. I have not blogged on it yet because there were other things that I wanted to get off my blog pipeline. Also, labor and employment lawyers immediately jumped on this and have been writing about it or blogging about it or I am sure podcasting about it. So, there is plenty of information out there about what the EEOC did with respect to the new part of their guidance dealing with the ADA and Covid-19 vaccinations. Even so, since I have blogged on EEOC updates to this document previously, I thought my readers would appreciate seeing any thoughts I might have on the subject as well. So, what we have here is the EEOC guidance reproduced verbatim with any thoughts or comments I have underneath each section. I realize that the format of this first paragraph appears strange, but fixing it seems to be beyond my technological expertise. lol

 

K. Vaccinations

The availability of COVID-19 vaccinations may raise questions about the applicablilty of various equal employment opportunity (EEO) laws, including the ADA and the Rehabilitation Act, GINA, and Title VII, including the Pregnancy Discrimination Act (see Section J, EEO rights relating to pregnancy95183191197198198).  The EEO laws do not interfere with or prevent employers from following CDC or other federal, state, and local public health authorities’ guidelines and suggestions.

ADA and Vaccinations

K.1. For any COVID-19 vaccine that has been approved or authorized by the Food and Drug Administration (FDA), is the administration of a COVID-19 vaccine to an employee by an employer (or by a third party with whom the employer contracts to administer a vaccine) a “medical examination” for purposes of the ADA? (12/16/20)

No.  The vaccination itself is not a medical examination.  As the Commission explained in guidance on disability-related inquiries and medical examinations96184192198199199, a medical examination is “a procedure or test usually given by a health care professional or in a medical setting that seeks information about an individual’s physical or mental impairments or health.”  Examples include “vision tests; blood, urine, and breath analyses; blood pressure screening and cholesterol testing; and diagnostic procedures, such as x-rays, CAT scans, and MRIs.”  If a vaccine is administered to an employee by an employer for protection against contracting COVID-19, the employer is not seeking information about an individual’s impairments or current health status and, therefore, it is not a medical examination.

Although the administration of a vaccination is not a medical examination, pre-screening vaccination questions may implicate the ADA’s provision on disability-related inquiries, which are inquiries likely to elicit information about a disability.  If the employer administers the vaccine, it must show that such pre-screening questions it asks employees are “job-related and consistent with business necessity.”  See Question K.297185193199200200.

My thoughts: With respect to paragraph one of this §, the first ¶ makes a great deal of sense. With respect to the second ¶, that gets a little complicated. In particular, the EEOC quite correctly says that if an employer administers the vaccine, it must show that such prescreening questions asked of employees are job-related and consistent with business necessity. That makes sense. However, the implication is that if the employer is not administering the vaccine anything goes. Any such implication isn’t exactly right because the ADA is a nondelegable duty as we discussed here186194200201201.

K.2. According to the CDC, health care providers should ask certain questions before administering a vaccine to ensure that there is no medical reason that would prevent the person from receiving the vaccination. If the employer requires an employee to receive the vaccination from the employer (or a third party with whom the employer contracts to administer a vaccine) and asks these screening questions, are these questions subject to the ADA standards for disability-related inquiries? (12/16/20)

Yes.  Pre-vaccination medical screening questions are likely to elicit information about a disability.  This means that such questions, if asked by the employer or a contractor on the employer’s behalf, are “disability-related” under the ADA.  Thus, if the employer requires an employee to receive the vaccination, administered by the employer, the employer must show that these disability-related screening inquiries are “job-related and consistent with business necessity.”  To meet this standard, an employer would need to have a reasonable belief, based on objective evidence, that an employee who does not answer the questions and, therefore, does not receive a vaccination, will pose a direct threat to the health or safety of her or himself or others.  See Question K.5.98187195201202202 below for a discussion of direct threat.

By contrast, there are two circumstances in which disability-related screening questions can be asked without needing to satisfy the “job-related and consistent with business necessity” requirement.  First, if an employer has offered a vaccination to employees on a voluntary basis (i.e. employees choose whether to be vaccinated), the ADA requires that the employee’s decision to answer pre-screening, disability-related questions also must be voluntary.  42 U.S.C. 12112(d)(4)(B)9918819620220320329 C.F.R. 1630.14(d)100189197203204204.  If an employee chooses not to answer these questions, the employer may decline to administer the vaccine but may not retaliate against, intimidate, or threaten the employee for refusing to answer any questions.  Second, if an employee receives an employer-required vaccination from a third party that does not have a contract with the employer, such as a pharmacy or other health care provider, the ADA “job-related and consistent with business necessity” restrictions on disability-related inquiries would not apply to the pre-vaccination medical screening questions.

The ADA requires employers to keep any employee medical information obtained in the course of the vaccination program confidential101190198204205205.

My thoughts: As I was going about writing up this blog, I had not looked at all of the questions beforehand. Rather, I looked at each question individually and then wrote my thoughts. You can see from the EEOC answer to this question that the implication of anything goes with respect to the vaccine if not administered by an employer was an implication that the EEOC did not intend. Otherwise, the EEOC responses to this question are right on the money.

 

K.3. Is asking or requiring an employee to show proof of receipt of a COVID-19 vaccination a disability-related inquiry? (12/16/20)

No.  There are many reasons that may explain why an employee has not been vaccinated, which may or may not be disability-related.  Simply requesting proof of receipt of a COVID-19 vaccination is not likely to elicit information about a disability and, therefore, is not a disability-related inquiry.  However, subsequent employer questions, such as asking why an individual did not receive a vaccination, may elicit information about a disability and would be subject to the pertinent ADA standard that they be “job-related and consistent with business necessity.”  If an employer requires employees to provide proof that they have received a COVID-19 vaccination from a pharmacy or their own health care provider, the employer may want to warn the employee not to provide any medical information as part of the proof in order to avoid implicating the ADA.

My thoughts: Nothing to add here.

 

ADA and Title VII Issues Regarding Mandatory Vaccinations

K.4. Where can employers learn more about Emergency Use Authorizations (EUA) of COVID-19 vaccines? (12/16/20)

Some COVID-19 vaccines may only be available to the public for the foreseeable future under EUA granted by the FDA, which is different than approval under FDA vaccine licensure. The FDA has an obligation102191199205206206 to:

[E]nsure that recipients of the vaccine under an EUA are informed, to the extent practicable under the applicable circumstances, that FDA has authorized the emergency use of the vaccine, of the known and potential benefits and risks, the extent to which such benefits and risks are unknown, that they have the option to accept or refuse the vaccine, and of any available alternatives to the product.

The FDA says that this information is typically conveyed in a patient fact sheet that is provided at the time of the vaccine administration and that it posts the fact sheets on its website.  More information about EUA vaccines is available on the FDA’s EUA page103192200206207207.

My thoughts: Nothing to add here.

K.5. If an employer requires vaccinations when they are available, how should it respond to an employee who indicates that he or she is unable to receive a COVID-19 vaccination because of a disability? (12/16/20)

The ADA allows an employer to have a qualification standard104193201207208208 that includes “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.”  However, if a safety-based qualification standard, such as a vaccination requirement, screens out or tends to screen out an individual with a disability, the employer must show that an unvaccinated employee would pose a direct threat due to a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”  29 C.F.R. 1630.2(r)105194202208209209.  Employers should conduct an individualized assessment of four factors in determining whether a direct threat exists: the duration of the risk; the nature and severity of the potential harm; the likelihood that the potential harm will occur; and the imminence of the potential harm.  A conclusion that there is a direct threat would include a determination that an unvaccinated individual will expose others to the virus at the worksite.  If an employer determines that an individual who cannot be vaccinated due to disability poses a direct threat at the worksite, the employer cannot exclude the employee from the workplace—or take any other action—unless there is no way to provide a reasonable accommodation (absent undue hardship106195203209210210) that would eliminate or reduce this risk so the unvaccinated employee does not pose a direct threat.

If there is a direct threat that cannot be reduced to an acceptable level, the employer can exclude107 the employee from physically entering the workplace, but this does not mean the employer may automatically terminate the worker.  Employers will need to determine if any other rights apply under the EEO laws or other federal, state, and local authorities.  For example, if an employer excludes an employee based on an inability to accommodate a request to be exempt from a vaccination requirement, the employee may be entitled to accommodations such as performing the current position remotely. This is the same step that employers take when physically excluding employees from a worksite due to a current COVID-19 diagnosis or symptoms; some workers may be entitled to telework or, if not, may be eligible to take leave under the Families First Coronavirus Response Act, under the FMLA, or under the employer’s policies. See also Section J, EEO rights relating to pregnancy108196204210211211.

Managers and supervisors responsible for communicating with employees about compliance with the employer’s vaccination requirement should know how to recognize an accommodation request from an employee with a disability and know to whom the request should be referred for consideration.  Employers and employees should engage in a flexible, interactive process to identify workplace accommodation options that do not constitute an undue hardship (significant difficulty or expense).  This process should include determining whether it is necessary to obtain supporting documentation about the employee’s disability and considering the possible options for accommodation given the nature of the workforce and the employee’s position.  The prevalence in the workplace of employees who already have received a COVID-19 vaccination and the amount of contact with others, whose vaccination status could be unknown, may impact the undue hardship consideration.  In discussing accommodation requests, employers and employees also may find it helpful to consult the Job Accommodation Network (JAN) website as a resource for different types of accommodations, 109www.askjan.org197205211212212.  JAN’s materials specific to COVID-19 are at 110https://askjan.org/topics/COVID-19.cfm198206212213213.

Employers may rely on CDC recommendations when deciding whether an effective accommodation that would not pose an undue hardship is available, but as explained further in Question K.7.111199207213214214, there may be situations where an accommodation is not possible.  When an employer makes this decision, the facts about particular job duties and workplaces may be relevant.  Employers also should consult applicable Occupational Safety and Health Administration standards and guidance.  Employers can find OSHA COVID-specific resources at: www.osha.gov/SLTC/covid-19/112200208214215215.

Managers and supervisors are reminded that it is unlawful to disclose that an employee is receiving a reasonable accommodation or retaliate against an employee for requesting an accommodation113201209215216216.

My thoughts:

With respect to ¶ 1, I do not have any issues with respect to what the EEOC says. I appreciate how the EEOC explains what a significant risk of substantial harm is. Their explanation is consistent with their own regulations and with Chevron v. Echazabal, which we discussed many times previously, such as here202210216217217. The one thing that I would add is that under Chevron v. Echazabal, the direct threat determination must be based upon a reasonable medical judgment relying on the most current medical knowledge and/or the best available objective evidence.

With respect to ¶ 2, the interactive process is so important. We discussed the do’s and don’ts of the interactive process here203211217218218.

With respect to ¶ 3, the interactive process concerns noted immediately above also apply here. Also, be careful not to request excessive documentation. I agree with the recommendation to contact the Job Accommodation Network204212218219219 when necessary.

With respect to ¶ 4, employers may want to have their own infectious disease specialist on retainer as the CDC guidances and recommendations can be extraordinarily confusing, if not contradictory even, when taken as a whole. Certainly, the CDC guidances and recommendations have to be strongly considered. As the EEOC says, don’t forget about OSHA either.

With respect to ¶ 5, don’t forget that the ADA at 42 U.S.C. §12203205213219220220, has prohibitions against interference as well as for retaliation.

K.6. If an employer requires vaccinations when they are available, how should it respond to an employee who indicates that he or she is unable to receive a COVID-19 vaccination because of a sincerely held religious practice or belief? (12/16/20)

Once an employer is on notice that an employee’s sincerely held religious belief, practice, or observance prevents the employee from receiving the vaccination, the employer must provide a reasonable accommodation for the religious belief, practice, or observance unless it would pose an undue hardship under Title VII of the Civil Rights Act.  Courts have defined “undue hardship” under Title VII114206214220221221 as having more than a de minimis cost or burden on the employer. EEOC guidance explains that because the definition of religion is broad and protects beliefs, practices, and observances with which the employer may be unfamiliar, the employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief.  If, however, an employee requests a religious accommodation, and an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance, the employer would be justified in requesting additional supporting information.

My thoughts: This is an example of how different areas of the law may use the same terms to mean very different things. As the EEOC discusses in this §, undue hardship and reasonable accommodation have a very different meaning under title VII with respect to accommodating religious practices or beliefs than they do under the ADA. Whether the distinction of undue hardship and reasonable accommodation should continue to have such a different meaning than it does under the ADA, is a question currently pending in the courts (if memory serves, there is such a case pending in the United States Supreme Court at the moment). Very interested to see whether the considerable difference between the ADA and title VII with respect to undue hardship and reasonable accommodation continues.

K.7. What happens if an employer cannot exempt or provide a reasonable accommodation to an employee who cannot comply with a mandatory vaccine policy because of a disability or sincerely held religious practice or belief? (12/16/20)

If an employee cannot get vaccinated for COVID-19 because of a disability or sincerely held religious belief, practice, or observance, and there is no reasonable accommodation possible, then it would be lawful for the employer to exclude115207215221222222 the employee from the workplace.  This does not mean the employer may automatically terminate the worker.  Employers will need to determine if any other rights apply under the EEO laws or other federal, state, and local authorities.

My thoughts: Nothing to add.

Title II of the Genetic Information Nondiscrimination Act (GINA) and Vaccinations

K.8. Is Title II of GINA implicated when an employer administers a COVID-19 vaccine to employees or requires employees to provide proof that they have received a COVID-19 vaccination? (12/16/20)

No. Administering a COVID-19 vaccination to employees or requiring employees to provide proof that they have received a COVID-19 vaccination does not implicate Title II of GINA because it does not involve the use of genetic information to make employment decisions, or the acquisition or disclosure of “genetic information” as defined by the statute. This includes vaccinations that use messenger RNA (mRNA) technology, which will be discussed more below.  As noted in Question K.9. however, if administration of the vaccine requires pre-screening questions that ask about genetic information, the inquiries seeking genetic information, such as family members’ medical histories, may violate GINA.

Under Title II of GINA, employers may not (1) use genetic information to make decisions related to the terms, conditions, and privileges of employment, (2) acquire genetic information except in six narrow circumstances, or (3) disclose genetic information except in six narrow circumstances.

Certain COVID-19 vaccines use mRNA technology. This raises questions about genetics and, specifically, about whether such vaccines modify a recipient’s genetic makeup and, therefore, whether requiring an employee to get the vaccine as a condition of employment is an unlawful use of genetic information.  The CDC has explained that the mRNA COVID-19 vaccines “do not interact with our DNA in any way” and “mRNA never enters the nucleus of the cell, which is where our DNA (genetic material) is kept.” (See https://www.cdc.gov/coronavirus/2019-ncov/vaccines/different-vaccines/mrna.html116208216222223223 for a detailed discussion about how mRNA vaccines work).  Thus, requiring employees to get the vaccine, whether it uses mRNA technology or not, does not violate GINA’s prohibitions on using, acquiring, or disclosing genetic information.

My thoughts: Very interesting discussion and makes sense.

 

K.9. Does asking an employee the pre-vaccination screening questions before administering a COVID-19 vaccine implicate Title II of GINA? (12/16/20)

Pre-vaccination medical screening questions are likely to elicit information about disability, as discussed in Question K.2.117209217223224224, and may elicit information about genetic information, such as questions regarding the immune systems of family members.  It is not yet clear what screening checklists for contraindications will be provided with COVID-19 vaccinations.

GINA defines “genetic information” to mean:

  • Information about an individual’s genetic tests;
  • Information about the genetic tests of a family member;
  • Information about the manifestation of disease or disorder in a family member (i.e., family medical history);
  • Information about requests for, or receipt of, genetic services or the participation in clinical research that includes genetic services by the an individual or a family member of the individual; and
  • Genetic information about a fetus carried by an individual or family member or of an embryo legally held by an individual or family member using assisted reproductive technology.

29 C.F.R. § 1635.3(c).  If the pre-vaccination questions do not include any questions about genetic information (including family medical history), then asking them does not implicate GINA.  However, if the pre-vaccination questions do include questions about genetic information, then employers who want to ensure that employees have been vaccinated may want to request proof of vaccination instead of administering the vaccine themselves.

GINA does not prohibit an individual employee’s own health care provider from asking questions about genetic information, but it does prohibit an employer or a doctor working for the employer from asking questions about genetic information.  If an employer requires employees to provide proof that they have received a COVID-19 vaccination from their own health care provider, the employer may want to warn the employee not to provide genetic information as part of the proof.  As long as this warning is provided, any genetic information the employer receives in response to its request for proof of vaccination will be considered inadvertent and therefore not unlawful under GINA.  See 29 CFR 1635.8(b)(1)(i) for model language that can be used for this warning.

 

My thoughts: I don’t do a lot of GINA work. I can say that carrying out these thoughts in this § might get complicated. It is certainly good preventive law. The EEOC also points to a regulatory section containing model language that can be used for telling the employee not to provide genetic information as part of proving that they were vaccinated for Covid-19. Finally, this is yet another example of how other laws can interact and overlap with the ADA.

 

If you have teams in the football playoffs (I have the bears), good luck. The college football playoff final should be a doozy.

 

Happy new year everyone!

Usually at this time of year, my last blog entry is devoted to the greatest hits for the year. However, for this year the data points are a bit mixed up because I  moved my blog platform to the Lex Blog platform halfway through the year. So, I don’t have data for the whole year. Judging from the data I looked at for the half year, it looked like it was pretty similar to last year’s. So, that left me with wondering what should I blog on. If there has been a theme to anything for this year, it has been that the world is very much in it together. On rare occasions, I have blogged about disability rights in other countries (I distinctly remember blogging on a decision from Australia saying that deaf individuals cannot serve on juries, but for some reason I can’t seem to find that blog entry. I can report that that particular decision went to United Nations Commission on Human Rights because Australia is a signatory to the UN Convention on Disability Rights and the United Nations Commission on Human Rights told Australia to fix the problem). With respect to today’s blog entry, Scott Lissner, the ADA Coordinator of the Ohio State University sent me a link involving a case out of the highest court, the Court of Appeal, in Ontario Canada, Longueepee v. University of Waterloo and Human Rights Tribunal of Ontario found here180210190190191, that I thought was very interesting reading. So, I thought I would talk about it and then compare it to how it might work under the ADA. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning; concurrence reasoning; and how this case would play out under the ADA and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories. For ease of understanding, I use “plaintiff.’ rather than British Commonwealth term, “claimant.”

 

I

Facts

 

Plaintiff had attended another University several years before applying for admission to University of Waterloo. At the prior University he achieved grades well below the University’s minimum admission requirement for transfer students. Accepting that the plaintiff had undiagnosed and un-accommodated disabilities (posttraumatic stress disorder and a moderate brain injury), when he attended the prior University, the University of Waterloo convened an admission committee to consider his application, consisting of academic transcripts, information about his volunteer work, and reference letters even though he did not meet the minimum admission requirements and had applied late. Focusing solely on the grades at the prior University, the University of Waterloo decided that he had not demonstrated the ability to succeed at their university and was refused admission. At the Human Rights Tribunal of Ontario level, plaintiff lost. He appealed to the next Level, the Divisional Court, and won. The University then appealed to the Court of Appeals, the high court of Ontario.

 

II

Court’s Reasoning

 

§ 11 of the Ontario code provides:

11 (1) A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,

(a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or

(b) it is declared in this Act, other than in section 17, that to discriminate because of such ground is not an infringement of a right.

(2) The Tribunal or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.

 

  1. The Divisional Court, the intermediate appellate court in Ontario, referred to the three-part test in British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868 (“Grismer”), at para. 20, that applies when a requirement or standard has been shown to be prima facie The responding party must prove on a balance of probabilities that:
    • it adopted the standard for a purpose or goal that is rationally connected to the function being performed;0
    • it adopted the standard in good faith, in the belief that it is necessary for the fulfillment of the purpose or goal; and
    • the standard is reasonably necessary to accomplish its purpose or goal, in the sense that the defendant cannot accommodate persons with the characteristics of the claimant without incurring undue hardship.
  2. The Divisional Court was satisfied that the University had discharged the first two elements. The adoption of an academic standard for admission based on past academic performance as the best indicator of future academic performance is rational. It reflects the good faith belief that the standard is necessary to fulfil the purpose of admitting students who have the ability to succeed in their university studies.
  3. The Divisional Court was not satisfied, however, that the University met the third prong of the Grismer The Court noted that the Admissions Committee had professed an “accommodation dialogue”, but the dialogue was “firmly anchored to the very grades which [the Admissions Committee] implicitly, if not expressly, recognised as not being reflective of Mr. Longueépée’s abilities”: at para. 53. In the court’s view, the Admissions Committee “seem[ed] to have deflected its responsibility to evaluate Mr. Longueépée’s application as presented”: at para. 53. While it purported to consider information other than Mr. Longueépée’s grades, the explanation for its decision was bereft of any evaluation of that information: at paras. 54-56. The University did not have to presume that Mr. Longueépée would be successful in university merely because his previous grades were unaccommodated, but it did have to establish that it accommodated him in the admissions process to the point of undue hardship: at para. 55.
  4. The Divisional Court concluded that because the University acknowledged that it could not interpret Mr. Longueépée’s grades free from their discriminatory effect, it either had to: (1) assess Mr. Longueépée’s candidacy without recourse to his marks; or (2) establish that it would result in undue hardship for it to do so: at para. 57. It failed to do either of these things: at para. 58. The University did not consider an approach that placed no reliance on prior marks, and so it could not now establish that no such approaches are available or would cause it undue hardship: at para. 60.
  5. The Divisional Court noted that, in her reconsideration decision, the Vice Chair of Human Rights Tribunal of Ontario had suggested that accommodation of Mr. Longueépée’s disabilities in the admissions process could lead to undue hardship (in the requirement to conduct an in-depth assessment of every application from a person asserting a disability). However, undue hardship had not been advanced by the University and there was no evidence in the record to support this conclusion: at para. 61.
  6. After accepting that the University had met what the Vice Chair characterized as the procedural duty to accommodate plaintiff’s inability to comply with its grade criteria for admission due to disability by conducting an individualized assessment of the application, the Vice Chair concluded that the University met its substantive duty to accommodate when it considered only the unaccommodated grades to be relevant to his ability to succeed in the University. That approach doesn’t make sense because it says that the University has no duty to carry through with the process to accommodate the plaintiff in his application for admission once a committee was formed.
  7. The Vice Chair recognized an undue hardship defense even though the University never argued or presented evidence of undue hardship.
  8. The finding of prima facie discrimination resulting from the University’s grade admission standard was not challenged by the University in the Ontario Court of Appeals.
  9. Failure to accommodate claims have a procedural and a substantive process to them. The procedural part is the identification of the process or procedure to be adopted in providing the accommodation to the person who would be subjected to the discriminatory standard. Once the institution has an understanding of the plaintiff’s needs, it has the obligation to ascertain and seriously consider possible accommodations that could be used to address those needs, including the option of undertaking an individualized assessment in the case of a discriminatory standard.
  10. The substantive component of accommodation refers to the steps taken to implement the accommodation to the point of undue hardship. It involves the consideration of what was actually done in the accommodation process to meet the individual’s needs.
  11. There was no indication that the University engaged in a back-and-forth with the plaintiff or undertook any other steps to assess how his disabilities might impact his ability to meet the University’s grade standard.
  12. No indication existed that the admission committee made any effort to understand how plaintiff’s disabilities might have affected his grades at the prior University, or to analyze whether his grades interpreted in light of his disabilities, might assist in showing his ability to succeed at the University.
  13. The admission committee failure to question how it should interpret plaintiff’s prior grades amounted to a decision to take those grades at face value. So, any individualized analysis of the plaintiff’s situation was inextricably tied to the discriminatory standard, the focus on his prior grades, which by the very nature of setting up an admission committee had already been recognize as not being reflective of plaintiff’s abilities.
  14. The admission committee consideration of only plaintiff’s prior grades is inconsistent with the individualized and holistic process described by the University when it concluded that it had met its procedural duty to accommodate.
  15. University did not consider whether plaintiff’s supplementary materials demonstrated an ability to succeed at the University. In particular, there is no indication that the admission committee considered plaintiff’s volunteer work on behalf of child abuse survivors and reference letters given for that work as relevant to his ability to succeed in the University. In fact, the Vice Chair of the Human Rights Tribunal of Ontario said that the admission committee was entitled to disregard reference letters in volunteer work as indicators of potential academic success. In other words, grades were the only indicator of possible success at the University.
  16. No evidence exists that the University presented to the Human Rights Tribunal of Ontario that the admission committee had actively engaged with the additional material provided by the plaintiff in order to determine whether that material demonstrated his ability to succeed at the University.
  17. Reasonable accommodations cannot take the form of simply applying the discriminatory grade standard to his unaccommodated grades. If the University was going to take that approach, it needed to establish undue hardship, which it never even tried to do. If it had tried to go with an undue hardship defense, the University would have had the burden of proving that issue up. No such evidence was presented on the issue and it was not before the Vice Chair when she made her decision.
  18. In essence, rather than inquire into the steps taken by the admission committee and respond to the prima facie discrimination that would result from the application of the grade standard to plaintiff’s prior academic record, the Vice Chair accepted that plaintiff had been accommodated when the admission committee based the decision solely on his unaccommodated grades. Further, the Vice Chair effectively gave credit to an undue hardship argument when the University did not present that evidence or rely on it for that defense. Accordingly, the divisional court was correct in setting aside the decisions on judicial review.
  19. The divisional court said it was sending the matter back to the admission committee with directions on how to assess plaintiff’s application and not to the Human Rights Tribunal of Ontario to determine the appropriate remedy. That doesn’t make sense because the conclusion that the University discriminated against the plaintiff in the admission process is inevitable on the record that was before the Vice Chair of the Human Rights Tribunal of Ontario when she made that decision. Accordingly, the appropriate remedy is to return the matter to the Human Rights Tribunal of Ontario for further disposition in light of the court’s opinion so that it may fashion the remedy that promote compliance with the code.

III

Concurrence by Lauwers

  1. Courts have treated universities with some caution.
  2. The feature of University autonomy at issue in this case is the admission process. The admission process is a core feature of University autonomy.
  3. It has long been accepted that courts should be reluctant to interfere in the core academic functions of universities.
  4. The decision whether to admit the plaintiff to Department of Biology’s math or science program was a decision going to the core of the University’s functions.
  5. Tribunals and courts should be equally careful to preserve the integrity of the University admission process.
  6. Nothing in the decision is intended to discourage or disparage the University’s grade admission standard.
  7. The deference owed to University does not completely insulate academic decisions from tribunal or judicial scrutiny, but the Human Rights Tribunal of Ontario must be cautious not to override the admission standards of universities and admission to ensure accommodations. Here, they were too cautious and plaintiff wins. However, other cases will be different and the Court of Appeal will have to feel their way between the tensions of deference to University decisions in core areas of their mandates and the duty to accommodate.

IV

How Would This Case Play Out with the ADA and thoughts/takeaways?

 

  1. I am not licensed in Canada or Ontario. So if you really want to have this decision analyzed for what it means for your college or university or your client dealing with an Ontario or Canadian college or university, get legal counsel licensed in Ontario and/or Canada.
  2. Both the Ontario law and the ADA talk about reasonable accommodations/modifications and the concept of undue hardship/burden. The meanings in both laws appear to be very similar. Also, in both places modifications must be made up to the point of undue hardship/undue burden.
  3. The ADA prohibits policies, practices, and procedures that discriminate against persons with disabilities when reasonable modifications/accommodations can be made.
  4. United States courts do give deference to academic decisions but that very much depends upon how the academic institution went about reaching that decision. We discussed that in this blog entry181211191191192.
  5. Diversity has become a big issue on American college and university campuses. It is unlikely that a university would focus solely on an individual’s grades in making an admission decision. It would play at many universities a huge part of it, but it would not be the sole criteria.
  6. One wonders if the University would not have won this case if legal counsel had argued undue hardship. Could the University have a legal malpractice case, such as we discussed here182212192192193. I do not know how similar the prima facie elements of legal malpractice claims in Canada are to of the prima facie elements of such claims here in the United States.
  7. The interactive process is always a good idea. With respect to title II of the ADA, there is case law out there saying that the interactive process applies to title II of the ADA. You don’t see such case law with respect to title III of the ADA, though preventive law and the ADA paradigm itself demands it. However, across all titles of the ADA there is the requirement to engage in individualized analysis. The Ontario Court of Appeal mentions that the Ontario disability discrimination law also requires an individualized analysis.
  8. A university need to look at the entire file that the student presents before making an admission decision.
  9. Ontario uses “undue hardship,” while title II and title III of the ADA use “undue burden,” and “fundamental alteration.” From reading the opinion, undue hardship in the Ontario law seem to be pretty close to the ADA concept of fundamental alteration and undue burden and to the ADA concepts of financial undue hardship and logistical undue hardship.
  10. For who gets into selective colleges and why, I highly recommend Jeffrey Salingo’s book on that subject, which can be found here183213193193194. Reading the book was a real eye-opener. It is also very easy to read. If you have a junior in high school or even a senior in high school and are interested in selective colleges, it is in my opinion mandatory reading. It is also mandatory reading for anyone working with students on their college choices. From reading that book, at selective colleges the grades you achieve in difficult classes are probably the number one thing that admissions committees look at. Test scores that match up with that performance are also important, though that is changing with colleges deemphasizing standardized tests altogether.
  11. Could a similar case happen here in the United States with a similar result? Hard to say. I do think that courts would share the concerns of the concurring judge when he says that who gets in is at the very core of colleges and universities. So, courts would be very reluctant to get involved with respect to who gets in. However, if a university or college did not look at the whole file as a matter of course that may be another story.
  12. Here in the United States, it is more likely that a high school student with a disability will fall into one of three situations: 1) a student with a disability that does not realize he or she has one; 2) a student with a disability who has a §504 plan; or 3) a student with a disability who has an IEP under the IDEA. With respect to the §504 plan, if the plan worked properly the student would be at the same starting line as the student without a disability and the academic record would reflect performance with being fully accommodated (I realize that there can be quite a bit of divergence between the theory and the practice of §504 plans). The IEP process works differently as it is based on goals and not a starting line analogy. It would possibly be more difficult for a college or university to figure out potential of the student from an IEP v. a §504 plan. However, unless a student discloses the disability up front in the admission process (I did at both the Bachelors and J.D. levels) it is unlikely that the admission committee would ever know about the student’s disability. If a student did disclose a disability, it would be wise for the University to look at the whole file. All this said, from reading Jeffrey Salingo’s book selective universities do look at the whole file to some degree if for no other reason than to maximize achieving a diverse class.
  13. Bottom line: colleges and universities should review the entire file of the student. Courts, at least in this country, are likely to give the college or university quite a bit of discretion if they make such a holistic review.
  14. I am not licensed to practice law in Canada or in Ontario. Also, other Canadian provinces may have their own laws on this subject.

Today’s blog entry comes out of the Northern District of Georgia, and it involves the question of what is deliberate indifference in effective communication cases. We have talked about effective communication and deliberate indifference numerous times before in the blog. The case of the day is Nix v. Advanced Urology Institute of Georgia198199. By way of full disclosure, I have previously on another matter consulted with local counsel on this case previously but have never consulted with the lead counsel. As usual, blog entry is divided into categories and they are: facts; court’s reasoning introductory matters; court’s reasoning effective communication; court’s reasoning deliberate indifference;; the case is being appealed and should be; and thoughts/takeaways. Of course, the reader is free to concentrate on any or all of the categories.

 

I

Facts Lifted Directly from the Opinion (citations are internal to the opinion)

 

Nix is deaf and primarily communicates using American Sign Language (ASL).2 Nix also reads and writes in English.3 Advanced Urology is a medical 1 The following facts are undisputed by the parties or otherwise supported by undisputed evidence in the record. 2 ECF 88, ¶ 1. 3 Id. ¶ 2. practice specializing in urological health.4 Prior to its involvement with Nix, Advanced Urology had treated deaf patients, but did not have an ongoing agreement with an interpreting agency.5 On February 5, 2018, Nix contacted Advanced Urology through a video relay service to make an appointment at its facility in Snellville, Georgia.6 Due to the emergency nature of Nix’s symptoms, the parties scheduled the appointment for February 7.7 Nix did not request an in-person interpreter during this initial call.8 The next morning, Nix called back and requested an interpreter.9 That request was forwarded to Missy Sherling—Advanced Urology’s VicePresident of Clinical Strategy—who, in turn, initiated a call with Steve Karasick and Kelly Brauer, Advanced Urology’s then-Chief Executive Officer and Surgery Center Director, respectively.10 Brauer, Karasick, and Sherling discussed Nix’s request, concluded they did not have sufficient time to procure an interpreter 4 Id. ¶ 3; ECF 89-1, ¶ 16. 5 ECF 89-1, ¶ 18. 6 Id. ¶ 18. 7 Id. ¶ 24; ECF 72 (Nix Dep. Tr. 78:11–21). 8 ECF 72 (Nix Dep. Tr. 81:10–20). 9 ECF 89-1, ¶ 25. 10 Id. ¶ 27. through their usual interpreting agency, and decided to look for other ways to fulfill Nix’s request.11 While attempting to locate an interpreter, Sherling learned that an Advanced Urology employee, Samantha Fazzolare, had a friend, Dalton Belew, who “could do basic signing.”12 Fazzolare did not inform Sherling of Belew’s profession or represent Belew as a trained or professional interpreter.13 Fazzolare provided Sherling with Belew’s contact information.14 Sherling did not, however, conduct any investigation into Belew’s background or qualifications as an interpreter.15 Based on Sherling’s subjective belief that Belew previously interpreted for another medical practice, Sherling and Karasick made the decision to ask Belew to interpret Nix’s appointment.16 Belew agreed.17 Contrary to Sherling’s beliefs, Belew was not certified in ASL,18 had never interpreted in a 11 ECF 66 (Sherling 30(b)(6) Dep. Tr. 15:2–23). 12 Id. at 17:18–18:3. 13 ECF 76 (Fazzolare Dep. Tr. 18:6–19:3). 14 ECF 89-1, ¶ 33. 15 ECF 66 (Sherling 30(b)(6) Dep. Tr. 27:3–21). 16 Id. at 74:18–25. 17 ECF 89-1, ¶ 38. 18 ECF 68 (Belew Dep. Tr. 12:14–16). medical setting,19 and characterized his own skills as “intermediate.”20 Belew had instead been previously employed as a video editor, floor manager at a news company, and at a dental office in an administrative position and as a sterilizer.21 After securing Belew’s agreement, Sherling called Nix and informed her an interpreter had been secured for her appointment.22 On February 7, Nix and Belew arrived at Advanced Urology for Nix’s appointment. The parties dispute many of the specific details of the appointment. However, the evidence is undisputed that Nix and Belew experienced significant difficulties communicating with each other through ASL. Due to Belew’s struggles, and his wearing of scrubs bearing Advanced Urology’s insignia, Nix became convinced Belew worked as a nurse, not an actual interpreter.23 At some point, Nix abandoned communication with Belew entirely and began writing notes and using gestures to communicate directly with the medical staff.24 Belew nonetheless remained in the room while Nix partially undressed and 19 Id. at 13:2–5. 20 Id. at 14:11. 21 Id. at 10:2–12:13. 22 ECF 89-1, ¶ 41. 23 E.g., ECF 72 (Nix Dep. Tr. 118:1–119:3). 24 ECF 89-1, ¶¶ 67–68. underwent two non-invasive ultrasounds.25 At the conclusion of the appointment, Nix and Belew filled out various forms affirming that Belew acted as an interpreter during the entire appointment.26 Advanced Urology ultimately issued Belew a check for $100 for his services.27 After her appointment, Nix and her husband complained to Advanced Urology regarding its decision to use Belew as an interpreter; Advanced Urology apologized and refunded their $40 co-pay for the appointment.2

 

plaintiff filed suit alleging violations of title III of the ADA, §504 to Rehabilitation Act, §1557 of the patient protection and Affordable Care Act, fraud, negligence, and intentional infliction of emotional distress. Of course, summary judgment motions were filed. She sought both injunctive relief and damages.

 

II

Court’s Reasoning Introductory Matters

 

  1. The Affordable Care Act, the ADA, and the Rehabilitation Act all use the same substantive standards.
  2. Plaintiff withdrew her claims for injunctive relief in her response to defendant’s motion for summary judgment.
  3. Plaintiff is a qualified person with a disability.
  4. Plaintiff utilizes ASL at her primary means of communication.

 

III

Court’s Reasoning Effective Communication

 

  1. With respect to whether communication is effective, the question is whether plaintiff experienced an impairment in her ability to communicate medically relevant information with hospital staff with a focus on the effectiveness of the communication and not on the medical success of the outcome.
  2. While perfect communication is not required, communication must still be effective.
  3. Ample evidence could lead a reasonable juror to find the communication between the plaintiff and the interpreter the practice hired to be ineffective. Examples include: the interpreter struggled to communicate even the most basic information, including his own name, during her appointment; the interpreter used incorrect signs for certain words, and the interpreter did not know what to sign or could not understand what plaintiff was attempting to communicate to him.
  4. Frustrated with the interpreter’s performance, plaintiff ultimately abandoned communication through ASL and resorted to self-help by exchanging handwritten notes in English directly with the medical staff.
  5. The 11th Circuit has held that the use of written notes may not be appropriate in the medical setting because such matters involve more complexity, such as communication about medical history or diagnoses, conversations about medical procedures and treatment decision, or communication of instruction for care at home or elsewhere. Written notes are better suited for more basic everyday interactions, such as the purchasing of an item in the hospital gift shop.
  6. The interpreter’s strained efforts in ASL interpretation combined with a mere four pages of handwritten notes created during the course of a three hour appointment, which included two noninvasive ultrasounds, does not constitute effective communications as a matter of law. So, genuine issues of material fact exists as to whether the limited auxiliary aids employed by the defendant impaired plaintiff’s ability to effectively communicate medically relevant information with that staff.

 

IV

Court’s Reasoning Deliberate Indifference

 

  1. Deliberate indifference is an exacting standard requiring showing more than gross negligence.
  2. No requirement exists in federal or Georgia law requiring a medical facility to provide an ASL certified interpreter for deaf patients.
  3. The mere failure to provide a patient with an interpreter is not enough to support a finding of deliberate indifference.
  4. Defendant did attempt to accommodate plaintiff’s last-minute request for an in person interpreter and procured one for her appointment. It is true that the interpreter constituted a poor choice and perhaps the defendant should have more rigorously vetted his qualifications as an interpreter before hiring them.
  5. No evidence exists that the defendant knew that it would be substantially likely that the interpreter could not effectively communicate with the plaintiff and yet did nothing about it.
  6. There is no dispute that the plaintiff ever specifically informed the defendant’s medical staff that she needed or wanted a different interpreter.
  7. Plaintiff did not raise any grievance concerning the interpreter’s performance until after the appointment.
  8. The interpreter believed that he and the plaintiff adequately communicated during the appointment, with the exception of certain medical terminology.
  9. Plaintiff’s medical providers willingly engaged in the exchange of written notes to facilitate communication.
  10. At best, the evidence demonstrates that the defendant should have done more to ascertain the interpreter’s competency in ASL before hiring him, but that is not enough to demonstrate deliberate indifference.
  11. No evidence exists creating a triable issue of fact that the defendant has knowledge that plaintiff’s rights would substantially likely to be violated and yet failed to act.

 

V

 

This Case Is Being Appealed and It Should

 

  1. While the court found that effective communication would not present here, it didn’t mention the standard in Silva I, which is: “To be ineffective communication, it is sufficient if the patient experiences a real hindrance, because of her disability, which affects her ability to exchange material medical information with her health care providers. This standard is consistent with the requirement that hospitals afford a level of communicationto a deaf patient about medically relevant information that is substantially equal to that afforded to non-disabled patients.”
  2. To show deliberate indifference in the 11th Circuit, Liese v. Indian River Community Hospital District180185200, which we discussed here181186201, a plaintiff has to show that the defendant: (1) knew they had failed to provide plaintiff with appropriate auxiliary aids necessary to ensure effective communication; (2) had the authority to order that aid be provided; and (3) was deliberately indifferent as to defendant’s failure to provide aid. A deliberate refusal to provide the auxiliary aid and service does constitute deliberate indifference under Silva I, discussed here182187202.
  3. The court frequently cite to Silva II, here183188203, which vacated the summary judgment on deliberate indifference but threw out the injunctive relief claim due to policy changes of the Defendant (the policy changes required: the provision of live in person interpreters upon request by a patient or guest; provided for VRI while waiting for a live interpreter; and provided for the scheduling of live interpreters for regularly scheduled appointments), as a basis for their decision. However, the impression created is not right. In Silva II, here184189204, the 11th Circuit said that deliberate indifference by itself is not the exacting standard, per Nix’s understanding for example, rather deliberate indifference requires that the indifference be a deliberate choice, which is the exacting standard.
  4. Silva II said that deliberate indifference occurs when the defendant knew that the harm to a federally protected right would substantially likely and failed to act on that likelihood. In other words, plaintiff must show ineffective communication done with knowledge that it would substantially likely to occur.

IV

Thoughts/Takeaways

 

  1. I, with co-counsel, have previously represented culturally deaf individuals, Deaf. From my experience, the culturally deaf can be a little too trusting of the hearing community at times. If you are representing a culturally deaf individual seeking medical care, you absolutely have to insist that he or she not go through with the appointment the minute they realize that a qualified interpreter is not there. They just have to walk away. You have to tell the culturally deaf individual to not even engage in the exchange of written notes except for the purposes of saying that he or she need a qualified interpreter.
  2. The court creates a higher standard for deliberate indifference than what was created in Silva I and Silva II. It resembles more the deliberate indifference standard adopted by the Seventh Circuit in a case we discussed here185190205.
  3. While the court says effective communication did not occur, they didn’t bring up the Silva I standard, which is whether communication was hindered.
  4. If you are representing a culturally deaf individual in a case like this, it becomes really important to have a table interpreter, an interpreter that acts very much as part of the legal team, who really understands how interpreting can go awry when a qualified interpreter is not involved. Also, be prepared to have an expert talk about the English ability levels of the plaintiff and the importance of ASL given that English ability (with respect to a culturally deaf individual, it is not unusual for such individuals to have English reading skills not higher than fourth grade if that).
  5. Prior to a culturally deaf individual walking away from the appointment, it is really helpful if the culturally deaf individual makes clear that the interpreter is not qualified and that they will not take any medical care offered until a qualified interpreter is present.
  6. Not sure why the plaintiff withdrew injunctive relief claims. I can say that one reason might be that the plaintiff had no intention of ever returning to that practice for reasons that are perfectly understandable.
  7. A culturally deaf individual need to immediately stop the appointment the minute he or she realizes the interpreter is not qualified. He or she should not wait till the end of the appointment to express those concerns.
  8. Depending upon your state, there may be informed consent concerns as well when a qualified interpreter is not provided for a culturally deaf individual. In the case that I served as co-counsel on, we had both informed consent claims as well as ADA claims in our complaint.
  9. Since the interpreter was not a qualified interpreter and bound by an interpreter code of ethics, there may be a breach of confidentiality claims against the physician as well in this kind of scenario.
  10. The 11th Circuit has been extremely progressive with respect to the rights of persons with disabilities. In light of Silva I, II and Liese, I like the chances of the plaintiff on appeal, though one never knows.