This week’s blog entry is a case that I have had in my blog to file for some time. This is one of Andrew Rozynski’s cases, and it is not the first time I have blogged on one of his cases. In the interest of full disclosure, he and I do stay in touch and also have been on a panel together. The case is Luke v. Lee County decided in August and September 2023 (here and here). As usual, the blog entry is divided into categories, and they are: facts; magistrate’s discussion that due process violations do not survive the motion to dismiss; magistrate’s discussion that the equal protection claims do survive the motion to dismiss; magistrate’s discussion that emotional distress damages for Title II claims are not allowed after Cummings; District Judge’s discussion of why expectation damages survive the motion to dismiss; and thoughts/takeaways. Of course, the reader is free to focus on any all of the categories.

 

I

Facts

 

Luke, a Deaf claims that after he was arrested for marijuana possession, the Defendants, including the CSCDs, failed to provide him with an ASL interpreter throughout “the investigation, arrest, booking, detainment, arraignment, release, court proceedings, and probation.” .

After Luke initially filed suit, the CSCDs filed a motion to dismiss, which the District Court granted.

Luke appealed to the Fifth Circuit, which analyzed whether Luke’s claims were in fact barred by sovereign immunity or whether sovereign immunity had been validly abrogated. The Fifth Circuit found that sovereign immunity did not apply to Lee County as it was a political subdivision rather than an arm of the State. It also found that Luke successfully pleaded a Title II claim satisfying step one of the [Georgia] abrogation test.” The court vacated the dismissal as to the CSCDs and remanded the case for disposition upon further briefing from the parties as to whether Luke’s claims satisfy the second and third steps of the abrogation test. Id. The Fifth Circuit also ordered the District Court to determine whether emotional distress damages are available under Title II after finding that Luke pleaded sufficient facts supporting compensatory damages in stating that he suffered “fear, anxiety, [and] humiliation” as a result of the alleged Title II violation.

Additionally, the Fifth Circuit remanded this case (1) for “consideration of whether Congress validly abrogated state sovereign immunity for the claims against the Supervision Departments” and (2) to “decide the effect, if any, Cummings has on Luke’s ability to recover emotional distress damages under Title II” and nothing more.

After the magistrate decision, the decision was appealed to the district judge with respect to the question of whether expectation damages were permissible after Cummings.

 

II

Magistrate’s Discussion That Due Process Violations Do Not Survive the Motion to Dismiss

 

  1. An essential component of due process rights is that individuals be given fair warning of acts that may lead to revocation.
  2. A lack of a qualified interpreter can implicate due process.
  3. Luke failed to explain how the lack of fair warning was implicated in his meetings with the probation officers.
  4. While the Fifth Circuit stated that Luke’s claims against Lee County on the basis of the denial of an interpreter throughout his criminal proceedings should proceed past the pleading stage, Luke did not sufficiently plead a 14th amendment due process violation as to the Community Supervision and Corrections Department of San Jacinto County, Texas.

 

III

Magistrate’s Discussion That the Equal Protection Claims Do Survive the Motion to Dismiss

 

  1. Disabled individuals are not a suspect class, which means they are usually subject to rational basis scrutiny. Under that standard, a legislative classification gets upheld against an equal protection challenge if there is any reasonable conceivable state of facts that could provide a rational basis for the classification.
  2. Since parties attacking the presumption of rational basis have the burden to negative every conceivable basis that might support it, Luke did not meet his burden in order to overcome the presumption of validity afforded to classification subject to rational basis review, which in this case was the Community Supervision and Corrections Department cost-saving justification.
  3. In Tennessee v. Lane, here, the Supreme Court found Title II’s accessibility requirements congruent and proportional to its object of enforcing the right of access to the courts. It further found that Title II unquestionably valid §5 legislation as it applies to the class of cases implicating the accessibility of judicial services.
  4. The ADA forbids discrimination against persons with disabilities in the provision of public services, program, and activities under Title II by public entities, including state and local governments, as well as their agencies and instrumentalities.
  5. In Tennessee v. Lane, the Supreme Court found that Title II also seeks to import a variety of other basic constitutional guarantees, infringements of which are subject to more searching judicial review, like the right of access to the courts, that are protected by the Due Process Clause of the 14th
  6. The Supreme Court in Lane went on to explain that Congress enacted Title II against the backdrop of pervasive unequal treatment in the administration of state services and program, including systematic deprivations of fundamental rights, such as the pattern of unequal treatment in the administration of a wide range of public services, programs, and activities, including the penal system.
  7. The Supreme Court noted that Congress had heard numerous examples of the exclusion of person with disability from state judicial services and programs, including exclusion of persons with visual impairments and hearing impairments from jury service, failure of state and local government to provide interpretive services for the hearing impaired, failure to permit the testimony of adults with developmental disabilities and abuse cases, and failure to make court rooms accessible to witnesses with physical disabilities.
  8. Lane held that with respect to the right of access to the courts, States sovereign immunity was abrogated (forcibly waived).
  9. Lane makes clear that the right of access to the court falls under the wider umbrella of judicial services.
  10. The failure to provide an ASL interpreter implicates the accessibility of judicial services for several reasons: 1) the Lee and San Jacinto County Community Supervision and Corrections Departments supervise offenders who were sentenced to community supervision by local courts; 2) They are also established by district judges in each judicial district and organized within local judicial districts; 3) supervision department employees work for the judicial districts, and the judicial districts pay their salary and provide office space, equipment, and other forms of support; 4) given the relationship between the Community Supervision and Corrections Departments and the Local court districts per the Texas Local Government Code, it is reasonable to infer that Luke’s claims implicate a judicial service, namely the oversight of his probation period.

IV

Magistrate’s Discussion That Emotional Distress Damages For Title II Claims Are Not Allowed After Cummings;

 

  1. Cummings, which we discussed here, clearly established that emotional distress damages are not recoverable under spending clause antidiscrimination statutes, such as the Rehabilitation Act. It follows that the interpretation of remedies under the Rehabilitation Act is also applicable to Title II of the ADA.
  2. The plain reading of the language of 42 U.S.C. §12133 reflects a congressional policy that the remedies under the Rehabilitation Act are the remedies available under Title II of the ADA.
  3. Since the general principle is that the rights and remedies under Title II and the Rehabilitation Act are the same, emotional distress damages are not available under Title II.

 

 

V

District Judge’s Discussion of Expectation Damages Survive The Motion To Dismiss

 

  1. Whether expectation damages are workarounds to Cummings does not necessarily render them unavailable as a matter of law.
  2. A party’s expectation losses are not necessarily the same as their emotional distress.
  3. Cummings instructed that court should examine whether a remedy is traditionally, generally, or normally available for contract actions.
  4. Just as it is hornbook law that emotional distress damages are not available for contract claims, it is also hornbook law that expectation damages are available for contract claims.
  5. Contract damages are ordinarily based on the injured party’s expectation interest and are intended to give the person the benefit of the bargain by awarding the person a sum of money that will, to the extent possible, put that person in as good a position as he/she/they would have been in had the contract been performed.
  6. By entering into a contract under Title II remedies, the Community Services Correction Department was on notice that it could potentially be liable for standard contractual remedies.
  7. In general, recovery under expectation damages is limited to an amount that the evidence permits to be established with reasonable certainty.
  8. The reasonable certainty inquiry is a question of fact and simply cannot be determined at the motion to dismiss stage.
  9. While certain losses of Luke may be incapable of quantification, other instances, such as loss of employment through prolonged confinement, may result in damages capable of calculation.
  10. At the pleading stage, each subset of family does not need to be pled with specificity or directly supported with evidence.
  11. Even if expectation damages are unlikely to prove quantifiable at a later stage of litigation, which very well may be the case in this situation, they are not barred as a matter of law.
  12. In a footnote, the court noted that since expectation damages are a standard contractual remedy, Community Services Corrections Department had notice by definition under Cummings.
  13. Any concern that expectation damages are not intuitive and seemingly inapplicable to ADA violations, is addressed by the fact that expectation damages must be quantifiable.

 

VI

Thoughts/Takeaways

 

  1. Persons with disabilities are the only class of people whose equal protection category varies depending upon the particular factual situation. For example, with respect to employment, persons with disabilities are in the rational basis class per Board of Trustees of the University of Alabama v. Garrett. As we see in the case discussed this week, with respect to judicial services they are in the highest class. It just depends from one factual situation to the other as to where people with disabilities will land with respect to the equal protection classification.
  2. This decision holds that “accessing the courts,” mentioned in Lane is actually far broader and applies to judicial services.
  3. The courts are holding that emotional distress damages are not available under Title II of the ADA even though Cummings specifically said they were saving that question for another day.
  4. Expectation damages may be a workaround to the Cummings prohibition on emotional distress damages. However, those damages require reasonable certainty in order to be allowed, but it is nevertheless possible such damages could be shown.
  5. The case settled.
  6. “Visual impairments,” is acceptable in the vision loss community. However, “hearing impairment,” drives most in the hearing loss community absolutely bonkers.

Today’s blog entry comes to me courtesy of Prof. Leonard Sandler, a clinical law professor at the University of Iowa. He sent me the case of Goldup v. Casino decided by the United States District Court for the Southern District of California on January 31, 2025. There are two aspects of the case, which can be found here. The first aspect of the case is a ringing endorsement by a federal judge concerning the right of a person with a disability, in this case someone who is severely dyslexic, to get reasonable accommodations from the court. The second aspect of the case involves whether there are any limits on the sovereign immunity of Indian tribes. We previously discussed how far sovereign immunity can go with respect to Indian tribes, here. As usual, the blog entry is divided into categories and they are: court’s ringing endorsement of the right of a person with a disability to receive accommodations from the court; thoughts/takeaways on the court’s endorsement of disability inclusion; why I put this case on my to follow list; and thought/takeaways on plaintiff’s claims in his motion opposing the motion to dismiss.

 

I

Court’s Ringing Endorsement of the Right of a Person with a Disability to Receive Accommodations from the Court (Taken From the Actual Opinion)

 

  1. Plaintiff represents that he has been diagnosed with dyslexia and a learning disability, thus presenting “significant challenges in written communication, including organizing and articulating complex legal arguments effectively.” Mot. at 2. Citing this nation’s longstanding recognition of leniency afforded pro se litigants and the United States Supreme Court’s extension of Title II of the Americans with Disabilities Act (“ADA”) to judicial proceedings, see id. at 3 (citing Tennessee v. Lane, 541 U.S. 509 (2004)), Plaintiff essentially seeks a reasonable accommodation to ensure his disabilities do not “impair his ability to communicate effectively” with the Court, see id. In short, Plaintiff argues that holding [*4]  an oral argument would aid the Court in addressing the complex issues at the heart of this case in light of Plaintiff’s struggle to communicate in writing. See id. at 4 (citing Greenwood v. Fed. Aviation Admin., 28 F.3d 971 (9th Cir. 1994)). Defendants have not filed a response.

 

  1. Nevertheless, “[t]he [*5]  Judicial Conference of the United States has long supported full access to judicial proceedings by all segments of the disabled community.” at *4. To that end, the Judicial Conference has “adopted a policy that all federal courts should provide reasonable accommodations to persons with communications disabilities.” Report of the Proceedings of the Judicial Conference 75 (Sept. 1995); see also Guide to Judiciary Policy (the “Guide“), Vol. 5, Ch 2, § 255 (requiring courts to “provide sign language interpreters or other auxiliary aids and services to participants in federal judicial proceedings who are deaf, hearing impaired, or have communication disabilities”).3 Thus, although the Court finds that the written materials Plaintiff has filed with the Court are coherent and clearly articulate Plaintiff’s arguments as they pertain to Defendants’ Motion to Dismiss, it is in the interests of justice, because of Plaintiff’s purported dyslexia and learning disabilities, to permit Plaintiff an opportunity to orally express to the Court his positions as they relate to Defendants’ Motion to Dismiss. However, “to secure the just, speedy, and inexpensive determination of [this] proceeding,” Fed. R. Civ. P. 1, the Court [*6]  will not require the Parties to appear in person and will only allow each side a modest ten (10) minutes to make their presentation.

3 The Guide, available only to the federal judiciary at http://jnet.ao.dcn/Guide/Index.html, “is the official medium by which direction as to courtroom procedures and other information are provided to the Federal Judiciary in support of its day-to-day operations. The Guide also codifies policies which are promulgated

II

Thoughts/Takeaways on the Court’s Endorsement of Disability Inclusion

 

  1. The plaintiff is proceeding pro se.
  2. Footnote 3 in the opinion, which is reproduced above, appears to be missing information (there would seem to be words that follow after the word, “promulgated), and it doesn’t appear in the opinion. Maybe, the court will fix that at a later time.
  3. While I did not excerpt it to this blog entry, the court does say that title II of the ADA does not apply to the federal government.
  4. Federal courts that are not part of executive agencies do not have to comply with the Rehabilitation Act of 1973.
  5. Federal courts that are part of executive agencies do have to comply with §504 of the Rehabilitation Act.
  6. Federal courts that are part of executive agencies do have to comply with §501 of the Rehabilitation Act with respect to their employees. §501 uses the liability and standards of Title I of the ADA.
  7. When one looks at the Administrative Office of The Courts regulations, which are extremely difficult to find, there isn’t much there beyond accommodating those with hearing loss. See here. What is important for our purposes is the sentence in the opinion saying that, “[t]he Judicial Conference of the United States has long supported full access to judicial proceedings by all segments of the disabled community.” (Emphasis added). This court is saying that all segments of the disabled community need to have full access to judicial proceedings.
  8. Also important, is the sentence that, “the Judicial Conference has “adopted a policy that all federal courts should provide reasonable accommodations to persons with communications disabilities. Report of the Proceedings of the Judicial Conference 75 (Sept. 1995).” So, this court is saying that the judicial conference has made it clear that communication disabilities, a concept that goes beyond hearing loss, also need to be accommodated.
  9. I get cases at least once a month from around the country regarding courts denying access to persons with disabilities. They are very rarely about the actions of federal courts, which is very good news considering the tremendous discretion that federal judges have with respect to accommodating persons with disabilities outside of those with hearing loss. Most of those cases I hear of involve family law judges from around the country, and it does not break down into traditional red or blue states either. If it is not a family law court that is coming across my desk, it is invariably a state court of some kind. I have had one situation come across my desk involving federal courts, but it is not common at all.
  10. I chair the Federal Bar Association Disability Best Practices Working Group. Within the next two months, we will be putting out an accessibility manual for the federal courts. Our hope is that if the federal courts have an easy to understand and use manual, that it will be much easier for persons with disabilities to access federal courts, whether the courts are a part of executive agencies or not. When the manual goes live, I will certainly make a note of that in the blog entry for that week.

 

III

Why I Have Put This Case on My to Follow List

 

  1. This case involves an individual who sued a casino run by an Indian tribe for disability discrimination. His brief against the motion to dismiss mentions a service animal. So, it is likely that this is a case where the casino refused to allow him into the casino with his service animal. The Indian tribe defended on the grounds that the claim should be thrown out because of sovereign immunity. We discussed such a case  here. That case went quite far with respect to sovereign immunity of Indian tribes saying that both damages and injunctive relief were subject to sovereign immunity.
  2. Plaintiff’s make several arguments in his memorandum against the motion to dismiss, see immediately below, that will be very interesting to see how the court reacts to.
  3. Plaintiff claims that sovereign immunity is waived when it comes to commercial enterprises interacting with non-tribal members.
  4. Plaintiff claims Indian casinos are places of public accommodations under 42 U.S.C. §12181(7).
  5. Plaintiff claims that there is a distinction to be made between a tribe’s governmental and commercial functions and therefore, federal civil rights laws, such as the ADA, apply to tribal-run businesses operating as public accommodations.
  6. Plaintiff claims that the current parties to the litigation are fully capable of adequately representing the interests of any absent entities.
  7. Plaintiff claims that through the collection of taxes, the IRS becomes a federal partner thereby subjecting the casino to federal laws.
  8. Plaintiff claims that an individual responsible for enforcing discriminatory policies can be held personally liable under the ADA.

 

IV

Thoughts/Takeaways on Plaintiff’s Claims in His Motion Opposing the Motion to Dismiss

 

  1. Plaintiff is going to have to get around the case we discussed here, which is a published decision. Granted, that case is also a district court case, out of Arizona and not the Southern District of California, but it is published. As a published case, that means it is precedential, though certainly not binding on another district court even if it is published.
  2. Undoubtedly, the casino would be covered as a place of public accommodation under 42 U.S.C. §12181(7).
  3. If it can be shown that the casino receives federal funds, cases invariably hold that sovereign immunity is waived by the receipt of federal funds.
  4. The distinction between tribal functions and commercial enterprise functions is a very interesting one, and I am definitely interested to see how the court ultimately rules on that.
  5. The IRS involvement as a federal partner is definitely, as the plaintiff notes, a novel one.
  6. The cases with a rare exception from the 11th Circuit involving retaliation by a title II entity against a person with a disability, here, do not allow for individual liability under the ADA.

I will be very interested to see the ruling on this case and whether it is appealed. I am not sure when that ruling will come down.

 

I thought I would do a different kind of blog entry this week. With the new administration, there have been so many dizzying developments. Also, the EEOC recently filed a spate of cases that bear watching as well. I thought I would highlight some of those developments.

 

I

Equal Employment Opportunity Commission v. BellSouth Telecommunications (No. 2:25-cv-137, United States District Court for the Eastern District of Louisiana)

 

In this case, the EEOC sued AT&T on January 17, 2025, with respect to a policy that screened out people with class III obesity, which is people with a BMI of 40 or greater. In particular, AT&T set up a weight limit for using equipment that was actually lower than the weight limit suggested by the manufacturer of the particular equipment. They then took adverse action against people who could not make that weight limit, including the plaintiff. One of the things that this will come down to is the question of direct threat, which we have discussed many times in the blog, such as here. We actually discussed a similar issue with respect to amusement parks, here.

 

 

II

Davis v. Laboratory Corporation

 

The Supreme Court decided to hear this case, which we blogged on here. In particular, the question the Supreme Court decided to hear is the question of whether a federal court may certify a class action under Federal Rules of Civil Procedure 23(b)(3) when some members of the proposed class lack any Article III injury. Predicting what the Supreme Court will do is a fool’s errand, but the way the question as phrased that the Supreme Court will consider does not bode well for plaintiffs, but you never know. You might also want to check out the Supreme Court decision in Laufer, which we discussed here.

 

 

III

EEOC Guidance on AI Withdrawn

 

The EEOC removed a stack of AI-related documents from its website on January 27, 2025. We have blogged on the EEOC guidance on AI previously, here. Also, I wrote a law review article on persons with disabilities and AI in employment, here. I agree with others discussing this development in a Law360 article by Anne Cullen, here (subscription required), that taking down the guidance doesn’t really change anything because using AI to screen out people with disabilities is still going to be a problem under the ADA.

 

IV

A.J.T. v. Osseo Area Schools

 

In this case, the Eighth Circuit ruled in March 2024, here, that children with disabilities claiming disability discrimination in educational settings under Title II of the ADA must meet a high standard to potentially receive monetary damages. In particular, the Eighth Circuit said that a deviation must be so substantial that it demonstrates wrongful intent. The Supreme Court decided to hear the case as the U.S. Court of Appeals are split. Again, predicting what the Supreme Court will do is a fool’s errand. That said, the Muldrow case decided by the Supreme Court, which we discussed here, may play a role in this analysis. I am not going to go out on a limb here and predict which way the Supreme Court, even configured the way it is, might decide this case.

 

V

EEOC v. Sam’s East Inc. (No. 1:25-mi-99999, United States District Court for the Northern District of Georgia)

 

On January 17, 2025, the EEOC sued Sam’s East Inc. for unlawful employment practices whereby the defendant had a policy of refusing to grant accommodation because the injury was not on the job. I have actually seen these policies come across my desk, especially when it comes to light duty situations. I strongly recommend that an employer simply not do this. It simply does not matter how a person become disabled for them to be protected under the ADA. To think otherwise, destroys the very purpose of the ADA as the incredible vast majority of people become disabled as a result of situations outside their workplace.

 

VI

EEOC Commissioners Are Terminated

 

Pres. Trump terminated Democratic EEOC commissioners whose terms had not yet expired. One of the Commissioners has hired a top-notch plaintiff side employment firm to consider the matter. Pres. Trump may have more authority to terminate the EEOC’s General Counsel than he does the actual Commissioners. Look for this to be tied up in litigation for quite some time.

 

VII

Federal Employees Return to Office

 

The new administration has made it very clear that it wants its employees in the office five days a week full time. There are many people with disabilities that benefit from working remotely. §501 of the Rehabilitation Act still applies. By statute, the §501 rules and liability standards are the same as title I of the ADA. So, expect lots and lots of litigation over remote work. The best preventive law way for dealing with remote work is a case that we discussed here. As a result of the pandemic, I strongly suggest that for the first two Samper factors attorneys add an “in person,” requirement to those criteria.

 

Interesting times. For those needing a distraction, we have the Super Bowl coming up, which promises to be a very good game between Kansas City (first team in history to go to three consecutive super Bowls), and Philadelphia. I will actually be visiting my daughter in college during basketball weekend at that time, so it will be fun to watch at least some of it with her.

I hope everyone’s new year is off to a fabulous start. Congratulations to Ohio State for winning the NCAA FBS championship.

 

Today’s blog entry deals with whether a temporary disability can be a disability under the ADA. The answer is most certainly yes. There is also some other good stuff to cover as well from the opinion. The case of the day is Sutherland v. Peterson’s Oil Service, Inc., here. It is a published decision from the First Circuit decided on January 16, 2025. As usual, the blog entry is divided into categories and they are: facts; a temporary knee injury may indeed be a disability under the ADA; genuine issue of material fact exists as to whether the plaintiff was a qualified individual with a disability; a reasonable jury could conclude that an adverse action occurred; the retaliation claim needs to be considered on remand; the failure to accommodate claims survive summary judgment; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

Two months into his new job with the company, Sutherland (plaintiff), injured his right knee, tearing his meniscus in two places and damaging his patella. Because of his injury, Sutherland twice requested that Peterson’s reduce the length of his workday. Eventually, he took a 12-week leave of absence to undergo knee surgery and recover. When he tried to return to work, in April 2020, Peterson’s was not receptive. Instead, Sutherland learned that Peterson’s had terminated him, effective the date he was supposed to return from leave, “due to lack of work during the COVID-19 pandemic.” Sutherland ultimately sued Peterson’s for disability discrimination and related claims. The district court granted summary judgment to Peterson’s, and Sutherland appealed. On appeal, the First Circuit reverses and vacates the grant of summary judgment on the discrimination and retaliation claims as well as the discrimination and failure to accommodate claims under Massachusetts laws. It upheld summary judgment grant with respect to wrongful termination based on violation of Massachusetts public policy, which had to do with plaintiff’s view whether biofuels were dangerous and the concerns he raised about that. We won’t cover the public policy section of the opinion in this entry.

The specific facts are of course much more detailed than this, but the above, taken directly from the opinion, is an excellent summary.

 

II

 

A Temporary Knee Injury May Indeed Be a Disability under the ADA

 

  1. In a footnote, the court noted that the amendments to the ADA fundamentally changed the analysis of whether temporary disabilities are covered by the ADA.
  2. Since Massachusetts law and the ADA are so similar in their phrasing, both get the same legal framework applied to the disability discrimination claims.
  3. To make out a prima facie case of disability discrimination, a plaintiff has to show that he (in this case): 1) has a disability within the meaning of the ADA; 2) is qualified to perform the essential functions of the job with or without reasonable accommodation; and 3) was subject to an adverse employment action based in whole or in part on his disability.
  4. A disability under the ADA includes a physical or mental impairment that substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment.
  5. The definition of disability must be construed in favor of broad coverage of individuals.
  6. In enacting the amendments to the ADA, Congress expressly rejected the Supreme Court’s overly strict interpretation of disability. In fact, Congress directed that the EEOC enact regulations to implement the ADA’s broad scope of protection. The EEOC did that in 29 C.F.R. §1630.2(j)(1)(vii)-(ix) when it stated that an injury need not be permanent or long-term to be considered sufficiently severe and therefore qualify as an impairment.
  7. The EEOC regulations at 29 C.F.R. §1630.2(i)(2), also clarify that major life activities are not determined by reference to whether they are of central importance to daily life and that the term major shall not be interpreted strictly to create a demanding standard for disability.
  8. In a footnote, the court said that these EEOC regulations pass the Loper Bright standard as Congress in the amendments to the ADA, explicitly granted the EEOC the authority to issue regulations implementing the definitions of disability. As such, that is the perfect example of Congress expressly delegating to an agency the authority to give meaning to a particular statutory term thereby passing the Loper Bright test for a court to rely on final regulations.
  9. In enacting the amendments to the ADA, Congress expressly rejected previous Supreme Court precedent and concluded that a temporary injury can qualify as a disability if it is sufficiently severe.
  10. No per se rule exists about either the type or amount of evidence a plaintiff needs to have for an impairment to exist. Some conditions plainly fall within the universe of impairments that a lay jury can figure out without expert guidance and one of those conditions is a knee injury.
  11. A lay jury would have no difficulty grasping the connection between a knee injury and problems in conducting major life activities, such as standing, walking, and bending. In this case, plaintiff explained in vivid details that his knee hurt so badly that he wished his leg would be ripped off. He also told Peterson’s personnel that his knee was so swollen that he could not bend it, and that after working long days, he would have to reduce the swelling by way of icing in order to use the knee at all.
  12. Plaintiff also demonstrated that he had a record of a disability for the period following his recovery from surgery. A record of disability may be satisfied by a showing that the plaintiff had a disability in the past.
  13. Plaintiff also satisfies the standard of showing that he was regarded as having a disability given that it is undisputed that Peterson’s was either aware of or perceived the impairment that his knee injury presented at the time it terminated him. With respect to a regarded as claimed, the amendments make clear that a substantial major life activity being perceived by the employer is completely irrelevant to the regarded as claim.

 

III

 

Genuine Issues of Material Fact Exists As to Whether the Plaintiff Was a Qualified Individual with a Disability

 

  1. The EEOC final regulations at 29 C.F.R. §1630.2(n)(1) say essential functions are fundamental job duties of the employment position.
  2. Factors to be considered in evaluating whether a function is essential include the employer’s judgment, written job description, work experience of past incumbents of the job, and the current work experience of incumbents in similar jobs. Courts grant a significant degree of deference to the employer’s judgment.
  3. A reasonable jury could find that installations and night shifts were not essential functions of the service technician position. In fact, Peterson’s hired the plaintiff before he had any history of injury on the express understanding that he would not perform those duties. Further, there is also evidence that other service technicians either did not perform installations or did not take night shifts. Accordingly, a jury could credit the evidence that Peterson’s did not universally require it technicians to perform these duties in order to conclude that the company did not view those duties as essential.

 

IV

A Reasonable Jury Could Conclude That an Adverse Action Occurred

 

  1. The effective date of plaintiff’s termination was the same day his doctor cleared him to return to work after knee surgery. As such, the timing is enough for a reasonable jury to infer a causal connection between his disability (at least with respect to his record of and his regarded as claims), and the discharge.
  2. On remand, the district court will have to consider whether Peterson’s has put forward a legitimate, nondiscriminatory reason for firing the plaintiff, and whether the plaintiff has introduced sufficient evidence to show that the reason offered by Peterson’s, a business slow down during Covid-19 pandemic, was pretextual.

 

V

The Retaliation Claim Needs to Be Considered on Remand

 

  1. A retaliation claim is distinct from disability related claims.
  2. It is possible for a jury to determine that an employer was willing to accommodate plaintiff’s request for reduced hours and medical leave initially, but nevertheless terminated the plaintiff in retaliation for having availed himself of those accommodations. Similarly, plaintiff’s retaliation claims based upon a protected conduct of requesting an accommodation, does not depend on whether plaintiff’s knee injury qualified as a disability under the ADA.

 

VI

The Failure to Accommodate Claim Survives Summary Judgment

 

  1. To assert a claim for failure to accommodate, a plaintiff has to show that they: 1) have a disability within the meaning of the ADA; 2) are a qualified individual and that they can perform the essential functions of the job with or without an accommodation; and 3) the employer knew about plaintiff’s disability and did not reasonably accommodate it.
  2. To demonstrate that Peterson’s knew about plaintiff’s disability, plaintiff was required to make a sufficiently direct and specific accommodation requests and explain how the accommodation was linked to a disability.
  3. To establish that Peterson’s acted unreasonably, plaintiff must show that the proposed accommodation would have enabled him to perform the essential functions of a job, and also that, at least on the face of things, it would have been feasible for Peterson’s under the circumstances. If plaintiff satisfies that burden, Peterson’s must demonstrate that the accommodation would impose an undue hardship on the operation of the business in order to defeat the claim. Mere assertions by the defendant are not sufficient. Instead, the employer must produce at least some modicum of evidence of the asserted hardship, financial or otherwise.
  4. In the failure to accommodate process, the scope of the employer’s obligation is not crystal clear. However, the employer has at least some responsibility in determining the necessary accommodation since the regulations envision an interactive process requiring participation by both parties. An employer’s refusal to participate in the process may itself constitute evidence of a violation of the statute.
  5. Plaintiff gave adequate notice of a disability that needs accommodation when he explained that he was requesting a reduced schedule because his meniscus was torn pretty bad and he was in excruciating pain. In light of the parties prior discussions about plaintiff’s knee and his work schedule, that description was sufficiently direct and specific for a jury to conclude that Peterson’s was on notice that plaintiff was requesting a reduced work schedule because of his knee injury even in the absence of a Dr.’s note.
  6. Plaintiff made another request for reduced work schedule on December 18, 2019. That request was accompanied by a Dr.’s note explaining that plaintiff needed surgery.
  7. Plaintiff’s previous request not to do installation work and night shifts cannot be considered a part of his disability accommodation request because Peterson’s had agreed that Sutherland would not do this type of work when it offered him the job, well before his knee injury.
  8. Modified work schedules are examples of possible reasonable accommodations. As such, plaintiff’s request for a shorter work schedule was reasonable at least on the face of things.
  9. Plaintiff also showed that Peterson’s employee handbook define part-time employees as those who regularly work less than 30 hours per week and Peterson’s had a part-time employee on staff. As such, that evidence was sufficient to allow a factfinder to conclude that plaintiff’s request for an identical schedule was a reasonable one.
  10. On remand, the district court should consider whether Peterson’s actions amounted to a failure to engage in the interactive process under Massachusetts law, and whether that failure itself was a violation of the Massachusetts antidiscrimination law or at least evidence that Peterson’s acted unreasonably.

 

VII

Thoughts/Takeaways

 

  1. Temporary disabilities are protected under the ADA if they are a physical or mental impairment that substantially limits a major life activity.
  2. The EEOC regulations defining disability pass the Loper Bright test.
  3. Medical evidence is not always necessary for establishing whether a substantial limitation on a major life activity exists. It depends upon the physical or mental impairment.
  4. You can be protected under the ADA by having an actual disability, a record of a disability, OR being regarded as having a physical or mental impairment. Any of those work. It is possible that just one, two, or even all three will apply simultaneously.
  5. An employer’s judgment as to what essential functions of a particular job are is not dispositive. Courts will look under the hood so to speak. The extent they look under the hood can vary quite a bit.
  6. Timing between a reasonable accommodation request and an adverse action matters a great deal to many courts.
  7. Requesting an accommodation can serve as the basis for a retaliation claim.
  8. The court uses a bit of a different formulation for what is sufficient notice than I have seen in other cases. It talks about the notice having to be, “sufficiently direct and specific.” Magic words are not required but common sense is.
  9. In failure to accommodate cases, it is the responsibility of the plaintiff to show that a proposed accommodation would have enabled him to perform the essential functions of the job.
  10. Employer’s should always engage in the interactive process.
  11. Modified work schedules are examples of possible reasonable accommodations.
  12. Don’t forget that the cases are all over the place with respect to whether failure to accommodate is by itself an adverse action. As we discussed here, it is certainly looking like the law is headed towards a failure to accommodate by itself being an adverse action.

As promised, here is a blog entry on the Stanley oral argument. This blog entry will discuss the question that the various Justices asked to each of the attorneys presenting arguments to the Court. In the last section, I will give my thoughts on what transpired. The blog entry is a quick read, and so the reader will probably want to read the whole thing.

 

I

Questions Asked by the Justices to Stanley’s Attorney

 

  1. Justice Thomas and Justice Jackson started off by wondering whether the narrow way to resolve the case had been properly preserved. That is, the facts of this case are such that you could decide that the plaintiff was a qualified person with a disability while she was still working for her employer. She had developed Parkinson’s but worked for a while before having to retire. Plaintiff’s attorney and the Solicitor Gen. argued that this argument had been properly preserved below.
  2. Justice Jackson wanted to know if the plaintiff had made out a prima facie case of discrimination while she was still employed by her employer. If so, she wondered whether that would be post-employment discrimination not subject to the ADA arguably.
  3. Justice Alito wondered if the qualified requirement even applied to the situation where compensation and benefits were involved.
  4. Chief Justice Roberts sought clarification as to what qualified means with respect to Title I of the ADA.
  5. Justice Sotomayor wondered if Stanley’s argument would not open a big trapdoor expanding the reach of the ADA in a way that could be worrisome. She also wondered whether Stanley’s attorney agreed with the Solicitor General view that an employer discriminates against a retiree with respect to benefits she earned while she was a qualified individual.
  6. Justice Alito wondered quite a bit how courts would go about looking at cases like this since this case does not involve reasonable accommodations, which is the kind of case most courts are familiar with. In the discussion of this question, whether the ADA covers disparate treatment and the safe harbor for insurance making decisions came up.
  7. Justice Sotomayor wondered if not allowing people to pursue a claim with respect to retirement benefits they previously earned would not discourage people with disabilities from going into the workplace.
  8. Justice Sotomayor asked whether there were other laws that might serve as a remedy besides the ADA.
  9. Justice Jackson wondered if the facts of this case were such that the case didn’t necessarily involve just post-employment discrimination.

 

II

Questions Asked by the Justices to Solicitor Gen.

 

  1. Justice Thomas asked whether the narrow argument that the case could be decided upon was properly preserved below.
  2. Justice Alito wanted to know if the Lilly Ledbetter pay act was an alternative.
  3. Justice Alito wanted to know how a case like this would be decided by the courts since reasonable accommodations were not involved.
  4. Justice Kagan wanted to know if other discrimination laws might be applicable.
  5. Justice Alito wanted to know how this case gets considered in light of the fact that the Civil Rights Act and the ADA are fundamentally different in that the ADA is insisting on something different from equal treatment, at least with respect to reasonable accommodations.
  6. Justice Sotomayor wanted to know whether this case could be resolved under a disparate treatment theory. She also wanted to know if other laws might serve as a remedy.
  7. Justice Kagan wanted to know if the question they granted cert. on was really the right question, and whether they have the authority to decide the case in a different way. Justice Kavanaugh also expressed this concern as well.
  8. Justice Jackson wondered whether it was enough to move the case forward that Stanley was discriminated against during the period of her employment.

 

III

Questions Asked by the Justices to City of Sanford, Florida, Attorney

 

  1. Justice Thomas wanted to hear the City of Sanford’s view on just what was presented to the Court to decide and what was covered by the courts below. Justice Kagan had a similar question and wondered whether there were sufficient facts in the record and in the question presented below and how they were covered, so as to be able to decide the case on a narrower ground than what was presented for cert.
  2. Justice Jackson wanted to know if there was any dispute whether Stanley was disabled before she retired.
  3. Justice Jackson wanted to know if there was ever a remedy for a person disputing disparate treatment with respect to retirement benefits because they would not be eligible for the retirement benefits while they are working and would no longer be qualified once they stop.
  4. Justice Jackson wanted to know why the qualified individual even applied when compensation and benefits were involved when the ADA specifically says it covers discriminatory treatment and compensation and benefits. Also, as Justice Alito also noted, this is not a reasonable accommodation situation.
  5. Justice Jackson wanted to know why the ADA could not be handled the same way as civil rights cases are with respect to disparate treatment. The City pushed the argument here that everything revolves around “qualified,” as the critical factor.
  6. Justice Sotomayor wondered whether the City’s position meant that a retiree could never proceed under the ADA. She and Justice Jackson also wanted to know whether Stanley was qualified per the ADA at the time she got Parkinson’s.
  7. Justice Kagan wanted to confirm that Stanley was a qualified individual when the City adopted its policy and whether that was a critical question with respect to retirement benefits being taken away later in an allegedly discriminatory manner.
  8. Justice Alito wanted to know if a person’s would have standing to pursue an ADA claim if they develop a disability while employed and then decide to contest an allegedly discriminatory structure of retirement benefits.
  9. Chief Justice Roberts wanted to know if a breach of contract claim was viable.
  10. Justice Kavanaugh wanted to know if Medicare might play some role in the analysis of this case and what role that might be. Justice Sotomayor also wondered about that as well and whether it even made sense to have Medicare be a factor in how the case is decided.
  11. Justice Jackson wanted to confirm that a person is no longer subject to Title I of the ADA if they are no longer employed by the employer.
  12. Justice Kagan wondered whether the City’s position meant that there was no such thing as being able to sue in the time when a person was still working about a retirement benefit that is going to kick in when that person is no longer working.

 

IV

My Thoughts on the Oral Argument

 

  1. I have learned over the course of doing this blog that predicting decision based on oral arguments at the Supreme Court is a fools errand. That said, it would seem that persons with disabilities would have a right to be cautiously optimistic about this case turning out favorably.
  2. I am really surprised that nobody raised the question of whether Title II or Title III would also apply. It will be interesting to see whether this question will be discussed in the actual opinions by one of the Justices.
  3. A critical fact in this particular case may be that the policy was in effect while Stanley was still working. Another critical fact is that Stanley was working when she became disabled and worked for a time after that.
  4. The Supreme Court really seemed to struggle with the position of the City in the oral arguments. The City’s argument was basically that the retirement benefits having kicked in while she is working but wasn’t eligible for the retirement benefits until she stopped working. Then, once she stopped working she was no longer qualified. That view seemed a bit extreme to many of the Justices.
  5. Justice Gorsuch and Justice Barrett did not say anything during the course of the oral argument, so impossible to know what they might be thinking.
  6. I do not focus on the Lilly Ledbetter Pay Act in my law or consulting practice. So, it will be interesting to see how the Justices discuss the applicability of that law and whether that law is even applicable. It also won’t be surprising if the decision that comes down talks about the applicability of other laws (again, very curious about whether the other titles of the ADA will come into that discussion).
  7. Entirely possible that the decision that comes down will reiterate that when it comes to the ADA, three avenues exist: disparate impact; disparate treatment; and reasonable accommodations.
  8. As mentioned on Monday, i.e. the last blog entry before this one, it is pretty clear to me that Titles II or III could apply when it comes to retirement benefits being decided based upon a disability rather than through actuarial means. Accordingly, regardless of how this case comes down, employers would be wise as a matter of preventive law, to focus on the safe harbor and not on disability based decision-making when it comes to the structure of retirement benefits.

I wanted to tell everyone that my thoughts are with you with respect to weather-related disasters. California struggling terribly with the fires. The South got hit with winter storms. We had 4 inches of snow in Atlanta. Fortunately, it should all be gone by later this afternoon. Again, my thoughts are with everybody.

 

I wanted to discuss the upcoming argument the Supreme Court will hear on January 13, 2025, in the Stanley matter, which we discussed here. Here is what I will be looking for. Title I of the ADA is very much written in terms of whether the person is a current employee as are the final implementing regulations. Does that mean that Title I will not apply to a situation where a former employee allegedly has their benefits cut on the basis of their disability? It will be interesting to see the arguments on that. That said, I am also terribly curious to see if there is any discussion about the applicability of Title II and Title III to situations like this. Both of those titles are not written in terms of whether the person is an employee at that time. So, it is entirely possible that you could have a decision saying that Title I does not apply but Title II or Title III does apply, depending on whether a nonfederal governmental entity or a place of public accommodation is involved. The rest of the blog entry discusses my thought processes in more detail. Of course, I don’t exactly know how the argument is going to go. Also, this is completely my thinking process. I have not looked at any of the briefs that were placed before the Supreme Court. This is a real short blog entry and doesn’t divide neatly into our usual category types, so the reader will probably want to read the whole thing.

 

I

Title I is in Employee Centric Terms and So Does Not Apply

 

 

In order to be protected under Title I of the ADA you have to both be a person with a disability and qualified. Title I of the ADA at 42 U.S.C. §12111(8),  defines a qualified individual with a disability as: “an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” Similarly, 29 C.F.R. §1630.2(m) defines qualified as meaning: “an individual with a disability, means that the individual satisfies the requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position.” So, it is easy to see how an argument can be made that Title I would not apply to a former employee.

 

II

Title I Even Though It Is in Employee Centric Terms, Might Still Apply

 

Title I at 42 U.S.C. §12112(a), states: “No covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” So, it is quite clear that Title I of the ADA applies to compensation and to employee benefits.

 

The other argument that might be made is that at the time the benefit was received by the plaintiff, the plaintiff was entitled to get those benefits. Therefore, that status continues even after they are employed.

 

III

 

Title II of the ADA Has a Different Definition of Qualified

 

Title II of the ADA has a completely different definition of what qualified means. In particular 42 U.S.C. §12131(2) states: “The term “qualified individual with a disability” means an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.” Similarly, 28 C.F.R. §35.104 defines a qualified individual as: “an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.”

 

The statutory and regulatory phrasing are not tense specific as they are talking about whether a person is eligible for a particular program in that given moment and not with respect to a past situation.

 

IV

Title III of the ADA Does Not Even Contain the Word Qualified

 

Title III of the ADA does not even use the word qualified. However, I don’t know how that term cannot play a role considering the concepts of undue burden and fundamental alteration contained in Title III.

 

Also: 1) Title III of the ADA at 42 U.S.C. §12182(a) states: “No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation;” 2) 42 U.S.C. §12182(b)(1)(A)(ii) states: “It shall be discriminatory to afford an individual or class of individuals, on the basis of a disability or disabilities of such individual or class, directly, or through contractual, licensing, or other arrangements with the opportunity 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. §12182(b)(1)(D) states: An individual or entity shall not, directly or through contractual or other arrangements, utilize standards or criteria or methods of administration—(i) that have the effect of discriminating on the basis of disability;” and 4) Similar language can be found in 28 C.F.R. Part 36, DOJ’s final implementing regulations for Title III. A plain reading of all the statutory provisions of Title III clearly suggests that a former employee would be able to pursue a claim under Title III if a private entity did something similar to the public employer in Stanley.

 

V

Conclusion

 

I strongly suspect that grammar will play a big role in the argument. What I am incredibly curious about is whether any of the Supreme Court Justices will zero in on how the other titles of the ADA could very well apply even if Title I of the ADA does not. I do not know why this case was structured as a Title I case and not as a Title II case, since a nonfederal governmental entity is involved. One possibility is that lawyers are specialists and may not have been all that familiar with the other titles. The more likely possibility, given the economics of law practice, is that the remedies are much more inviting with respect to Title I than they are with respect to Title II, especially after Cummings, which we discussed here. The transcript of the Supreme Court oral argument comes out in the late afternoon of argument day, so I will be very interested to read the transcript. My next blog entry after this one will be an entry discussing the oral argument. I am hoping to get that up this week, but my schedule is pretty packed.

Happy new year everyone!

 

Today’s blog entry looks at the DOT final rule issued last month on ensuring safe accommodation for air travelers with disabilities using wheelchairs. We previously blogged on the proposed rule in the blog entry on March 18, 2024, here. This blog entry is set up similarly to that blog entry by dividing itself into the categories of: actual regulations themselves (I couldn’t figure out how to copy and paste the summary section of the regulations into this blog entry), and thoughts/takeaways (in the thoughts/takeaways section our main focus is going to be on the communication provisions, which is obviously personal to me. I realize that I am siloing here, and I apologize for that. However, it is the area that I am personally most familiar with).

 

I

Actual Regulations

 

Subpart A—General Provisions

  1. Amend § 382.3 by adding in alphabetical order definitions for “Custody”, “Dignified”, “Hands-on training”, “Mishandled”, and “Safe” to read as follows:

What do the terms in this rule mean?

* * * * *

Custody means the time period when a passenger has checked a wheelchair, scooter, or other assistive device with a carrier and the carrier has control of a passenger’s wheelchair, scooter, or other assistive device.

(1) An airline’s custody begins when the passenger hands the device to an airline’s representative or agent or leaves the wheelchair, scooter, or other assistive device at a location as instructed by the airline.

(2) An airline’s custody ends when the passenger, or someone acting on behalf of the passenger, or another airline takes physical possession of the wheelchair, scooter, or other assistive device.

* * * * *

Dignified means assistance provided in a manner that respects a passenger’s independence, autonomy, and privacy, which includes but is not limited to: airline personnel providing transfer assistance in a manner that ensures the passenger’s clothing is not removed; airline personnel not unduly delaying requests for access to a restroom such that the individual soils himself or herself; and, to the maximum extent possible, airline personnel communicating directly with the individual with disability ( e.g., rather than his or her companion or another individual) when the individual with disability is interacting with them.

* * * * *

Hands-on training means in-person training that is received by an employee or contractor where the employee or contractor can learn and practice real-life scenarios in a safe and controlled environment without the possibility of real-life consequences to passengers with disabilities and with the use of a suitable life-sized model or equipment, as appropriate.

* * * * *

Mishandled means lost, delayed, damaged, or pilfered.

* * * * *

Safe means assistance provided to individuals with disabilities that does not put them at heightened risk of bodily injury, which may include loss or damage to wheelchairs and other assistive devices that result in bodily injury.

* * * * *

Subpart B—Nondiscrimination and Access to Services and Information

  1. In § 382.11, redesignate paragraph (b) as paragraph (c) and add new paragraph (b) to read as follows:

What is the general nondiscrimination requirement of this part?

* * * * *

(b) As a carrier or an indirect carrier, the assistance you provide with respect to this part must be performed in a safe and dignified manner.

* * * * *

Subpart C—Information for Passengers

  1. Revise § 382.41 to read as follows:

What flight-related information must carriers provide to qualified individuals with a disability?

(a) As a carrier, you must provide the following information, on request, to qualified individuals with a disability or persons making inquiries on their behalf concerning the accessibility of the aircraft expected to make a particular flight. The information you provide must be specific to the aircraft you expect to use for the flight unless it is unfeasible for you to do so ( e.g., because unpredictable circumstances such as weather or a mechanical problem require substitution of another aircraft that could affect the location or availability of an accommodation). The required information is:

(1) The specific location of seats, if any, with movable armrests ( i.e., by row and seat number);

(2) The specific location of seats ( i.e., by row and seat number) that the carrier, consistent with this part, does not make available to passengers with a disability ( e.g., exit row seats);

(3) Any aircraft-related, service-related or other limitations on the ability to accommodate passengers with a disability, including limitations on the availability of level-entry boarding to the aircraft at any airport involved with the flight. You must provide this information to any passenger who states that he or she uses a wheelchair for boarding, even if the passenger does not explicitly request the information.

(4) Any limitations on the availability of storage facilities, in the cabin or in the cargo bay, for mobility aids or other assistive devices commonly used by passengers with a disability, including storage in the cabin of a passenger’s wheelchair as provided in §§ 382.67 and 382.123;

(5) Information regarding accessibility of lavatories ( see § 382.63(h)); and

(6) The types of services to passengers with a disability that are or are not available on the flight.

(b) As a carrier, you must publish information in a prominent and easily accessible place on your public-facing website(s) describing the relevant dimensions and other characteristics of the cargo holds of all aircraft types you operate, including the dimensions of the cargo hold entry, that would limit the size, weight, and allowable type of cargo.

Subpart E—Accessibility of Aircraft

  1. In § 382.65, revise paragraph (h) to read as follows:

* * * * *

(h)(1) If you replace an on-board wheelchair supplied on aircraft with an FAA-certificated maximum seating capacity of 125 or more after October 2, 2026, then you must replace it with an on-board wheelchair that meets the standards set forth in paragraph (e) of this section.

(2) After October 2, 2026, if you purchase or otherwise obtain a new on-board wheelchair for use on aircraft with more than 60 passenger seats, it must meet the standards set forth in paragraph (e) of this section.

(3) Any on-board wheelchair supplied on aircraft with an FAA-certificated maximum seating capacity of more than 60 passenger seats and that has an accessible lavatory and that was delivered after October 2, 2026, must meet the standards set forth in paragraph (e) of this section.

(4) After October 2, 2031, any on-board wheelchair that you provide for passengers’ use on aircraft with more than 60 passenger seats must meet the standards set forth in paragraph (e) of this section.

(5) For purposes of paragraphs (h)(2) through (4) of this section, you must acquire OBWs that comply with as many of the safety and accessibility requirements in paragraph (e) of this section as are available. You must inform the Department at the address cited in 14 CFR 382.159 that an on-board wheelchair meeting that requirement is unavailable, if that is the case.

Subpart G—Boarding, Deplaning, and Connecting Assistance

  1. Section 382.89 is added to subpart G to read as follows:

How timely must the service required under this Subpart be provided by carriers to passengers with disabilities?

(a) As a carrier, the assistance you provide with respect to this subpart must be performed in a prompt manner.

(b) Whether the assistance is prompt is dependent on the totality of the circumstances, except, for as set forth in paragraph (c) of this section.

(c) Prompt assistance for a person who uses a boarding chair ( i.e., aisle chair) in deplaning means:

(1) Personnel and boarding chair must be available to deplane the passenger when the last passenger who did not request deplaning assistance departs the aircraft;

(2) The passenger’s personal wheelchair must be available as close as possible to the door of the aircraft to the maximum extent possible, except:

(i) Where this practice would be inconsistent with Federal regulations governing transportation security or the transportation of hazardous materials; or

(ii) When the passenger requests the wheelchair be returned at a location other than the door of the aircraft; and

(3) When a passenger’s personal wheelchair is not available at the door of the aircraft for the reasons set forth in paragraph (c)(2) of this section, an airport wheelchair must be available as close as possible to the door of the aircraft for the passenger’s use.

  1. In § 382.95, revise paragraph (a) to read as follows:

What are carriers’ general obligations with respect to boarding and deplaning assistance?

(a) As a carrier, you must provide or ensure the provision of assistance requested by or on behalf of passengers with a disability, or offered by carrier or airport operator personnel and accepted by passengers with a disability, in enplaning and deplaning. This assistance must include, as needed, the services of personnel and the use of ground wheelchairs, accessible motorized carts, boarding wheelchairs, and/or on-board wheelchairs where provided in accordance with this part, and ramps or mechanical lifts.

* * * * *

Subpart I—Stowage of Wheelchairs, Other Mobility Aids, and Other Assistive Devices

  1. In § 382.125, add paragraphs (e) and (f) to read as follows:

What procedures do carriers follow when wheelchairs, other mobility aids, and other assistive devices must be stowed in the cargo compartment?

* * * * *

(e) You must notify passengers in writing when they check wheelchairs or scooters to be stowed in the baggage compartment that they have the right to contact a CRO, how they can contact a CRO, and the right to file a claim with the airline if their wheelchairs or scooters are mishandled while in your custody. You must provide this notification in an accessible format for individuals with disabilities.

(f)(1) You must notify passengers with disabilities, before the aircraft cabin door closes, whether their wheelchairs or scooters have been loaded in the cargo compartments of their flights, including whether their device could not fit on the passenger’s scheduled flight because of its size or weight.

(2) If a passenger’s wheelchair or scooter is not loaded on his or her scheduled flight for whatever reason, you must offer to disembark the passenger and rebook them at no additional cost on the next available flight operated by you or a partner carrier. In addition, when you become aware that a passenger’s wheelchair or scooter does not fit on the passenger’s scheduled flight, if that is the case, you must offer to rebook the passenger at no additional cost on the next available flight operated by you or a partner carrier where the wheelchair or scooter will fit, if such an aircraft is available.

(3) You must notify passengers with disabilities, before they deplane, when their wheelchairs or scooters have been unloaded from the cargo compartments of their flights upon arrival.

(4) You must provide the notifications required by paragraphs (f)(1) and (3) of this section in an accessible format for individuals with disabilities.

  1. Section 382.130 is added to read as follows:

What are the handling requirements for wheelchairs, scooters, other mobility aids, and other assistive devices and what obligations apply when wheelchairs or other assistive devices are mishandled?

(a) You must return checked wheelchairs, scooters, other mobility aids, and other assistive devices to the passenger in the condition in which you received them. Whenever a passenger’s checked wheelchair, scooter, other mobility aid, or other assistive device that was in your custody is not returned to the passenger in the same condition it was received, there is a rebuttable presumption that you mishandled the passenger’s wheelchair, scooter, other mobility aid, or other assistive device in violation of the ACAA.

(1) The presumption of a violation in this paragraph (a) can be overcome if you can successfully demonstrate that the alleged mishandling of the wheelchair, scooter, other mobility aid, or other assistive device did not occur while the wheelchair, scooter, other mobility aid, or assistive device was in your control and custody ( e.g., the damage occurred before the passenger checked the wheelchair, scooter, other mobility aid, or assistive device; the damage occurred after you returned the wheelchair, scooter, other mobility aid, or assistive device to the passenger) or that the passenger’s claim is false or fraudulent.

(2) The presumption of a violation in this paragraph (a) cannot be overcome by demonstrating that the mishandling of a checked wheelchair, scooter, other mobility aid, or other assistive device is the result of “an act of God” or other circumstances beyond the control of the airline.

(b) When you become aware that a passenger’s wheelchair or scooter has been mishandled ( i.e., your personnel notices that the wheelchair or assistive device has been mishandled or the passenger notifies airline personnel of the mishandling of the wheelchair or assistive device, whichever occurs first), you must immediately notify the impacted passenger in writing of his or her rights to file a claim with the carrier, to receive a loaner wheelchair or scooter from the carrier with certain customizations described in paragraph (e) of this section, to choose a preferred vendor for repairs or replacement of the device, and to have a Complaints Resolution Official (CRO) available and be provided information on how to contact the CRO. You must provide this notification in an accessible format for individuals with disabilities.

(c)(1) When a passenger’s checked wheelchair or scooter has been delayed while in your custody, you must ensure that the device is transported to the passenger’s final destination within 24 hours of the passenger’s arrival for domestic flights and short international flights between the United States and a foreign point that is 12 hours or less in duration and within 30 hours of the passenger’s arrival for long international flights between the United States and a foreign point that is more than 12 hours in duration. You must transport the delayed device by whatever means are available to safely do so.

(2) You must provide passengers a choice between picking up the delayed wheelchair or scooter at the passenger’s final destination airport or having the delayed wheelchair or scooter delivered to a reasonable location requested by the passenger, such as the passenger’s home or hotel. Depending on the passenger’s choice, the delayed wheelchair or scooter is considered to be provided to the passenger either when the passenger or another person authorized to act on behalf of the passenger picks up the delayed wheelchair or scooter at his or her destination airport or when you deliver the delayed wheelchair or scooter to the passenger or another person authorized to act on behalf of the passenger at a reasonable location requested by the passenger, such as the passenger’s home or hotel.

(3) If a passenger files a claim with you for a delayed wheelchair or scooter, you must provide them updates when there is a status change for the delayed device.

(4) In consultation with disability rights organizations, you must establish and provide safe and adequate seating accommodations at the airport to be used by individuals with disabilities who are waiting for delayed personal wheelchairs or scooters or waiting for loaner wheelchairs or scooters after a passenger’s wheelchair or scooter is mishandled by you and cannot be promptly returned.

(5) You must reimburse passengers for the cost(s) of any transportation to or from the airport that the passenger incurred as a direct result of you delaying the passenger’s wheelchair or scooter. You may require passengers to submit documentation that substantiates the cost(s), such as receipts or invoices, to receive reimbursement.

(d) When a passenger’s checked wheelchair or scooter has been lost, damaged, or pilfered while in your custody, you must:

(1) Provide the passenger a reasonable timeframe to inspect the wheelchair or scooter and to file a claim with the carrier for the mishandling;

(2) Provide the passenger the following options if repair or replacement is needed:

(i) The passenger may file a claim with you and elect for the carrier to handle the repair or replacement of the wheelchair or scooter. If the passenger selects this option, you must promptly repair or replace the wheelchair or scooter, with a device of equivalent or greater function and safety, and pay the cost of repair or replacement; or

(ii) The passenger may file a claim with you and elect to use the passenger’s preferred vendor to repair or replace the wheelchair or scooter. If the passenger selects this option, you are responsible for promptly transporting the passenger’s wheelchair or scooter to the passenger’s preferred vendor, unless the passenger has indicated that he or she will arrange for the transport themselves, and for directly paying the cost of transport and repair or replacement, with a device of equivalent or greater function and safety; and

(3) Promptly review all claims received within a reasonable time of the repaired or replaced wheelchair or scooter being returned to the passenger alleging that the provided repairs were not sufficient. If the passenger’s claim is warranted and the initial repairs were insufficient, then you must promptly repair or replace the device to the passenger’s satisfaction.

(e) While the passenger is waiting for his or her mishandled personal wheelchair or scooter to be returned, repaired, or replaced, you must use your best efforts to work with the passenger and to provide an adequate loaner wheelchair or scooter that meets the passenger’s functional, mobility-related and safety-related needs, to the maximum extent possible. You must pay for the cost of the loaner wheelchair or scooter. If the loaner wheelchair or scooter you offer does not meet the passenger’s functional and safety-related needs as well as the passenger’s existing device, the passenger may find and secure an alternative loaner wheelchair or scooter that is better than the one you offered, and you must reimburse the passenger for the cost of that loaner within 30 days of the passenger’s request. You may require the passenger to provide documentation substantiating the cost, such as receipts or invoices, to receive the reimbursement.

(f) The liability limits for carriers under the Montreal Convention will apply if the wheelchair or scooter mishandling occurs on an international flight.

  1. Section 382.132 is added to read as follows:

What requirements apply when a passenger who uses a wheelchair or scooter cannot purchase a certain flight because his or her wheelchair or scooter will not fit in the cabin or cargo compartment of the aircraft for that flight?

(a) As part of your obligation under § 382.11 to not exclude a qualified individual with a disability from or deny the person the benefit of any air transportation or related services that are available to other persons, to the extent a passenger who uses a wheelchair or scooter cannot book his or her preferred flight because his or her wheelchair or scooter cannot fit in the cabin or cargo compartment of the aircraft of the preferred flight, and the passenger must book a more expensive flight that can accommodate the passenger’s wheelchair or scooter, you must, upon request, reimburse the passenger the difference between the more expensive flight the passenger purchased and had to take and the preferred flight that the passenger would have purchased and taken if his or her wheelchair or scooter had been able to fit.

(b) As a condition for issuing reimbursements in paragraph (a) of this section, you may require the following from passengers with disabilities:

(1) The preferred flight and the more expensive flight are on the same airline;

(2) The preferred flight and the more expensive flight are on the same day;

(3) The preferred flight and the more expensive flight have the same origin and destination;

(4) Reasonable documentation to verify: the dimensions of the passenger’s wheelchair or scooter; the cost of the passenger’s preferred flight that could not accommodate the passenger’s wheelchair or scooter; and the cost of the more expensive flight the passenger purchased and had to take.

(c) You must provide the reimbursement required by paragraph (a) of this section within 30 days of receiving a request and the reasonable documentation permitted in paragraph (b) of this section, if you require such documentation.

(d) You must disclose on your website accurate information on the documentation you require from the passenger to support a reimbursement claim.

Subpart J—Training and Administrative Provisions

  1. Revise § 382.141 to read as follows:

What training are carriers required to provide for their personnel ( i.e., employees and contractors)?

(a) As a carrier that operates aircraft with 19 or more passenger seats, you must ensure training, meeting the requirements of this paragraph, for all personnel who interact with the traveling public or who handle passengers’ assistive devices, as appropriate to the duties of each employee or contractor.

(1) General. You must ensure training to proficiency concerning:

(i) The requirements of this part and other applicable Federal regulations affecting the provision of air travel to passengers with a disability;

(ii) Your procedures, consistent with this part, concerning the provision of air travel to passengers with a disability, including the proper and safe operation of any equipment used to accommodate passengers with a disability; and

(iii) Your procedures that safeguard the safety and dignity of passengers with disabilities when providing service required under this part.

(2) Communication. You must ensure employees and contractors who interact with the traveling public are trained with respect to awareness of different types of disabilities, including how to distinguish among the differing abilities of individuals with disabilities.

(i) You must ensure such employees and contractors are trained on appropriate ways to communicate and interact with passengers with disabilities, including persons with physical, sensory, speech, mental, intellectual, or emotional disabilities ( e.g., communicating directly with the individual with a disability instead of to the travel companion/interpreter).

(ii) You must also ensure such employees and contractors are trained to recognize requests for effective communication accommodation from individuals who have disabilities impacting communication ( e.g., hearing or vision impaired individuals, non-verbal individuals), and to use the most common methods for communicating with these individuals that are readily available, such as writing notes or taking care to enunciate clearly, for example. Training in sign language is not required. You must also train these employees to recognize requests for communication accommodations from deaf-blind passengers and to use established means of communicating with these passengers when they are available, such as passing out Braille cards if you have them, reading an information sheet that a passenger provides, or communicating with a passenger through an interpreter, for example.

(3) Physical assistance. You must ensure that employees and contractors who provide physical assistance to passengers with disabilities who use wheelchairs or scooters are trained in the matters listed in paragraphs (a)(1) and (2) of this section, and the following, as appropriate to the duties of each person:

(i) Hands-on training concerning safe and dignified physical assistance, including: transfers to and from personal or airport wheelchairs, aisle chairs, and aircraft seats; proper lifting techniques to safeguard passengers; how to troubleshoot common challenges in providing physical assistance; and proper use of equipment used to physically assist passengers with disabilities; and

(ii) Other training concerning the collecting and sharing of passenger information, such as Special Service Request (SSR) codes, needed to ensure safe, dignified, and prompt physical assistance, and effective communications with passengers with mobility disabilities, or their companion if direct communication with the individual with a disability is not possible.

(iii) As part of this training, the employees and contractors must be able to successfully demonstrate their knowledge on the matters listed in paragraphs (a)(3)(i) and (ii) of this section ( e.g., competency assessments or certification exams).

(4) Handling of wheelchairs and scooters. You must ensure that employees and contractors who handle passengers’ wheelchairs or scooters are trained in the matters listed in paragraphs (a)(1) and (2) of this section, and the following, as appropriate to the duties of each person:

(i) Hands-on training concerning common types of wheelchairs and scooters and their features, airport and airline equipment used to load and unload wheelchairs and scooters, and methods for safely moving and stowing wheelchairs, including lifting techniques, wheelchair disassembly, reconfiguration, and reassembly, and securement in the cargo compartment of the aircraft; and

(ii) Other training concerning the collecting and sharing of information regarding a passenger’s wheelchair or scooter, including using any airline wheelchair handling form(s) that may exist, to ensure the safe and proper handling of such assistive devices, and effective communications with passengers with mobility disabilities, or their companion if direct communication with the individual with a disability is not possible.

(iii) As part of this training, the employees and contractors must be able to successfully demonstrate their knowledge on the matters listed in paragraphs (a)(4)(i) and (ii) of this section ( e.g., competency assessments or certification exams).

(5) Consulting with disability rights organizations. You must consult with organizations representing individuals with disabilities in your home country when developing your training program and your policies and procedures. When making changes to such training programs and related policies and procedures that will have a significant impact on assistance provided to individuals with disabilities, you must consult with organizations representing individuals with disabilities who would be affected by those changes. If such organizations are not available in your home country, you must consult with individuals with disabilities and/or international organizations representing individuals with disabilities.

(6) Training frequency. You must ensure that all personnel who are required to receive training receive refresher training on the matters covered by this section, as appropriate to the duties of each employee and contractor, as needed to maintain proficiency. The training program must describe how proficiency will be maintained.

(i) All personnel who provide physical assistance to passengers with disabilities must receive initial training described in paragraph (a)(3) of this section by June 17, 2026, and at least once every twelve months thereafter. All personnel who provide physical assistance to passengers with disabilities hired after June 17, 2026, must receive initial training described in paragraph (a)(3) of this section prior to assuming their duties and at least once every twelve months thereafter.

(ii) All personnel who handle passengers’ wheelchairs or scooters must receive initial training described in paragraph (a)(4) of this section by June 17, 2026, and at least once every twelve months thereafter. All personnel who handle passengers’ wheelchairs or scooters hired after June 17, 2026, must receive initial training described in paragraph (a)(4) of this section prior to assuming their duties and at least once every twelve months thereafter.

(iii) All other personnel must receive training prior to assuming their duties and at least once every three years thereafter.

(7) Contractors. You must provide, or ensure that your contractors receive, training concerning travel by passengers with disabilities. This training is required only for those contractors who interact directly with the traveling public or who handle passengers’ assistive devices, and it must be tailored to the employees’ functions. Training for contractors must meet the requirements of paragraphs (a)(1) through (6) of this section.

(8) Complaint Resolution Officials (CROs). The employees you designate as CROs, for purposes of § 382.151 of this part, must receive training concerning the requirements of this part, including the training described in paragraphs (a)(3) and (4) of this section and the duties of a CRO prior to assuming their duties as a CRO and at least once every twelve months thereafter.

(b) If you are a carrier that operates only aircraft with fewer than 19 passenger seats, you must ensure that your employees and contractors who directly interact with the traveling public are trained, as appropriate to their duties, to ensure that they are familiar with the matters listed in paragraph (a)(1) of this section, as well as to ensure they are knowledgeable on how to communicate with individuals with differing disabilities, how to physically assist individuals with mobility disabilities, and how to properly handle passengers’ wheelchairs and scooters.

 

 

III

Thoughts/Takeaways

 

  1. It is a final rule and goes into effect on January 16, 2025, which is coming up. However, after Loper Bright, which we discussed here, unclear how much deference a court will give to these final rules assuming any disputes arise. I will say that Supreme Court opinions have said that the ACAA regulations completely preempt the field. So, a good possibility exists that a court would give deference to these regulations even after Loper Bright.
  2. The terms “custody,” “dignified,” “hands-on training,” “mishandled,” and “safe,” are all defined in the final regulations.
  3. Wheelchair users as well as air carriers will really want to do a deep dive into this final rule.
  4. The communication requirements of this final rule are quite a bit different than what is required by the DOJ final rules with respect to Titles II and III of the ADA. In particular, the following is particularly worth noting: a) employees and contractors who interact with the traveling public must be trained to respect and be aware of the different types of disabilities, including how to distinguish among differing abilities of individuals with disabilities. “Differing abilities,” hits me the wrong way. I find it a bit patronizing, and it is also meaningless. After all, everyone has abilities, even persons without disabilities. Instead, DOT would’ve been better off saying something along the lines of, “differences among individuals with disabilities,” rather than the phrasing it uses.
  5. Employees and contractors must be trained on appropriate ways to communicate and interact with passengers with disabilities. For example, communicating directly with the individual with a disability instead of the traveling companion/interpreter. I don’t have a problem with this particular requirement.
  6. Employees and contractors must be trained to recognize requests for effective communication accommodations from individuals who have disabilities impacting communication and to use the most common methods for communicating with these individuals that are readily available, such as writing notes or taking care to enunciate clearly, for example. Training in sign language is not required. My concern here is that the regulation is talking out of both sides of its mouth so to speak. That is, on the one hand, it says effective communication is a concern. On the other hand, it most definitely says that effective communication is not the standard. For those who are culturally deaf writing notes and enunciating clearly is not going to do the trick (in addition to being ineffective, it could be aggravating and patronizing as well), but yet that kind of communication is perfectly allowable under the final rule.
  7. Air carriers must also train employees to recognize requests for communication accommodations from deaf-blind passengers and use establish means of communicating with these passengers when they are available, such as passing out braille cards if available, reading an information sheet that a passenger provides, or communicating with the passenger through an interpreter. My thoughts on this are that it appears deaf-blind passengers may or may not have higher regulatory requirements than Deaf passengers. I can tell you from my personal experience and my review of the Air Carrier Access Act regulations, that there is actually very little air carriers have to do with respect to accommodating those in the hearing loss community when it comes to their operations.
  8. Training is now required to be at least once per year and employees have to demonstrate their knowledge on that training.
  9. Personal injury attorneys, whether they be on the plaintiff side or on the defense side, need to pay attention to the final rule definitions of “safe,” and “dignified.” As a result of the confluence of the Airline Deregulation Act, state personal injury laws, Supreme Court opinions, and the Air Carrier Access Act, the liability standards when a personal injury occurs while a person is in control of the air carrier are those contained in the ACAA final regulations (I have actually consulted on three of these kinds of cases in the past).
  10. Airlines when publishing in prominent and easily accessible places on their public websites information describing the relevant dimensions and other characteristics of the cargo holds of all aircraft types operated by the airline, should make sure that particular information is accessible to those who use screen readers and voice dictation technology.
  11. Airlines will have to definitely step up their game so to speak with respect to notifying persons who are wheelchair users just what is happening with their wheelchairs and making sure that any delays are promptly dealt with. Again, I highly recommend studying the final rule in detail if you are a wheelchair user or an air carrier as there is a lot to digest.
  12. When it comes to training, organizations representing individuals with disabilities must be consulted with. If no such organizations exist, it is permissible to consult with individuals with disabilities and/or international organizations representing individuals with disabilities.

Before getting started on the blog entry of the week (I had a few hours to myself and I find writing blog entries relaxing, NK), I want to wish everyone a Merry Christmas, happy Hanukkah, happy holidays, and a happy new year.

In 2015, Department of Justice issued a guidance entitled, “frequently asked questions about service animals and the ADA,” which I blogged on here. The DOJ document was revised in 2020, here. Since it has been so long from the original blog entry and things have evolved since then, I thought I would revisit the DOJ frequently asked questions when it comes to service animals. Like last time, I thought I would go over and highlight some of the questions discussed in the guidance. I am not going to go over every question-and-answer in the guidance, but will highlight some of them. Accordingly, the number that appears below may not match up with the number of the question in the DOJ document. By clicking on the link above, the reader can see all of the questions. What I have done here, is list the question that the DOJ asks (for sake of convenience, I have sometimes combined questions and rephrased them without changing the substance), and then I offer my own thoughts.

  1. What is a service animal?

DOJ: Under the ADA, a service animal is defined as a dog that has been individually trained to do work or perform tasks for an individual with a disability. The tasks performed by the dog must be directly related to the person’s disability.

My thoughts:

  1. A) It is absolutely true that a service animal is a dog. However, miniature horses get much the same protection, but they are not referred to in the regulations as a service animal.
  2. B) As we have discussed here for example, one of the hot issues at the moment it is whether the disability being accommodated or whether it is the essential functions of the job. The answer makes a great deal of difference when it comes to service animals. As I have said, the better view and certainly the better preventive law view, is that it is the disability being accommodated and not the essential functions of the job.
  3. What does do work or perform tasks mean?

DOJ: The dog must be trained to take a specific action when needed to assist the person with a disability. For example, a person with diabetes may have a dog that is trained to alert him when his blood sugar reaches high or low levels. A person with depression may have a dog that is trained to remind her to take her medication. Or, a person who has epilepsy may have a dog that is trained to detect the onset of a seizure and then help the person remain safe during the seizure.

My thoughts:

  1. The easy way to think of this is whether the dog is trained to engage in recognition and response and it is related to the person’s disability. It is important to remember that anybody can train the dog.

 

 

  1. What questions can a covered entity’s employees ask to determine if a dog is a service animal?

DOJ: In situations where it is not obvious that the dog is a service animal, staff can only ask two specific questions: 1) is the dog is a service animal required because of a disability? And 2) what work or tasks had the dog been trained to perform? Staff are not allowed to request any documentation for the dog, require that the dog demonstrate a task, or inquire about the nature of the person’s disability. [italics mine]

My thoughts:

  1. A) On the one hand, DOJ is saying that a task performed by the dog must be directly related to the person’s disability. On the other hand, DOJ is saying that where it is not obvious that the dog is a service animal, staff is not allowed to inquire about the nature of the person’s disability. So, it is up to the receiver of the information to make the connection between the work or task(s) the dog does and the person’s disability.
  2. B) The key with trying to figure out whether an animal is a service dog is determining whether it has been trained to engage in recognition and response. If it is, then it is a service dog. If it is just a matter of providing comfort for a person with a disability, then it is not a service animal.
  3. C) DOJ has a separate publication entitled ADA Requirement: Service Animals, here. That document illustrates just how confusing things can get with respect to what you can ask with respect to a dog where it is not obvious it is a service animal. In particular, the ADA requirement: service animals document says, “when it is not obvious what service an animal provides, only limited inquiries (emphasis mine), are allowed. Staff may ask two questions (emphasis mine):…” Inquiries are not the same as questions. The DOJ final implementing regulations uses the term, “inquiries, here.” As such, the regulations will clearly trump a contradictory DOJ guidance. So, if the inquiries are limited to determining whether the dog is an animal required because of a disability and what work or tasks the dog had been trained to perform, more than two questions are arguably allowed.
  4. D) In the ADA Requirement: Service Animals document and in the DOJ Frequently Asked Questions Document, the first question is listed as is, “the dog a service animal required because of a disability.” This question as phrased makes no sense because you are trying to figure out whether the dog is a service animal in the first place. So, the question that makes sense to ask is whether the dog is an animal required because of a disability taking out the adjective, “service.” After all, how can you say a dog is not a service dog based upon information received if the question asked already presupposes a service dog?

E) Service dogs are the only ones protected by the ADA and the Air Carrier Access Act for that matter. However, emotional support animals and assistance animals, see this blog entry, are protected by the FHA. Finally, it is not unusual to see facilities with dogs specifically trained to help others deal with stressful situations. For example, it is not unheard of for courts to have dogs to help alleviate the stress of those having to utilize the court system. Such dogs may be called facility dogs or even therapy dogs. Another example, is hospitals often have facility or therapy dogs working for them. Depending upon the state, facility or therapy dogs may have protections, but you won’t find those protections in the ADA.

 

4. Does the ADA require a service animal to be professionally trained?

DOJ: No. People with disabilities have the right to train the dog themselves and are not required to use a professional service dog training program.

My thoughts: Make sense. Training an animal to be a service dog is extraordinarily expensive. Some entities will give the dogs away for free, but most service dogs cost an incredible amount of money, which many people can’t afford. Also, depending upon the disability and the breed of dog, training a dog to be a service dog may be something that is easily doable. For example, I have a miniature poodle, and I trained him to alert me to sounds when I am in the house. He has also been trained to help alleviate stressful situations that may arise as well. I don’t actually use him outside of the house (I was actually told by someone that it is not unusual for those in the hearing loss community with service animals to use their service animal in that way). Just because I don’t take him everywhere with me, doesn’t mean it is not a service dog.

  1. Who is responsible for the care and supervision of a service animal?

DOJ: The handler is responsible for caring for and supervising the service animal, which includes toileting, feeding, and grooming and veterinary care. Covered entities are not obligated to supervise or otherwise care for a service animal.

My thoughts: This is all absolutely true. However, covered entities are required to make reasonable accommodations to a handler with a service animal as discussed here.

  1. Can hotels assign designated rooms for guests with service animals, out of consideration for other guests?

DOJ: No. A guest with a disability who uses a service animal must be provided the same opportunity to reserve any available room at the hotel as other guests without disabilities. They may not be restricted to “pet friendly” rooms.

My thoughts: Every time I read this, I do my best not to go ballistic. If this argument is true, then a deaf person should have the absolute right to insist on a room in a hotel that a nondisabled person could stay in and insist on portable equipment put in so that a deaf person could access the room. Instead, many hotels segregate all persons with disabilities, including the deaf, into certain rooms. A practice that drives me absolutely batty, especially since many of those “deaf accessible,” rooms are in fact not accessible.

  1. Does the ADA require the service animal be certified as service animals?

DOJ: No. Covered entity may not require documentation, such as proof that the animal has been certified, trained, or licensed as a condition for entry.

My thoughts: Requiring certification of service animals from what I can gather happens quite frequently. In fact it is such a common occurrence from what I can gather, that it is not unusual for people with service dogs to carry the certification documentation on them.

  1. My city requires me to register my dog as a service animal. Is this legal under the ADA? Can the service animal be any breed of dog and if so, must the municipality adjust if they have an ordinance restricting certain breeds of dogs?

DOJ: Mandatory registration of service animals is not permissible under the ADA. However, service animals are subject to the same licensing and vaccination rules applicable to all dogs.

DOJ: A service animal can be any breed of dog and municipalities, must make an exception if a prohibited breed is a service animal.

My thoughts: Readers may also want to check out this blog entry of mine with respect to these issues.

  1. When can service animals be excluded?

DOJ: The service animal can be excluded if including the service animal results in a fundamental alteration to the goods, services, program, or activities provided to the public; overrules legitimate safety requirements; or if a particular service animal is not housebroken or out of control and the handler does not take effective action to control it. The DOJ goes on to explain in a separate question that under control often means the service animal is harnessed, leased, or tethered while in public places unless those devices interfere with the service animal’s work or the person’s disability prevents use of the devices. In that case, voice signals or other effective means to maintain control of the animal are in order. Under control also means that the dog should not be allowed to bark repeatedly in a lecture hall, theater, library, or other quiet place. However, barking once or barking a lot because it has been provoked does not mean that the dog is out of control.

My thoughts: I don’t see why the barking exception needs to be restricted to a quiet place. A service dog should not be repeatedly barking, absent provocation, wherever that service dog is located. Also, when it comes to whether a dog is under control, much of it should be common sense.

  1. Are hotel guests allowed to leave their service animals in their hotel room when they leave the hotel?

DOJ: No because the dog must be under the handler’s control at all times.

My thoughts: As mentioned above, the particular role of the dog may not always necessitate being with that individual but that doesn’t take away from the fact that it is a service animal. Looking forward to seeing how this plays out in the court system over time, and Loper Bright might actually prove beneficial to persons with disabilities in such a situation.

  1. Are restaurants, bars and other places serving food or drink required to allow service animal to be seated on chairs or allow the animal to be fed at the table?

DOJ: No

My thoughts: True, but restaurants are becoming very dog friendly. Here in Decatur, Georgia for example, it is not unusual to see restaurants with extended patios allow dogs and not just service dogs and therapy dogs, to accompany an owner at their table and even provide or allow water bowls to be at the table.

  1. Are churches, temples, synagogues, mosques, and other places of worship required to allow individual to bring their service animals into the facility?

DOJ: No because such organizations are specifically exempt from the ADA.

My thoughts: However, you do want to check your individual State law as it may go beyond the ADA. Also, places of worship may be desirous of doing the right thing and make individual exceptions for people wanting to take advantage of their place of worship.

  1. Do commercial airlines, apartments, mobile home parks, and other residential properties have to comply with the ADA? (I combined two DOJ questions here).

DOJ combined answer: Commercial airlines are subject to the Air Carrier Access Act and apartments, mobile home parks, and other residential properties are subject to the federal Fair Housing Act.

My thoughts:

  1. A) The Air Carrier Access Act, which is something I have written about before, is the exclusive remedy where commercial airlines do not properly deal with the rights of persons with disabilities. The Air Carrier Access Act does not contain a right to a private cause of action. True, a person or their lawyer can file a complaint with the Department of Transportation and they can take action or not.
  2. B) The Fair Housing Act is the law that covers apartments, mobile home parks, and other residential properties.
  3. C) Only the Fair Housing Act allows for emotional support animals, assistance animals, or therapy dogs.
  4. D) I have discussed the regulations applicable to both situations, here and here.

 

  1. If someone’s dog calms them when having an anxiety attack, does this qualify it as a service animal?

DOJ: It depends. The ADA makes a distinction between psychiatric service animals and emotional support animals. If the dog has been trained to sense that an anxiety attack is about to happen and take a specific action to help avoid the attack or lessen its impact, that would qualify as a service animal. However, if the dog’s mere presence provides comfort, that would not be considered a service animal under the ADA.

My thoughts: as you can see on the DOJ explanation here, the line between an emotional support animal and a psychiatric service animal can be incredibly small.

  1. Does a hospital have to allow an in-patient with a disability to keep a service animal in his or her room?

DOJ: Generally, yes. Service animals must be allowed in patient rooms and anywhere else in the hospital the public and patients are allowed to go. They cannot be excluded on the grounds that staff can provide the same services.

My thoughts: Title I of the ADA does not contain any service animal rules. Accordingly, you may get a different answer if you are talking about an employee of a hospital that needs a service animal with them, see here for example. Also, this particular issue can get quite complicated. For example, see this case.

Before leaving this blog entry, keep in mind that this is only a guidance from the Department of Justice and not a final rule. Accordingly, as a result of the discussion we had in two different blog entries, here and here, courts will have flexibility with respect to how far they want to go in following this guidance.

It is that time of the year for the greatest hits of 2024. The greatest hits section of the blog contains the top 10 for the year as well as certain other blog entries that are not in the top 10, but I feel are very important to know are out there. Here goes the list:

 

  1. With 782 views, fundamental alteration, undue burden, deliberate indifference, facially neutral policies, and title II.

 

  1. With 822 views, why all colleges and universities need to do the two-step, essential eligibility requirements, and direct threat.

 

  1. With 840 views, a shot across the bow to judges and court systems

 

  1. With 847 views, do’s and don’ts of the interactive process

 

  1. With 879 views, ADA claims when collective bargaining exists

 

  1. With 985 views, Indian tribes, sovereign immunity and the ADA

 

  1. With 1,104 views, just when does the statute of limitations BEGIN to run in ADA cases

 

  1. With 1,853 views, unreasonable delay in granting a reasonable accommodation is actionable

 

  1. With 2,030 views, failure to accommodate, direct evidence, and adverse action

 

The winner, for many consecutive years I do believe, is: the ADA and the applicable statute of limitations with 2,945 views.

 

 

Dropping out of the top 10 this year, were the following blog entries:

 

Can you get compensatory and punitive damages when alleging retaliation; ESA in Iowa; failure to accommodate: what is sufficient notice; and whether the ADA and 504 allow for disparate impact claims.

 

Added to the greatest hits section for this year even though they are not technically in the top 10, but I added due to their importance are: Muldrow means the end of requiring adverse action in failure to accommodate cases; and Loper Bright, Grants Pass, and Jarkesy.

 

Have a great holiday season and happy New Year everyone!!!!!!!!!!!

Gavina v. Amazon.com

(Decision immediately above in adobe format for this week’s blog entry)

 

Gavina v. Amazon.com-Word version

(word version of case immediately above)

I hope everyone is having a great holiday season. The way it looks for me is I believe I’m going to get two blog entries up this week and then possibly take a break until after New Year’s as my daughter will be coming home for three weeks for Christmas break. The first blog entry of the week is going to be substantive, while the second blog entry of the week will be the greatest hits for 2024. Unless something changes in the next few days, you will see five entries drop out of the greatest hits from last year and four new ones come in.

 

The case of the day comes out of California and is Gavina v. Amazon.com Services LLC, a denial of a motion to dismiss decided by the United States District Court for the Central District of California on December 4, 2024. The case is not an ADA case at all but rather arises under California law. Since California law and the ADA track closely each other in that a violation of the ADA automatically violates California law (FEHA), the case is nevertheless instructive. As usual, the blog entry is divided into categories and they are: facts; court’s discussion of why plaintiff is a qualified individual; court’s discussion of why plaintiff’s failure to reasonably accommodate claims can go forward; court’s discussion of why the failure of Amazon to engage in the interactive process claim can go forward; court’s discussion of why plaintiff’s disability discrimination claim can go forward; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

 

I

Facts

 

Plaintiff met with Amazon representatives at a job fair, alerted them to his medical condition (cerebral palsy), and later received an offer letter for an unspecified job. When he showed up for work on his first day, he learned that he was assigned to a warehousing position. After performing the job for a month, plaintiff asserted that he was forced to go on medical leave at a 45% reduction in pay, and subsequently terminated for absence violations. He brought suit alleging violations of several different provisions of California law pertaining to disability discrimination, failure to engage in the interactive process, and failure to accommodate.

 

 

II

Court’s Discussion of Why Plaintiff Is A Qualified Individual

 

  1. A qualified individual is one that is able to perform the essential duties of the position that is sought or held with or without reasonable accommodations.
  2. Defendant argued that the plaintiff failed to plead this because the plaintiff did not identify what other jobs were available that the plaintiff could perform with or without reasonable accommodations. The court called this argument a strawman for two reasons. First, plaintiff’s claim does not depend on a hypothetical human resources position because plaintiff had alleged that he was capable of performing the position he had by doing so for over a month. Second, plaintiff alleged that he could perform the essential functions of that job long term with reasonable accommodations to alleviate his physical limitations.

 

 

III

Court’s Discussion of Why Plaintiff’s Failure To Reasonably Accommodate Claims Can Go Forward

 

  1. A reasonable accommodation is a modification or adjustment to the work environment that enables the employee to perform the essential functions of the job the employee holds.
  2. Once Amazon was made aware of plaintiff’s disability, it had the burden to take positive (emphasis in opinion), steps to accommodate the employee’s limitations.
  3. The law is against the argument that the leave of absence itself is a reasonable accommodation.
  4. While it is true that providing a leave of absence may be a reasonable accommodation where an employee can no longer perform the essential functions of the job, that only works if it is likely that the leave is effective in allowing the employee to return to work at the end of the leave, with or without further reasonable accommodations.
  5. The court noted in a footnote that a leave of absence would not change anything with respect to plaintiff’s disability. So, the cases talking about a leave of absence being a reasonable accommodation are not applicable.
  6. Plaintiff alleged that Amazon made no effort whatsoever to accommodate the plaintiff’s work tasks in order to allow him to continue in his position.
  7. In a footnote, the court noted that Amazon argued that it was relieved from the affirmative duty to search for a vacant position because there were no vacant positions available. However, that is a question for summary judgment and not on a motion to dismiss. At summary judgment, Amazon will have an opportunity to introduce evidence that there were no vacant positions that plaintiff was qualified for.

 

 

IV

Court’s Discussion of Why the Failure of Amazon to Engage In The Interactive Process Claim Can Go Forward

 

  1. Under the FEHA, it is an unlawful employment practice for an employer to fail to engage in a timely, good faith, interactive process with the employee in order to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee with a known physical or mental disability or known medical condition.
  2. FEHA obliges employers to continuously engage in communication in good faith exploration of possible accommodations between employers and individual employees with the goal of identifying the accommodation that allows the employee to perform his job effectively.
  3. At the pleading stage, plaintiff is not required to identify a specific reasonable accommodation that would have been available at the time the interactive process should have occurred because employees do not have at their disposal the extensive information concerning possible alternative positions or possible accommodations that employers have.
  4. In cases where some interactive processes alleged, the Court’s ultimate role is to isolate the cause of the breakdown in the interactive process and then assign responsibility.
  5. Whether Amazon fulfilled its duty with respect to the interactive process is a factual question requiring more than just box checking.
  6. The duty to engage in the interactive process is a continuing duty and the fact that the employer took some steps to identify a reasonable accommodation does not absolve the employer of liability for failing to engage in the interactive process if it is responsible for a later breakdown in the process.
  7. Plaintiff alleged that he Amazon apprised of his disability through regular notes from his physician and after months of no accommodations, asked that his request be elevated. Plaintiff further asserted that despite all of this communication on his end, Amazon informed him that they were coming to an end on the job search despite little if no activity. In other words, Amazon is alleged to have broken an almost year long silence only to inform the plaintiff that he was out of leave, and proceeded to terminate him a week later.

 

 

 

V

Court’s Discussion of Why Plaintiff’s Disability Discrimination Claim Can Go Forward

 

  1. Establishing a prima facie case of disability discrimination means a plaintiff has to show: 1) plaintiff suffers from a disability; 2) plaintiff is a qualified individual; and 3) plaintiff suffered an adverse employment action because of his disability.
  2. An adverse employment action is an action that materially affects terms and conditions of employment, with that term being construed liberally in order to afford employees appropriate and generous protection against employment discrimination.
  3. The disability need not be the but for cause of the adverse employment action, but must be a substantial factor motivating it.
  4. Plaintiff need only allege that he suffered a cognizable adverse employment action and not necessarily termination.
  5. An unpaid leave of absence can constitute an adverse employment action if it was unreasonable under the circumstances.
  6. Requiring an employee to take leave when the employee can work with a reasonable accommodation constitutes an adverse employment action.

 

 

VI

Thoughts/Takeaways

  1. Whenever dealing with the concept of a qualified individual under the ADA, remember it is whether the person can do the essential functions of the job with OR without reasonable accommodations.
  2. While I have my first law degree from the University of San Diego, I never took the California bar exam. So, when it comes to the FEHA, be sure to consult a licensed attorney in California.
  3. Once the employer is made aware of an employee’s disability, it has the burden to take affirmative steps to accommodate the employee’s limitations.
  4. The leave of absence cases only work in the event that there would be a change in the employee’s condition at the end of the leave, which wasn’t the situation here.
  5. The defense that no vacant positions exist comes in at summary judgment and not at the motion to dismiss. At the pleading stage, it is not up to the plaintiff to have to identify a specific reasonable accommodation that would have been available at the time the interactive process should have occurred because it is the employer with all that information at their disposal.
  6. The obligation to engage in the interactive process is a continuing one, and it doesn’t matter if the employer takes some steps with respect to the interactive process only to end it later.
  7. Remember the do’s and don’ts of the interactive process, which we discussed here.
  8. This court says an adverse action must materially affect terms and conditions of employment. Muldrow, which we discussed here, seems to suggest otherwise. Again, this case involves California law and not federal law.
  9. The case does match up with Bostock, which we discussed here, with respect to causation.
  10. Requiring an employee to take leave when the employee can work with or without reasonable accommodations constitute an adverse employment action.
  11. I am not a licensed attorney in California.