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.

A couple of housekeeping matters before getting started on the blog of the week. First, I hope everybody had a happy Thanksgiving weekend. We kept ours small with lots of food. Second, I expect one more substantive blog entry for this calendar year, next week. Also, I expect to do my top Understanding ADA blog entries for 2024 that week as well. After December 13 until the shortly after the new year, my schedule is going to be all over the place. So, I am not sure, though I don’t rule it out depending on how things go, if you will see blog entries for the weeks of December 15, 22, and 29. I definitely will have a blog entry for the week of January 6, 2025.

 

The blog entry of the week is Mathis v. United States Parole Commission decided by the United States District Court for the District of Columbia on September 5, 2024, here. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning that the parolees are entitled to a preliminary injunction; court’s reasoning that no private right of action exists under the Rehabilitation Act but that does not exclude equitable relief; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

Two men on lifetime parole alleged that the federal government forces parolees to navigate lifetime supervision without accommodation for their disabilities. One of the men had congestive heart failure that substantially limits his ability to walk. The other man has trouble walking because of third degree burns and also suffers from mental health conditions of anxiety, depression, and PTSD. Failure to navigate the parole process can lead to technical violations, which can trigger discipline, including jail time. As a result of the lack of accommodations, both men received technical violations and further discipline, including jail time. Further, the Government does not accommodate offenders with disabilities.

 

For example, CSOSA (the agency responsible for providing actual supervision through qualified supervision officers, for offenders on probation, parole, and supervised release pursuant to the District of Columbia Code. The officers for this agency handle the day-to-day supervision. They ensure offenders comply with their conditions of release, set the location and frequency of check ins, and initially assess supervision violations. Noncompliance responded with graduated sanctions. Sanctions start with supervision requirements but can escalate to recommendations that an arrest warrant be issued and revocation proceeding begun), processes new supervision participants using automatic tools like the “Triage Screener” and the “Dynamic Risk Assessment for Offender Reentry.” These automated assessments generate a baseline supervision plan for each participant, but the assessments do not account for disabilities or propose reasonable accommodations. In fact, CSOSA conducted an “exhaustive search” of its policies stretching back nine years and “yielded no guidance/instruction/etc.” concerning the need to evaluate or reasonably accommodate offenders with disabilities. Relatedly, the Government also lacks any “guidance/instruction/etc. regarding the provision of notice to supervisees” concerning their right to request reasonable accommodations for their disabilities.

 

According to the Government’s own data, the Parolees experiences are not unique. The Government’s own data reveals that 17% of people in supervision between June 22 and May 2023 had a mental disability, but 30% of people who had discipline sought against them for failing to comply with the supervision processes had mental disabilities. Further, while 10% of all individuals and supervision committed technical violations, the number is actually 18% among the mentally disabled population. The Government conceded that it does not track intellectual, developmental, or physical disabilities.

 

The two men sued seeking a preliminary injunction enjoining the Government from continuing the alleged discrimination, which the Government opposed and filed a motion to dismiss.

 

II

Court’s Reasoning That the Parolees are Entitled to a Preliminary Injunction

  1. To obtain a preliminary injunction, the Parolees must show that they are: 1) likely to succeed on the merits; 2) likely to suffer irreparable harm in the absence of preliminary relief; 3) the balance of equities tip in their favor; and 4) that an injunction is in the public interest.
  2. 504 of the Rehabilitation Act, 29 U.S.C. §794(a), states that no otherwise qualified individual with a disability shall, solely by reason of his or her disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by an executive agency.
  3. To prove disability discrimination, Parolees must show that: 1) they have a disability under the Rehabilitation Act; 2) they are otherwise qualified; 3) they were excluded from, denied the benefit of, or subject to discrimination under any program or activity solely by reason of their disability; and 4) the program or activity is carried out by a federal executive agency or with federal funds.
  4. Parolees are persons with disabilities under the Rehabilitation Act. §504 defines individual with a disability in the same way as the ADA. Both Parolees have physical and mental impairments that substantially limit the major life activities of walking, thinking, concentrating, and interacting with others.
  5. Parolees are otherwise qualified for supervision. An individual with a disability is qualified for a program, 28 C.F.R. §39.103, if they meet the essential eligibility requirement for participation in, or receipt of benefit from, that program or activity. Since the Parolees have been placed on supervision and are subject to its terms, they meet the essential eligibility requirements established by the Government to participate in supervision.
  6. Parole and supervised release counts as a program or activity carried out by executive agency within the meaning of §504. The phrase “program or activity,” carries an expansive meaning, which encompasses everything the Federal agency does.
  7. Parolees have shown that they face obstacles solely because of their disability that impedes their access to a government benefit or program. These obstacles to equal access exists solely by reason of their disabilities.
  8. The Rehabilitation Act puts the focus on the discrimination itself and not on the consequences it causes. Accordingly, Parolees claims under the Rehabilitation Act ripen the moment their disabilities made it harder for them-compared to their nondisabled counterparts-to participate in the Government’s supervision programs without reasonable accommodation.

 

III

Court’s Reasoning That No Private Right of Action Exists under the Rehabilitation Act but That Does Not Exclude Equitable Relief

 

  1. The Rehabilitation Act bans disability discrimination by three types of actors: 1) by federal agencies in their capacities as employers (federal employer provision); 2) by entities receiving Federal financial assistance to run a program or activity (funding recipient provision); or 3) by any Executive agency that conducts any program or activity (program-conductor provision).
  2. The Rehabilitation Act lacks a private right of action to enforce the program-conductor provision.
  3. 505 of the Rehabilitation Act makes no mention at all of programs or activity conducted by any Executive agency. Accordingly, the parties to the litigation agree that the Rehabilitation Act contains no express private right of action to enforce the program-conductor provisions of §504(a).
  4. The Rehabilitation Act’s structure simply does not allow for a private right of action. Congress only created private rights of action for the employer provision and the recipient funding provision sections of the Rehabilitation Act but not for the program-conductor provisions.
  5. The amendments to the Rehabilitation Act in 1978 said a lot about private judicial remedies by adding a new section on private judicial remedies but not for the kind of claim brought by the Parolees.
  6. The weight of circuit authority cuts against an implied private remedy for the program-conductor provision.
  7. Congress expressly provided two alternative mechanisms to enforce the Rehabilitation Act’s program-conductor provision. Agencies must promulgate regulations per 29 U.S.C. §794(a), as may be necessary to carry out §504(a)’s antidiscrimination mandate. Another approach is that persons aggrieved under the program-conductor provision may bring a claim under the Administrative Procedure Act. Federal courts also have inherent equitable power to enjoin violations of the Rehabilitation Act.
  8. Courts have inherent equitable power to enjoin the Government from violating the Rehabilitation Act.
  9. The Supreme Court has long held that federal courts may in some circumstances grant injunctive relief against state officers who were violating, or planning to violate, federal law. That power also extends to violations of federal law by federal officials and operates even in the absence of a statutory cause of action.
  10. The Rehabilitation Act does not explicitly displace the Court’s equity jurisdiction. Statutes implicitly displace equity jurisdiction in only two circumstances (neither of which applies to this case): 1) where Congress has provided a detailed and exclusive remedial scheme; or 2) where statute contains an alternative remedy and the right at issue is judicially not administrable.
  11. The Rehabilitation Act boasts no detailed and exclusive remedial scheme. Beyond in-house rulemaking, the Rehabilitation Act provides no remedy at all for the Parolees or other individuals mounting a challenge under the program-conductor provision. As a result, the Rehabilitation Act places no restriction on the relief a court can award.
  12. No alternative remedy exists but the remedy is judicially administrable, so the second circumstance does not apply either because both must be true for the second circumstance to apply. After all, Federal courts routinely administer antidiscrimination laws, including the Rehabilitation Act.
  13. Since neither scenario for implicitly displacing the court’s equity jurisdiction exists, the full scope of the Court’s jurisdiction in equity can provide the Parolees a remedy.
  14. The Government does not raise the issue of sovereign immunity nor could it. The District of Columbia Circuit has repeatedly held that the Administrative Procedure Act waves sovereign immunity for claims against a Federal agency for any suit whether under the Administrative Procedure Act or not. It is also well established that sovereign immunity does not bar suits for specific relief, such as declaratory and injunctive relief against government officials where the alleged challenged actions of the officials are alleged to be beyond statutory authority.
  15. Parolees will likely suffer irreparable harm absent a preliminary injunction because the Government forces them to comply with supervision conditions on a day-to-day basis without the accommodation they need to have an equal opportunity to succeed.
  16. The injury here is not the imminent risk of arrest, incarceration, or prolonged supervision of the Parolees, but rather the unequal treatment in the administration of supervision because of their disabilities.
  17. The denial of equal treatment by itself counts as an injury even if the Parolees ultimately share the same degree of success at their nondisabled counterparts. The Rehabilitation Act does not require any further downstream harms than that. For example, the visually impaired are injured by the inaccessibility of paper currency even in the absence of evidence of their being frequently defrauded. Another example, a blind law school graduate is harmed by the bar exam, even if it is possible that she will pass without reasonable accommodations. So, Parolees imminently faced with the prospect of complying with supervision requirements that do not reasonably accommodate their disabilities, are subject to an irreparable harm.
  18. The balance of equities favors the Parolees for several reasons: 1) Parolees will be forced to participate in the Government’s supervision programs on an unequal footing just because of their disabilities; 2) the public and the Government have a strong interest in the effective enforcement of the Rehabilitation Act; and 3) Congress designed the Rehabilitation Act to target disability discrimination that was most often the product not of intentional discrimination, but rather of thoughtlessness and indifference-of benign neglect.
  19. With respect to the remedy, preliminary injunction is granted as to the Parolees, but class certification issues remain to be addressed.

 

IV

Thoughts/Takeaways

 

  1. Being qualified for a program is usually a very straightforward question.
  2. Program or activity means anything a Federal agency does. We have seen in our blog similar statements made with respect to nonfederal governmental entities, which are subject to Title II of the ADA.
  3. The focus for the Rehabilitation Act is on the discrimination itself and not on its consequences.
  4. Outside of the employment situation, any action under the Rehabilitation Act for disability discrimination against the federal government means only equitable remedies (for example, declaratory or injunctive relief), are in play. Attorney fees are still available.
  5. Sovereign immunity is not in play when it comes to Rehabilitation Act claims against the federal government.
  6. Unequal treatment of a person with a disability in the administration of the program is an injury.
  7. This case comes awfully close to saying that the failure to accommodate by itself is an adverse action. Such a conclusion also makes sense in light of Muldrow v. City of St. Louis, which we discussed here.
  8. It is easy to get it confused, but 29 U.S.C. §794 is a different statutory provision than 29 U.S.C. §794a. The former is §504 of the Rehabilitation Act, while the latter is the remedies provisions for the Rehabilitation Act.
  9. A review of the docket reveals that the class certification debate for affected people other than the two individuals involved in this decision is currently ongoing.

Today’s blog entry discusses a case, Tornabene v. City of Blackfoot, here, out of the United States District Court for the District of Idaho that is set for trial on February 24, 2025. The decision denying summary judgment on the disability discrimination claims came down on September 11, 2024. The case presents an excellent roadmap for dealing with failure to accommodate claims at the summary judgment stage. As usual, the blog entry divided into categories, and they are: Facts; court’s reasoning denying summary judgment with respect to whether plaintiff was a qualified individual with a disability; court’s reasoning denying summary judgment with respect to whether defendant engaged in the interactive process; court’s reasoning that plaintiff’s failure to accommodate claim and unlawful discrimination claim are the same claim; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts (taken very closely from the opinion)

 

Plaintiff was in HR director for the city of Blackfoot from 2015 until September 2021. As the HR Director, Tornabene reported to the City Clerk, Suzanne McNeel, and to Carroll. According to the City’s job description, the HR Director’s primary functions included developing and implementing personnel policies, overseeing personnel records management, monitoring and assuring city-wide legal compliance, overseeing general employee relations and development, monitoring policies to assure fair and consistent treatment of employees, developing personnel strategies and policies, and investigating alleged legal violations. This job description states, “The principal duties of the position are performed in a general office environment.”

 

Between 2015 until March 2020, Tornabene worked a traditional schedule from her office in City Hall, although she performed most of her duties by telephone and on the computer. In March 2020, Tornabene and other City staff began working remotely during the pandemic. At that time, Tornabene set up a home office where she had all the equipment and technology she needed to work efficiently, including a desk, a computer, monitors, a printer with fax and scanner capabilities, an office chair, video conferencing capabilities, and filing space to store documents until she could file them at City Hall. Additionally, she had full, remote access to the City’s network.

 

In the summer of 2020, most of the staff had returned to the office. However, plaintiff continued to work remotely to protect her elderly parents from contracting Covid-19. In early September 2020, plaintiff was diagnosed with Covid-19 and was severely ill for approximately six weeks. Although she recovered and was able to work remotely, plaintiff’s symptoms continued and she developed long Covid-19, which included breathing problem, headaches, chronic fatigue, brain fog, and vertigo. Her nurse practitioner advised her to continue working remotely, and in December 2020, plaintiff informed one of her supervisors that she was not medically cleared to return to the office. At first, the City accommodated plaintiff’s request to work from home.

While Tornabene was working from home between December 2020 and her September 2021 discharge, Tornabene’s husband, Scott Denning, drove Tornabene to City Hall two or three times per week to onboard new employees, to meet with employees, to file paperwork, to perform factfinding for employee relations, to consult with managers, to conduct interviews, or to do other tasks. When taking Tornabene to her office in City Hall, Denning helped Tornabene with various tasks, including faxing, retrieving file folders, or shredding documents. Some of the folders Denning filed for Tornabene contained confidential personnel documents.

Denning, however, only handled “folders”—not individual documents—and he did not see the folders’ contents. He filed personnel folders in the “vault” where the City stored its personnel folders. The City only allows designated employees access to the vault. McNeel and Carroll knew Denning, who was not a City employee, was assisting Tornabene at her office. For example, McNeel downloaded a security video of Denning accessing the vault while assisting Tornabene and showed the video to Carroll and the City’s legal counsel. Neither McNeel, Carroll, nor the City’s legal counsel, however, expressed any concern to Tornabene about Denning helping her.

Sara Furu, an administrative assistant for the City Clerk’s Office, also helped Tornabene with administrative tasks at City Hall. Both Tornabene and Furu testified that McNeel had approved Furu helping Tornabene with administrative tasks, including filing in the vault, even before the pandemic occurred. While working remotely, Tornabene also asked Furu to delete voicemails from her phone at City Hall. Tornabene had already listened to these voicemails at home, which she received via email attaching the messages; therefore, Furu could simply delete the voicemail messages without listening to them. Furu denied receipt of any confidential personnel information while assisting Tornabene.

Tornabene performed her duties remotely, including addressing employee relations issues, consulting on benefits, updating the website, participating in interviews, processing onboarding documents, attending weekly staff meetings with the Mayor, setting up training sessions, and answering questions. During the time when Tornabene was working remotely from her home office and going to City Hall as necessary, no one ever told her directly that they could not reach her; she was not responding quickly enough; she was not completing tasks as required; or she could not have her husband or Furu assist her.

In April 2021, plaintiff’s supervisor met with plaintiff and advised her that having regular in person office hours was an essential function of the HR Director position. By then, the City had operated for over a year without an HR Director in the office. Her supervisor testified that she felt the HR Director needed to have designated in office hours each day to be available for in person consultation with department heads and other employees. He also testified about complaints from other department heads about remote work but would not tell plaintiff who had complained or what their specific complaints were.

Plaintiff’s medical provider continued to insist that plaintiff should continue working from home and requested that the City accommodate her by allowing her to continue working from home while going to the office as necessary. Her supervisor was having none of it and insisted that Plaintiff take short-term disability leave to be reevaluated in eight weeks, which she did.

Near the end of July 2021, Tornabene exhausted her short-term disability leave, and Carroll again asked her to return to the office at least part-time. Tornabene responded by providing a letter from her doctor, who opined it was “medically necessary” for Tornabene to continue working from home and suggested she be re-evaluated after eight weeks to determine whether her condition had improved.

The City insisted on a second opinion and claimed it could force Tornabene to see the City’s doctor. Tornabene responded, asking the City to identify what was unacceptable about her doctor’s letter, inquiring what additional information she could provide from her own medical providers, and requesting the City to contact her doctor. Thereafter, the City denied Tornabene’s requested accommodation and terminated her employment in September 2021.

Plaintiff brought suit alleging violations of the ADA, the Rehabilitation Act, The Idaho Human Rights Act, Title VII of the Civil Rights Act, the equal protection clause, and the FMLA. The blog entry will only discuss the disability discrimination claims.

II

Court’s Reasoning Denying Summary Judgment With Respect To Whether Plaintiff With A Qualified Individual With A Disability

 

  1. A qualified individual is a person with a disability who with or without reasonable accommodation can perform the essential functions of the employment position.
  2. Plaintiff bears the burden of proving, “qualified.”
  3. A court has to first consider whether the plaintiff can perform the job’s essential functions without reasonable accommodation. If not, the court has to consider whether the plaintiff can perform the essential functions of the job with a reasonable accommodation.
  4. Essential functions per 29 C.F.R. §1630.2(n)(1), of the job refers to the fundamental job duties of the employment position.
  5. A job function is essential if removing it would fundamentally alter the position.
  6. Essential functions do not include the marginal functions of the position.
  7. A job function can be essential for a variety of different reasons.
  8. While a court must consider the employer’s judgment regarding what job functions are essential, including any written job descriptions the employer prepared, that evidence is not conclusive.
  9. An employer may not turn every condition of employment into an essential function by including it in a job description. Instead, essential functions of the job are a highly fact specific inquiry.
  10. Citing to a case that we have discussed in our blog entry, here, the court said that the employer has the burden of production to establish what job functions are essential.
  11. If the evidence is conflicting regarding a position’s essential functions, a factual dispute exists precluding summary judgment notwithstanding what the job description says.
  12. The HR director job description stated only that the plaintiff was to oversee personnel records management and did not require her to handle personal records exclusively. Plaintiff had already heard voicemails that other staff had deleted for her and did not rely on other staff to listen to those messages. Further, the City never objected to her husband assisting the plaintiff, even though they were aware of his assistance and the nature of that assistance.
  13. An employer’s written job description is not conclusive and an employee’s presence at work is not an essential function of the job just because an employer says it is.
  14. The City Chief of Police testified that he had no problem with plaintiff working remotely and that to his knowledge no one in the police department had experience any difficulty with her working remotely either. According to his testimony, plaintiff was available and helpful to him and other members of law enforcement as needed even when matters arose outside of normal business hours or on weekends. He testified that plaintiff fulfilled her duty so well that he hardly noticed she was working remotely.
  15. Plaintiff challenges the City’s requirement that she maintain regular in person office hours. Whether that requirement was an essential function of the job presents a genuine material factual issue for trial, as plaintiff has presented evidence that regular attendance was not necessary to perform the essential functions of her job.
  16. Determining whether a proposed accommodation is reasonable is a fact specific individualized inquiry.
  17. Plaintiff bears the initial burden of showing the existence of a reasonable accommodation that would enable her to perform the essential functions of the position.
  18. To avoid summary judgment, plaintiff only needs to present evidence sufficient to make at least a facial showing that reasonable accommodation is possible.
  19. Once plaintiff establishes the existence of a reasonable accommodation, the burden switches to the defendant that show that the accommodation constitutes an undue hardship.
  20. Courts have concluded that working remotely is arguably a viable accommodation in certain circumstances.
  21. The EEOC has reiterated that teleworking may be a reasonable accommodation for people with long Covid.
  22. Plaintiff presented evidence that she performed well while working mostly remotely.
  23. The City has to show that plaintiff’s suggested accommodation was unreasonable or would impose an undue hardship. However, City failed to submit any evidence or even argue that allowing plaintiff to continue to work remotely would have been unreasonable or otherwise impose an undue hardship.

 

III

Court’s Reasoning Denying Summary Judgment With Respect To Whether Defendant Engage In The Interactive Process

 

  1. An employer has a duty to engage in the interactive process.
  2. Employers failing to engage in the interactive process in good faith face liability for the remedies imposed by the ADA if a reasonable accommodation would have been possible.
  3. An employer cannot prevail at summary judgment if there is a genuine dispute as to whether the employer engaged in good faith in the interactive process.
  4. The task of proving the negative-that no reasonable accommodation was available-rests with the employer throughout the litigation. Further, given the difficulty of proving such a negative, it is not likely that an employer will be able to establish on summary judgment the absence of a disputed fact as to this question.
  5. The City bears the burden of proving that a failure to engage in the interactive process should be excused because no reasonable accommodation would have been available in any event.
  6. If an employer does not engage in the interactive process, summary judgment is only available if a reasonable finder of fact must conclude that there would have been no reasonable accommodation available.
  7. To avoid summary judgment, an employee need only show that an accommodation seemed reasonable on its face, i.e. ordinarily or in the run of cases.
  8. Plaintiff presented sufficient evidence to meet her burden that her requested accommodation was reasonable on its face.
  9. Evidence does not show that the City engaged in the mandatory interactive process. Once plaintiff requested an accommodation, the City had a mandatory duty to engage in an interactive process to identify and implement a reasonable accommodation that would have permitted the plaintiff to retain her employment.
  10. Instead of engaging in the interactive process, the City denied plaintiff’s requested accommodations without suggesting any alternative solutions or exploring with her the possibility of other accommodations. Instead, the City consider the matter closed. In fact, evidence indicates that the City refused to discuss or consider the possibility of other accommodations aside from requiring plaintiff to come into the office for two regularly designated hours every day.

 

IV

Court’s Reasoning That Plaintiff’s Failure To Accommodate Claim And Unlawful Discrimination Claim Are The Same Claim

 

  1. A failure to accommodate claim and an unlawful discharge claim are, as a practical matter, the same thing when the failure to accommodate results in an alleged unlawful termination.
  2. Plaintiff’s failure to accommodate claim and her unlawful discrimination claim are essentially the same thing because there is a causal connection between her disability, which prevented her from going to the office on a regular basis, and the City’s termination of her employment for that very reason. Furthermore, plaintiff presented direct evidence (smoking gun emails about the virtue of remote work for employees), indicating the City terminated her employment because she had long-Covid.

 

V

Thoughts/Takeaways

 

  1. Always engage in the interactive process. It is a big problem if it doesn’t happen.
  2. Case presents a nice roadmap for dealing with the reasonable accommodation claim at the summary judgment stage.
  3. ”Qualified,” means asking whether the person can perform the essential functions of the job with OR without reasonable accommodations.
  4. Think of essential functions as the fundamental job duties of the employment position.
  5. Employer’s judgment regarding what job functions are essential is not dispositive. Rather, determining essential functions is a highly fact specific inquiry.
  6. Up to the employer to produce evidence as to what job functions are essential.
  7. Employers need to have a program in place where job functions are regularly reviewed for what is actually happening on the ground.
  8. Lots of employers are now insisting on return to work. This case illustrates that if something is working, be careful about taking it away. Also, is it really worth losing a productive employee?
  9. I prefer the term “reasonable accommodation on its face,” over, “in the run of cases.” I have no idea what the latter means.
  10. Courts are becoming a lot more flexible now about remote work. Even the EEOC has gotten behind it now in certain circumstances. If an employer is going to insist on ending remote work, make sure that it is allowed for people with disabilities who are able to show remote work is a reasonable accommodation for them. It would also help on the employer side, if statistical evidence existed that employees in that position actually do better in the office rather than management just assuming that it has to be that way.
  11. Failing to engage in the interactive process basically guarantees summary judgment being denied that no reasonable accommodation was available.
  12. Insisting on a second opinion as you might with the FMLA, is not recommended. Instead, ask for clarification if it is needed. Also, keep any clarification requests narrowly focused.
  13. I love the Samper case, which we discussed here, for determining whether attendance is an essential function of the job, and I am delighted to see another court agrees with me. Keep in mind, as a result of the pandemic, to have those Samper factors should contain an in person requirement going forward. Samper actually occurred before the pandemic, so the court would have had no idea just how easily work can be done remotely with the available technology.

This week’s blog entry is a how to for what NOT to do if you are a business faced with an accommodation request. The case of the day is Patterson v. Six Flags Theme Parks, Inc., here, decided on November 15, 2024, in the United States District Court for the Eastern District of California. As usual, the blog entry is divided into categories and they are: what not to do if you are a business faced with an accommodation request (in this case from a Deaf individual); court’s reasoning that plaintiff has standing; court throws the book at Six Flags; court’s damage award, granting of injunctive relief and denial of declaratory relief; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories. Keep in mind, that this is a decision made after a bench trial. Also, by way of full disclosure, one of the plaintiff’s attorneys, Andrew Rozynski, is a person that I have co-presented with in the past and correspond with from time to time. It is not unusual for me to blog on his cases.

 

I

What Not to Do If You Are a Business Faced with an Accommodation Request

 

  1. Not always provide an ASL interpreter for a culturally deaf individual, hereafter Deaf.
  2. Not provide any kind of device to allow a Deaf customer to receive communications.
  3. Ignore and/or never return phone calls seeking reasonable accommodations/modifications.
  4. Deny accommodations without any interactive process.
  5. When a person complains, give them a case number with nothing else happening in the future.
  6. Fight a request for a refund filed by the customer with the customer’s credit card company.
  7. Refuse to empower customer service agents to deal with accommodation requests.
  8. Not allow customer service agents to talk to personnel capable of carrying out any accommodation requests.
  9. Draw out any response time to reasonable accommodation requests.
  10. Refuse to cancel a contract at the request of the customer when it is clear that things are not working.
  11. Put the customer on hold for an hour and then call gets disconnected.
  12. Provide a confusing array of responses to a history of reasonable accommodation requests.
  13. Offer a reasonable accommodation request that has nothing to do with the specific customer’s disability.
  14. Not follow its own policies.
  15. Ask the person with the disability to provide their own accommodation by bringing their own individual to interpret for them.
  16. Have your employees not know your company’s policies when it comes to reasonable accommodation requests and particular reasonable accommodation requests.
  17. Confuse an ASL interpreter with personal care attendants.
  18. Over the course of three months, ignore emails, direct the customer to three different policies, give the customer contradictory instruction, and never offer to provide an interpreter or other assistive device for upcoming visits to the business.
  19. Ignore consistent and clear requests for accommodations.
  20. Customer service individuals not figuring out a way to communicate to people that can make the accommodation request happen despite a policy prohibiting such communications.
  21. Not allowing customer service personnel to talk to others within the company that could make the accommodations happen.
  22. Give your staff minimal or no training regarding accommodation requests.
  23. Not requiring customer service individuals to read the company’s safety and accessibility guide and making it clear that that guide only gets referred to if related questions come up.
  24. Do not have any language in your accessibility guide talking about an interactive process or how the company should make a good-faith effort when handling reasonable accommodation requests.
  25. Prohibit call center employees from communicating with staff at individual parks so as to make it extremely difficult to effectuate reasonable accommodation requests.
  26. Requiring fixed amount of advanced notice for certain kinds of accommodations when individual situation may not require such a long period of time.

 

II

Court’s Reasoning That Plaintiff Has Standing

 

  1. On nine occasions, plaintiff requested accommodations and defendant denied any kind of accommodation.
  2. Plaintiff testified credibly that he and his family like theme parks as a form of entertainment and want to return back to Six Flags in the future. In fact, plaintiff has returned since his first visit there.
  3. Defendant still requires seven days advance notice before ASL interpreters can be provided.
  4. Defendant still does not allow workers at the national call center to contact the park directly.
  5. Problematic policies and practices still remain.

 

III

Court’s Reasoning Throwing the Book at Six Flags

 

  1. A violation of the ADA is a violation of the Unruh act.
  2. To prove a violation of Title III of the ADA, a plaintiff has to show: 1) they are a person with a disability; 2) the defendant is a private entity operating a place of public accommodation; and 3) defendant denied public accommodations on account of the plaintiff’s disability.
  3. Under the ADA per 42 U.S.C. §12182(b)(2)(A)(iii), discrimination includes the failure to take such steps as may be necessary in order to ensure that no individual with a disability is excluded, denied services, segregated, or otherwise treated differently because of the absence of auxiliary aids and services.
  4. Auxiliary services per 42 U.S.C. §12182(1)(A), includes qualified interpreters or other effective methods of making aurally delivered materials available to individuals with hearing impairments.
  5. Plaintiff proved that he was excluded from fully enjoying Six Flags Discovery Kingdom because defendants twice did not provide auxiliary services, whether it be an interpreter or a handheld auxiliary device. As a result, plaintiff could not enjoy the shows and did not feel openly included while he was at the park. He also could not hear any announcements made over the park’s loudspeaker system.
  6. Six Flags provided him incorrect information about how to obtain an interpreter for upcoming visits.
  7. Six Flags staff did not help arrange for accommodations for upcoming visits and wound up denying accommodations on nine different occasions.
  8. Six Flags had the burden of showing that ASL interpreters on shorter notice than seven days would constitute an undue burden.
  9. While ADA regulations permit a defendant to show requested accommodation would be financially too burdensome based on the cost of the accommodation or the defendant’s overall financial resources, Six Flags offered no such evidence at trial and abandoned the undue burden defense altogether.
  10. It is not the plaintiff’s burden to train defendant’s employees.
  11. Even if plaintiff did not always call the right phone number, plaintiff did contact at least eight Six Flags employees over the course of the summer of 2021.
  12. Six Flags did not empower knowledgeable employees to make accommodation requests happen.
  13. Six Flags insufficiently trained its employees.

 

IV

Court’s Damage Awards, Granting of Injunctive Relief, and Denial of Declaratory Relief

 

  1. The court winds up awarding $18,209.88 in actual damages. It also winds up awarding $36,000 in statutory damages. Plaintiff also gets attorney fees to be determined later. The court did wind up denying punitive damages.
  2. A plaintiff seeking a permanent injunction must show: 1) irreparable injury; 2) remedies available at law, such as monetary damages, are inadequate to compensate for that injury; 3) considering the balance of hardships between the plaintiff and the defendant, a remedy in equity is warranted; and 4) the public interest would be not be disturbed by a permanent injunction. It is a totality of the circumstances test.
  3. Six Flags policies caused the defendant irreparable harm.
  4. Six Flags deficient training programs are still in place and therefore, plaintiff is likely to continue to be deprived of the combinations he needs to fully enjoy the Six Flags theme parks as he is entitled to under the law.
  5. Monetary damages would not compensate plaintiff due to the nature of the injury with respect to future dealings with Six Flags. Only an injunction can accomplish that.
  6. The cost of revision to Six Flags training regimen and company policies is small in comparison to the value or preventing similar unlawful discrimination from occurring in the future.
  7. Public policy strongly favors an injunction as the purpose of the ADA is to ensure independent living, and economic self-sufficiency.
  8. Granting declaratory relief would serve no useful purpose considering the damages awarded and the ward of a permanent injunction.

 

V

Thoughts/Takeaways

 

  1. Training, training, training, and it shouldn’t be a one off either (training is a huge part of my practice).
  2. Interesting that plaintiff chose to go with a bench trial rather than a jury trial. It worked out well for the plaintiff.
  3. Don’t forget about the do’s and don’ts of the interactive process, which we discussed here.
  4. Unreasonable delay in granting accommodations will get you in trouble. See also this blog entry.
  5. Empower your personnel to act on customer requests and that includes breaking down bureaucratic structures when necessary.
  6. A pet peeve of mine is not being able to get transferred to an individual that speaks English with an accent that I can understand. Amazes me, how often I have to fight to be able to communicate effectively with call centers. It is not unusual for me to have to cite chapter and verse the ADA to get the transfer to an accent that I can understand. As a result of my deafness, certain foreign accents are very difficult for me.
  7. Don’t offer reasonable accommodations having nothing to do with a person’s disability.
  8. Make sure your policies, practices, and procedures are disability centric and are followed by staff. The ADA is just a floor for such policies, practices, and procedures.
  9. Don’t forget about DOJ’s effective communication rules, which we discussed here, for example.
  10. ASL interpreters and personal care attendants are not the same thing.
  11. Magic words are not required to request an accommodation.
  12. The Unruh Act sets itself up as automatically being violated if the ADA is violated. It also allows for actual and statutory damages and attorney fees. Title III of the ADA only allows for injunctive relief and attorney fees.
  13. Persons with disabilities are not responsible for providing their own accommodations.
  14. The hearing loss community generally frowns on “hearing impairment,” rather that community prefers Deaf, deaf, or hard of hearing. Of course, it is very much an individual call.
  15. Businesses need to give out correct information to their customers and how to request reasonable accommodations/modifications.
  16. It makes sense as to why a company would stay away from a financial undue burden defense as that defense would activate discovery into the financial resources of the company.
  17. Did I mention training?