The blog entry that goes up for this week will be the last one before the week of August 29 as we will be taking our daughter off to college this coming Friday. She moves in the following week. So, no blog entry the week after this one and this one counts for the week of August 16. The blog entry of the day is from the Sixth Circuit decided on August 12, 2022. The case is Post v. Trinity Health-Michigan, a published decision from the Sixth Circuit, which can be found here. The case involves two questions. First, when an interference claim is made what ADA title applies? Second, if you have an ADA claim, can you use a §1985 claim instead? As usual, the blog entry is divided into categories and they are: facts; court’s reasoning that interference claims relate back to the title of the ADA that the case involves; §§1985, 1985(3) are of no help to plaintiff; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

St. Joseph Hospital hired the plaintiff in 1982 to work as a nurse in its emergency room. For the next two decades, she served in various roles at the hospital and became a certified Registered Nurse Anesthesist in 2004. In 2013, the hospital outsourced their anesthesiology services to the Wayne State University Physician Group and her decade-long employment with the hospital came to an end. In October 2016, plaintiff did not notice a protruding monitor that had not been put in its proper place and she slammed her head against it. The impact lacerated her right temple and caused a severe concussion giving her slurred speech and difficulty walking. After the accident, she suffered from postconcussion syndrome. For months, she weathered through debilitating headaches and severe fatigue. She also had problems concentrating for extended periods and trouble speaking. She was forced to take a leave of absence from work and undergo significant rehabilitation.

 

By March 2017, her condition had improved enough that her doctor authorized her to gradually begin working again under certain restrictions. Her doctor recommended that she practice administering anesthesia in a simulation room before treating real patients again. When one of her case managers sought to have her use the hospital’s simulation lab, the chair found it absolutely inappropriate for the plaintiff to use the lab because the hospital did not have the equipment or personnel to support the proposed practice sessions.

 

The other issue was her credentials. The hospital required her to submit a form signed by the chair of the hospital’s anesthesiology department. However, that Dr. refused to sign the form because of her leave of absence from the group. Until that Dr. cleared her return, the hospital could not process her application. The clearance never came and the University Physician Group, her employer, terminated her for budgetary reasons before she returned to work. The group later filed for bankruptcy. She asserted a claim in the bankruptcy case seeking damages for termination alleging that the group had engaged in age and disability discrimination. The bankruptcy court said insurance coverage existed so the bankruptcy court would not be able to take the claim. She then sued the hospital alleging that the hospital interfered with her right to a reasonable accommodation under the ADA and for conspiring with University Physician Group to deprive her of her ADA employment rights. At no point did she allege that the University Physician Group and the hospital were joint employers.

 

II

Court’s Reasoning That Interference Claims Relate Back to the Title of the ADA the Case Involves.

 

  1. The interference provisions of the ADA is found at 42 U.S.C. §12203(b).
  2. 42 U.S.C. §12203(b) does not identify the party barred from engaging in unlawful interference.
  3. Although the interference provision does not list potential defendants, the remedies clause of 42 U.S.C. §12203 clarifies the confusion. What that clause says, is that a variety of different remedies apply depending upon whether title I, title II, or title III is involved.
  4. Plaintiff alleged that the hospital interfered with rights granted by the ADA’s employment provisions.
  5. When you follow the dancing ball of the remedies provisions of 42 U.S.C. §12203 with respect to employment, you find that it takes you to the remedies under title VII of the Civil Rights Act of 1964.
  6. Title VII’s remedies and procedures permits an aggrieved party to file an administrative charge with the EEOC against four different entities, one of which of them is an employer. The aggrieved party then has to receive a right to sue letter from the EEOC before proceeding in court.
  7. Title VII permit suits only against employers and a few other irrelevant entities.
  8. Title I of the ADA adopts title VII’s remedial framework, and the ADA’s interference provision adopts the employment subchapter’s remedial framework when a suit raises an employment complaint. Accordingly, the statutory chain of cross-references leaves no doubt that the interference provision in §12203(b) permit suits only against employers when an employment situation is involved.
  9. Title I of the ADA makes it unlawful only for a covered entity to discriminate against a qualified individual on the basis of disability. The phrase “covered entity,” mirrors the list of potential defendants in title VII-an employer, employment agency, labor organization, or joint labor management committee.
  10. The reason why the interference provision lacks a single subject is because §12203 applies to title II and title III entities as well.
  11. That the interference provision relates to title I when dealing with an employment situation also follows from a Sixth Circuit decision involving the retaliation provisions of the ADA. The Sixth Circuit has previously held that employees may sue only their employers for violating the retaliation section. While that case was a Rehabilitation Act case, the Rehabilitation Act incorporates the ADA’s retaliation standard. It wouldn’t make much sense if the ADA’s retaliation section and the interference section reach opposite conclusions on the question of whether only an employer could be sued when an employment situation is involved, especially since the Rehabilitation Act section prohibiting retaliation appears to have even broader language within it than the ADA section prohibiting retaliation.
  12. Other cases cited by the plaintiff are not helpful to the plaintiff’s cause because they involved a different title of the ADA, whether it be title III or title II.
  13. It is possible that the plaintiff could have alleged some type of joint employer theory. However, plaintiff failed to argue that the hospital should be treated as an employer and thereby forfeited the Sixth Circuit’s consideration of any joint employer theory.
  14. A plaintiff can assert a claim of interference with employment related rights under §12203(b) only against an employer or the few other entities listed in 42 U.S.C. §2000e-5(b).

 

II

42 U.S.C. §1985(3) and §1985 are of No Help to the Plaintiff

 

  1. The Sixth Circuit has held that §1985(3) claims reach only conspiracies targeting a person based on a classification that receives heightened scrutiny under the Supreme Court’s equal protection framework. However, conspiracies grounded in disability-based discrimination are not covered because disability discrimination is only subject to rational basis review.
  2. While other circuit courts have held that §1985 can reach disability discrimination, only the Supreme Court or the Sixth Circuit en banc can overrule prior Sixth Circuit decisions.
  3. The Supreme Court has cautioned against allowing a plaintiff to use §1985(3) to enforce a right in another statute when the remedial limits in that statute would bar the plaintiff from suing directly under it. Since the ADA adopts title VII’s remedial framework for employment related claims, this logic applies to this case.

 

III

Thoughts/Takeaways

 

  1. Under this case, interference claims relate back to the type of matter the case involves. So if it is an employment situation, interference relates back to title I of the ADA. If it is a situation where accessing nonfederal governmental entities is involved, then interference claims would relate back to title II of the ADA. Finally, if it is a situation where a place of public accommodation is involved, the interference claim would relate back to title III of the ADA. Each of those titles have their own remedies and their own statutory and regulatory scheme.
  2. It isn’t unusual for independent contractor groups to staff hospitals. It also is not unusual for courts to find that such an arrangement to the public means that the person who works for the independent contractor group is also an employee of the hospital. This case certainly teaches the lesson that the existence of joint employers need to be considered when filing a complaint against a physician group that a hospital has outsourced operation to.
  3. One of the most common ways I see interference claims come across my desk in my practice is when a college professor interferes with what the student and disability services has worked out with respect to the student being accommodated. This case does not rule out interference claims arising from such situations because that situation would involve a title II entity and therefore relate back to title II. Whether the people interfering with the student’s right to receive accommodations could be sued individually may depend upon the jurisdiction. See this case for example, which we also discussed here.
  4. I am not sure I understand why the plaintiff could not pursue her claim against the group that went bankrupt because the physician group had sufficient insurance. If they had sufficient insurance, I wonder why the case could not go forward outside of the bankruptcy court because the bankrupt’s estate would not be jeopardized. The only reason I’m even aware of this issue is because I dealt with this very issue in a case that I was involved with in my first job as a licensed attorney out of law school. I am assuming that the physician group filed under Chapter 11, which is the chapter of the bankruptcy code I am familiar with. If they filed under a separate chapter of the bankruptcy code, then perhaps what happened in the bankruptcy court makes sense.
  5. With respect to §1985, it isn’t accurate to say that disability discrimination is only subject to rational basis review. As we know from Board of Trustees of the University of Alabama v. Garrett and from Tennessee v. Lane, the level of equal protection review that a person with a disability receives depends upon the facts of each individual case.
  6. It is accurate to say that there is plenty of case law out there saying that if an ADA claim exists, you can’t use §1985 type claims as a way to circumvent the ADA.
  7. Interesting that the case has no mention of FMLA, which has job protection features, and I have no idea why that is the case.
  8. Why wasn’t a claim alleging violations of title III of the ADA filed per the case we discussed here?
  9. For the last couple of years, a large part of my practice has involved acting as a consultant to healthcare professionals involved in disability discrimination matters (employment, licensing, credentialing, etc.). One of the things that I have seen from that experience, is that lawyers representing healthcare professionals need to realize that it is not unusual to have title I, title II, and title III of the ADA all in play simultaneously. Lawyers ignore that fact at their client’s peril.
  10. The dancing ball of the retaliation and interference provisions alluded to above can lead to some very interesting results. For example, a line of cases exists saying that only equitable remedies exist for retaliation under title I of the ADA because of the dancing ball. See this case for example.

Before getting started on our blog entry for the week, a couple of housekeeping matters are in order. First, my daughter is off to college a week from Friday. Things are very exciting and terrifying here at the same time. Accordingly, next week is going to be crazy and the week after that even more so. I may or may not get a blog entry up next week, but I will definitely not be getting up a blog entry up the week after that.

 

The case for this week is Martinez v. Cot’n Wash, a published decision from the Second Appellate District of the Court of Appeals of the State of California. The case involves an Internet only business that got sued by a person with a screen reader for an inaccessible website. Before bringing suit, plaintiff sent a demand letter. Notably, defense responded with their belief that the Internet site complied with the applicable WCAG level AA and asked for clarification from the plaintiff. Plaintiff then sues anyway. The Court of Appeals holds that the gateway principal rules in California and without a gateway the plaintiff has no case. As usual, the blog entry is divided into categories and they are: court’s reasoning that plaintiff’s claim fails because the website is not a place of public accommodation; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Court’s Reasoning That Plaintiff’s Claim Fails Because the Website Is Not a Place of Public Accommodation

 

  1. An inaccessible website is facially neutral so that the Unruh act is not activated on grounds of intentional discrimination.
  2. The listed categories in 42 U.S.C. §12181(7) mainly reference physical locations.
  3. The implementing regulations similarly define a public accommodation by referring to a “facility,” which is in turn defined, at 28 C.F.R. §36.104, as “all or any portion of buildings, structures, sites, complexes, equipment, rolling stock… or other real or personal property, including the site where the building, property, structure, or equipment is located.”
  4. A website is not identified in any of the statutory categories, which is not surprising as no commercial websites existed when the ADA was enacted in 1990. However in the 30 years since, websites have become central to American life.
  5. The regulatory agency charged with implementing the ADA for title II and title III (DOJ), of the ADA has previously endorsed the applicability of the ADA to title III websites but has not provided specific regulatory guidance.
  6. The federal courts are all over the place when it comes to whether a website must be meaningfully accessible to people with disabilities.
  7. There are two main views of whether websites are places of public accommodation. The first view is that websites are places of public accommodations under the ADA. That is the view of the First, Second, and Seventh Circuits. Courts adopting this view have relied on the service establishment category of the statutory definition, and particularly travel services being contained in the illustrative list of these establishments. That is, it would be irrational to conclude that persons who enter an office to purchase services are protected by the ADA, but persons purchasing the same services over the telephone or by mail are not. These courts also emphasized the critical nature of websites for transacting business today, and that Congress made it clear that the ADA was meant to adapt to changes in technology.
  8. The second view is that websites are not places of public accommodations under the ADA, but a denial of equal access to a website can support an ADA claim if the denial has prevented or impeded a disabled plaintiff from equal access to, or enjoyment of, the goods and services offered at the defendant’s physical facilities. This is the view of the Third, Sixth, Ninth, and 11th These courts have said that essentially all of the categories listed in 42 U.S.C. §12181(7) describe a physical location. That said, these courts also recognize that a website can be important to providing access to defendant’s place of public accommodation and to a disabled person’s ability to use and enjoy services provided those places if a nexus exists.
  9. California courts have consistently gone with the nexus theory, or gateway, when it comes to when websites must be meaningfully accessible to persons with disabilities.
  10. The plain meaning of the term “place,” weighs against an interpretation that a public accommodation need not be a physical place.
  11. Neither title III nor any implementing regulation provide a different definition of the word for the purposes of title III when it comes to what is a place of public accommodation.
  12. For that matter, the state of technology when the ADA was passed in 1992 shows that Congress was aware that the term “place of public accommodation,” carried a connotation of physical space and thus could exclude certain sales and retail establishments from the scope of title III based on a lack of connection to a physical space. After all, there were countless businesses operating outside of brick-and-mortar premises in 1990, including some that have been in operation for decades, such as mail order catalogs. Therefore, Congress’s decision to use the phrase “place,” the plain meaning which involves physical space, could easily be understood to be an intentional exclusion of businesses without any physical presence from the scope of title III.
  13. In 2000, United States Supreme Court noted that a “place,” connotes a physical space with respect to the New Jersey law protecting against discrimination in places of public accommodations.
  14. The plain meaning of the term “place of public accommodation,” is not dispositive because decades of conflict in federal case law interpreting the phrase establishes that the term is ambiguous.
  15. For that matter, the term “facility,” under the Code of Federal Regulations is also ambiguous for largely the same reasons.
  16. Since a place of public accommodation must per the applicable federal regulation be a “facility,” the only way a website might constitute a facility is if it specifically qualifies as one of the items listed in the definition of facility.
  17. The term “other… personal property,” appears at the end of the list of exclusively physical spaces and, as to “equipment” or other “personal property,” presumes the existence of a site where the property is located.
  18. It could make perfect sense that treating retail websites in one way and physical locations in another is the way to go. It is not absurd or irrational for Congress to address discrimination by online retailers in a different manner than the way it addresses discrimination by brick and mortar retailers. Subject to a disparate bundle of economic and business concerns. Each is very much its own animal.
  19. Since brick-and-mortar stores conduct business differently than do retail website, the type and extent of the burdens antidiscrimination measures impose on a business will necessarily differ depending on whether the business is operating through a physical storefront or a purely digital one.
  20. Given the different burden benefit calculus that applies in determining how to impose accessibility requirements on the two different types of retailers, it isn’t an absurd result to say that title III addresses only physical retailers and the question of how to deal with purely digital retailers remains a future question for Congress. Accordingly, it is not an absurd result to interpret title III as treating transactions differently depending upon whether they are purely digital or have a physical component. It also does not mean that this interpretation would inevitably frustrate the manifest purposes of the ADA as a whole.
  21. The mandate to interpret language broadly to take into account changes in technology is not a blanket authorization to require anything achieving the ADA’s overall goal of equal access. It is simply not clear that Congress intended such a result when drafting title III of the ADA.
  22. Despite DOJ taking the position over the years that websites are places of public accommodations, see this blog entry for example, the DOJ has consistently passed up the chance to draft regulations with respect to website accessibility despite courts being all over the place and pressure being put on DOJ by Congress and others to do so. The only conclusion that can be drawn from the failure of the DOJ to enact regulations is that neither Congress nor the DOJ officially endorses the approach that websites are places of public accommodations.
  23. In 2008, the ADA was amended and Congress passed up a chance to make clear that Internet sites were places of public accommodations.
  24. Congress and DOJ’s failure to provide clarification in the face of tremendous confusion is not a reason for a court to step in and provide that clarification. In fact, it is a reason for a court not to step in. That is, it is the job of the courts to interpret the law as written.

 

II

Thoughts/Takeaways

 

  1. The court makes a big deal over how the DOJ has not put forward regulations with respect to Internet accessibility. Just within the last couple of weeks, DOJ has notified the public that they intend to issue rules when it comes to Internet accessibility and title II entities. The DOJ has said that there will be proposed rules coming out with respect to Internet accessibility involving title II entities in April 2023 with the final rules coming in the summer of 2023. This court makes a big deal over how there are no regulations in the area. That will be changing next year. That said, I am not aware of a notice to issue regulations on Internet accessibility with respect to title III entities, which was the kind of entity involved in this case. It is entirely possible that the title II rulemaking process will very much inform the title III rulemaking process but that remains to be seen.
  2. The strongest argument that the Internet is not a place of public accommodation is that Congress passed up a chance to say as much when the ADA was amended.
  3. It isn’t accurate to my mind to say that there are only two views with respect to when an Internet site must be meaningfully accessible to a person with a disability. To my mind, there are currently four views. There were five views before the 11th Circuit mooted Gil v. Winn-Dixie. The four views are: the Internet is always a place of public accommodation; the Internet is never a place of public accommodation; gateway; and the Internet is a place of public accommodation if what is going on is of the type listed in 42 U.S.C. §12181(7). Before Gil v. Winn-Dixie was mooted, the 11th Circuit had a fifth theory namely, the Internet is never a place of public accommodation but the question is something else entirely. We discussed the now mooted decision in Gil v. Winn-Dixie, here.
  4. The cases that go with the gateway or nexus approach are all over the place with respect to what is a sufficient nexus. Some talk about a connection to the physical place while other cases talk about the person actually having to show that he or she or they actually visit that physical place.
  5. Very strange that the court talks about a 2000 Supreme Court decision suggesting that a place is a physical location but ignores an even more recent Supreme Court decision, South Dakota v. Wayfair, which we discussed here, strongly suggesting that a place does not have to be a physical place. To my mind, any plaintiff attorney in an Internet only accessibility situation commits legal malpractice by not bringing up South Dakota v. Wayfair. I am at a complete loss as to why this case has not come up as much as it should have in this kind of litigation. Perhaps, it is because it is not a disability discrimination case at all and attorneys are not looking at tax matters for analogous cases. South Dakota v. Wayfair is, in my opinion, the strongest argument that a place of public accommodation does not have to be a physical place.
  6. Could Congress really have meant to give such an advantage to Internet sites with respect to accessibility rules over brick and mortar sites considering the difference in costs of operating each kind of place? The court says such a distinction is perfectly logical, but I am not so sure of that, especially now given the maturity of e-commerce.
  7. California, as we discussed here, has made it very easy to get standing. However just because you can get standing, does not mean you win on the merits. Martinez says that under California’s Unruh Act, Internet only businesses not attached to a brick-and-mortar store do not have to worry about being meaningfully accessible to persons with disabilities. That said, don’t forget about the Rehabilitation Act. Plaintiff’s attorney will want to consider whether the particular Internet site takes federal funds or has outstanding PPP loans. The one issue that will have to be dealt with the Rehabilitation Act, assuming federal funds are involved, is proving causation because causation under the Rehabilitation Act is, “solely by reason of,” which after Bostock means precisely that. It isn’t clear to me whether a discriminatory facially neutral site could possibly reach the level of, “solely by reason of.”
  8. WCAG level AA of the most applicable WCAG standard is the best preventive law approach for minimizing successful website and accessibility lawsuits.
  9. Expect Unruh Act lawsuits alleging Internet and accessibility issues to go away down after this decision. At a minimum, you can bet every defense lawyer “go to,” case when it comes to Unruh Act Internet inaccessibility suits. You can also expect this case to be used by defense lawyers defending website inaccessibility lawsuits under title III of the ADA because much of the reasoning in this case is easily transferable. Of course, Martinez is nothing more than persuasive authority at the federal level, but even so defense attorneys would be foolish not to bring it up.

Today’s case of the day is Harkey v. NextGen Healthcare, Inc., here, decided by the Fifth Circuit in a per curiam decision on July 15, 2022. The case is better known as the sleepwalker claiming disability discrimination case, and it has been over the legal blogosphere due to its sensational facts, which are described in detail below. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning that summary judgment for the employer was justified; my thoughts on why this decision could have gone the other way; and thoughts/takeaways/questions. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts (taken directly from the opinion)

NextGen hired Jennifer Harkey in March 2008 as an “Implementation Specialist.”[**] She worked without incident for over a decade. In September 2018, she was promoted to the position of “Sales Specialist,” effective November 1, 2018.

On the evening of October 10, 2018, Harkey was attending an out-of-town national sales conference for NextGen at a large hotel in St. Louis, Missouri. After a dinner and a few drinks with a female co-worker, Harkey headed up to her room. She then watched some television and fell asleep.

Around midnight, another employee of NextGen who was also attending the conference, Scott O’Donnell, had just returned to his room from the hotel bar when he heard a knock at the door. Rather than peering through the peephole, assuming it was one of the other men who he had just been at the hotel bar with, he opened the door. There stood Harkey, whom he did not recognize. Harkey says that she was wearing a “black cotton robe” that fell to her knees and that she was naked under the robe.

O’Donnell was startled and stepped backwards. Harkey entered the room without looking at O’Donnell. O’Donnell said something along the lines of “I think you’re in the wrong room. What are you doing here? You need to get out” and remembers repeating “You’re in the wrong room.” Harkey said nothing, walked over to a made bed and got in it, then pulled the sheets all the way up to her face. According to O’Donnell, “She just laid there, didn’t move and was nonresponsive to me asking her to leave and telling her she was in the wrong room.” Harkey did not touch O’Donnell during the incident. Moreover, O’Donnell states that she never propositioned him or sexually harassed him.

Still, O’Donnell was concerned. He was a married man on an out-of-town business trip, and a woman was in a bed in his hotel room. He called his supervisor, Sean Murtagh, to the room. Murtagh also did not recognize Harkey as a NextGen employee. Murtagh decided to contact Jill Burke, the director of Human Resources at NextGen, who was also attending the conference. When Burke arrived, she attempted to wake Harkey repeatedly. Burke pulled back the covers and Murtagh snapped a picture of her. Burke was able to waken Harkey, but Harkey was disoriented. Burke also described Harkey as “smell[ing] of alcohol” and “exposing skin.” Although he was further away, Murtagh testified that he did not smell alcohol and that her robe fully covered her, so that no “personal part[s]” were exposed.

Eventually, hotel security was called, and it was determined that Harkey’s room was next door to O’Donnell’s. According to Burke’s notes, which she discussed during her deposition, as security helped get Harkey back to her room, Harkey was “very apologetic” and embarrassed. According to Burke, Harkey stated that she must have been sleepwalking, which she had done from time to time when she was a child. Burke’s notes also recall that Harkey said that she “wasn’t assaulted or anything” in the hotel room, that she was fine, and that she was “so sorry.” O’Donnell went back into his room, gathered his stuff, and moved to a different hotel room.

O’Donnell was asked to write an e-mail about what happened. At that point, he was extremely uncomfortable “because of the accusatory-sounding questions that [Burke] had asked [him] earlier in the night about what happened.” Because of his discomfort at that line of questioning, he mentioned wanting to speak with a lawyer before writing an e-mail about the incident. He later testified about his concern with how his wife would react to learning about the situation and, more generally, about how it might be interpreted in the “Me Too” era.

The next morning, Harkey went downstairs for breakfast and business meetings. At some point in the morning, she was asked to go up to a conference room where she saw Burke sitting alone at a long conference table. Harkey said she had “a flashback” and remembered her face from the night before. Burke told Harkey to sit down and that she “was in very big trouble,” “needed to be concerned,” and that Burke wanted to discuss last night. Harkey told her about the evening, as she could recall it. Harkey told her she had sleepwalked throughout her childhood but that it rarely happens. She was also asked about what she was wearing. Harkey stated that she felt from the beginning of the conversation that Burke had made her mind up about what had happened. Burke told her to pack her bags and that she was suspended on paid leave. Multiple times in the conversation, Burke called Harkey a “liability.” Burke told Harkey to “call a doctor,” and Harkey said she would quickly do so.

Harkey called her doctor for a referral as she was waiting for her flight home and began the process for making an appointment with a diagnostician, Dr. Sudan. Harkey sent an e-mail to Burke on October 12, 2018 (the day after the incident), informing her of the medical updates and assuring her that she was taking the situation seriously. On October 16, Harkey sent an e-mail updating Burke that she had been able to get an appointment with Dr. Sudan for the following week. Later the same day that she sent that e-mail, on October 16, Harkey was terminated.

When Harkey was able to see her doctor, he diagnosed her condition as somnambulism, otherwise known as “sleep walking disorder.” On September 4, 2019, Harkey brought a lawsuit in state court alleging that she was fired on account of a disability. It was removed to federal court, with the operative complaint alleging violations of the ADA and the TCHRA.

II

Court’s Reasoning That Summary Judgment Is Justified for the Employer

 

  1. The controlling question is whether the plaintiff suffered an adverse employment action because of (emphasis in opinion) her disability.
  2. Even if plaintiff’s sleepwalking disorder was a disability under the ADA, she was properly terminated because of what happened when she sleepwalked.
  3. The Fifth Circuit has previously held that where a plaintiff’s outburst was arguably caused by his PTSD, the company was justified in terminating that individual because the outburst also violated company policy.
  4. The ADA does not insulate emotional or violent outbursts blamed on an impairment.
  5. A prior Fifth Circuit case also held that an employee verbally abusing his supervisor for denying his vacation request was also grounds for termination despite the employee suffering from bipolar disorder. That decision said that while the employee’s reaction could have been attributed to his bipolar disorder, the ADA is not a get out of jail free card to avoid accountability for the employee’s actions.
  6. That plaintiff’s severe, unprofessional, and inappropriate conduct was purportedly caused by her sleepwalking disorder is of no matter, as the ADA does not give employees license to act with impunity.
  7. When plaintiff sleepwalked into her male coworker’s room in the state that she was in, the employer had a reason to fire her, and the ADA is no barrier to that termination.

 

III

My Thoughts on Why This Decision Could Have Gone the Other Way

 

  1. It certainly appears that the director of HR rushed to judgment and that little independent investigation ever occurred. I join labor and management side lawyers on social media talking about how a rush to judgment by HR is never a good idea.
  2. There was no interactive process.
  3. Magic words are not required to begin the interactive process, as we discussed here for example, and most certainly what happened here is enough to put an employer on notice that a reasonable accommodation needed to be discussed.
  4. Plaintiff told HR the morning after the incident that she had a record of sleepwalking in childhood. Remember, a person with a record of a disability, 42 U.S.C. §12102, is protected under the ADA.
  5. Plaintiff made clear that she was seeking the assistance of medical professionals to figure all this out, but the employer terminated her before that could all be accomplished.
  6. Bostock v. Clayton County, which we discussed here, has changed causation. The question is whether the disability was a determining factor in the termination. Arguably in this case, it was. Again, magic words are not necessary and there was a complete absence of any interactive process.
  7. It is an oversimplification to say, especially after Bostock, that sleepwalking being the cause of the conduct is of no matter.

 

IV

Thoughts/Takeaways/Questions

 

  1. Was plaintiff a valuable employee? She worked there without incident for over a decade and had been promoted to the position of sales specialist.
  2. Did plaintiff ever have to work with Scott O’Donnell, the person whose room she walked into, in her job?
  3. Was plaintiff a direct threat to anyone during the incident or in the future? Could any future direct threat be eliminated with reasonable accommodations?
  4. I can’t see the United States Supreme Court deciding in favor of the plaintiff on this one.
  5. Could she do the essential functions of the job with or without reasonable accommodation? If not, might there have been another job in the company that she could have done with or without reasonable accommodations? Was traveling even an essential function of her job? Of any job in the company?
  6. The employer won this one. However, an employer would do well to look at §§III, IV of this blog entry prior to terminating an individual when something like this occurs.
  7. What company policy was violated?
  8. This isn’t the first time we talked about the line between how disability may manifest itself in the form of bad conduct. See this blog entry for example.
  9. The decision is a per curiam and is not published. I asked Prof. Leonard Sandler (a Clinical Law Professor at the University of Iowa whom I had the privilege of meeting in person just recently when I did a training for Disability Rights Iowa), for more information about per curiam opinions. He sent me this article. After reading that article, a strong argument can be made that our case of the day was not appropriate for a per curiam decision.

Yesterday was the 32nd anniversary of the ADA. People with disabilities and disability rights have certainly come a long way, but there is certainly much more to go.

 

Today’s blog entry is the result of a case that was sent to me in a discussion that I had with several colleagues about breed restrictions. We also talked about the HUD circular, which I have previously talked about before, here. I have also quite frequently taken the position that the circular simply would not survive Kisor, which case we discussed here. A published case from the Southern District of Florida, Warren v. Delvista Towers Condominium Association, here, that Marcy LaHart, a Florida attorney focusing on animal law, litigated back in 2014 has caused me to reconsider whether the circular would not get judicial deference under Kisor. The circular may also even survive the major questions doctrine. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning that emotional support animals/service animals are reasonable accommodations under the Fair Housing Act; court’s reasoning that the Fair Housing Act preempts the Miami-Dade breed restriction ordinance; why the HUD circular just might control even after Kisor; why the HUD circular might survive the major questions doctrine; and thoughts/takeaways. Of course, the reader is free to concentrate on any or all of the categories.

 

I

Facts

 

Plaintiff owned and resided in a condominium with a no pet policy, with the exception of birds and fishes. Plaintiff’s psychiatrist diagnosed plaintiff with severe recurrent major depression disorder as well as PTSD. On June 12, 2013, plaintiff’s psychiatrist strongly recommended to the Condominium Association it make a reasonable accommodation to its no pet policy pursuant to the Fair Housing Act so that plaintiff could live with his assistance animal, Amir, because of the dog’s therapeutic use and function. Plaintiff sent a letter to the Condominium Association explaining his disorder and attaching the letter from his psychiatrist and requesting a reasonable accommodation to the no pet policy. Subsequent to that letter, the Condominium Association’s legal counsel sent correspondence to the psychiatrist and to the plaintiff requesting additional information to properly evaluate plaintiff’s claim that he required a reasonable accommodation. The letter also threatened plaintiff with the possibility of a lawsuit if the information was not provided within 10 days. So, plaintiff retained legal counsel who again petitioned for the accommodation on plaintiff’s behalf. The Condominium Association never granted the accommodation, but plaintiff did continue to keep his dog in his dwelling. Miami-Dade County had a pit bull dogs prohibited ordinance, and the Condominium Association argued that the accommodation was per se unreasonable because of that fact.

 

II

Court’s Reasoning That Emotional Support/Service Animals Are Reasonable Accommodations.

 

  1. Prevailing on a failure to accommodate claim under the Fair Housing Act means a plaintiff has to establish: 1) he is disabled or “handicapped,” within the meaning of the Fair Housing Act; 2) he requested a reasonable accommodation; 3) such accommodation was necessary to afford him an opportunity to use and enjoy his dwelling; and 4) the defendant refused to make the requested accommodations.
  2. Discrimination under the Fair Housing Act includes a refusal to make reasonable accommodations to its rules, policy, practices, or services, when such accommodation may be necessary to afford a person equal opportunity to use and enjoy a dwelling.
  3. The 11th Circuit has held that an accommodation is unreasonable if it imposes an undue financial and administrative burden on the housing provider or if it fundamentally alters the nature of the provider’s operations.
  4. The Sec. of HUD has the authority and responsibility for administering the Fair Housing Act. In exercising that authority, HUD promulgated 24 C.F.R. §100.204, which provides two examples of situations where an accommodation has been found to be reasonable. In particular, §100.204(b) says that a building with a no pets policy must accommodate a blind person and his seeing-eye dog, otherwise the blind person does not have an equal opportunity to use and enjoy a dwelling. That example specifically demonstrates that an alteration to a no pet policy building to allow for an assistance animal is a reasonable accommodation.
  5. Since an essential element of both 42 U.S.C. §3604(f)(3)(b) and 24 C.F.R. §100.204(a) is that the accommodation be reasonable, it follows that allowing a person with a disability to keep a dog in a housing unit with a no pet policy is a reasonable accommodation.
  6. Defendant made no allegation that allowing plaintiff to have an assistance animal would impose an undue burden or fundamentally alter the nature of the provider’s operations.
  7. HUD has previously said that emotional support animals are in play when it comes to allowing people with disabilities to compensate for their disabilities to enjoy and use dwellings. So, it simply doesn’t matter whether plaintiff’s dog is especially trained.
  8. HUD does allow for the denial of a reasonable accommodation in the form of an assistance animal where the animal’s behavior poses a direct threat and its owner takes no effective action to control the animal’s behavior so that the threat is mitigated or eliminated. Such a risk requires the existence of a significant risk and not a remote or speculative risk.
  9. An assistance animal can be denied where the specific assistance animal in question poses a direct threat to the health or safety of others that cannot be reduced or eliminated by another reasonable accommodation. It also can be denied if the specific assistance animal in question would cause substantial physical damage to the property of others that cannot be reduced or eliminated by another reasonable accommodation.
  10. Whether the animal is a direct threat is distinctly a question of fact.

 

III

Court’s Reasoning That the Fair Housing Act Preempts the Breed Restrictions in the Miami-Dade Ordinance

 

  1. State laws interfering with or contrary to the laws of Congress made in pursuance of the Constitution are invalid.
  2. The Fair Housing Act specifically provides that any law of the state, political subdivision, or other such jurisdiction purporting to require or permit any action that is a discriminatory housing practice is invalid.
  3. Complying with the Fair Housing Act includes altering a building’s no pet policy to accommodate a blind person and his seeing-eye dog because without that accommodation, a blind person will not have an equal opportunity to use and enjoy the dwelling that a person without a disability would have.
  4. The clear and manifest purpose of Congress is to provide individuals with disabilities equal use and enjoyment of their dwelling.
  5. Any state or local ordinance that prevents the Fair Housing Act from achieving its purpose of equal housing opportunity to individuals with disabilities can’t stand. Therefore, the Miami-Dade County ordinance is preempted by the Fair Housing Act and the particular breed of plaintiff’s dog is completely irrelevant.

 

IV

Thoughts on Why the HUD Circular Just Might Survive Kisor

 

  1. Previously we talked about Kisor v. Wilkie, here. In that blog entry, we discussed how the Supreme Court will look at whether agency interpretations of their regulations is entitled to judicial deference. Let’s do a deeper dive into that by looking at the factors laid out in that decision.
  2. Is 24 C.F.R. §100.204(b) genuinely ambiguous? It certainly is. We do know that seeing-eye dogs are protected under the HUD final regulations, but what about dogs used by people with disabilities that act as service dogs for other kinds of disabilities? What about what HUD calls assistance animals? What about emotional support animals? All of that is far from clear from just looking at the regulation.
  3. Is the circular a reflection of HUD’s authoritative, expertise-based, fair, or considered judgment? You certainly could argue that it is. After all, Justice Kagan in her opinion specifically mentioned ADA regulations as being within an agency’s authoritative, expertise-based, fair, or considered judgment, and Fair Housing Act is a similar kettle of fish to the ADA.
  4. Uncertainty certainly exists when looking at the regulation, and more than one right answer also exists when looking at the regulation.
  5. The text, structure, history, and purpose of the regulation certainly leads to the circular as being one possibility.
  6. The circular is certainly an authoritative or official position of HUD and it implicates HUD’s expertise in some form. Finally, HUD certainly has expertise in this area of the law, and the circular quite arguably reflects the fair and considered judgment of HUD.
  7. The current circular did not create any unfair surprise to regulated parties, even if it did make a mess of things.

 

V

Thoughts on Why the HUD Circular Might Survive the Major Question Doctrine

 

  1. Justice Gorsuch listed several criteria in EPA v. West Virginia, here, about when would the major question doctrine apply, including: 1) doctrine applies when an agency’s claim to power involves a matter of great political significance; 2) doctrine may apply when seeking to regulate a significant portion of the American economy; and 3) doctrine may apply when an agency seeks to intrude into an area that is a particular domain of state law.
    1. Unclear whether animals and dwellings involves a matter of great political significance.
    2. The circular certainly regulates a significant portion of the American economy.
    3. Animals in housing is not a particular domain of state law.
    4. Unclear what other factors Justice Gorsuch might think is important.

 

  1. Justice Gorsuch also said that when figuring out congressional intent the following factors must be looked at: 1) the legislative provisions that which the agency seeks to rely with a view to their place in the overall statutory scheme. Oblique or elliptical language will not supply a clear statement; 2) examination of the age of focus of the statute the agency invokes in relation to the problem the agency seeks to address; 3) examination of the agency’s past interpretation of the relevant statute. A contemporaneous and long-held executive branch interpretation of the statute is entitled to some weight as evidence of the statute’s original charge to an agency; and 4) skepticism is merited when there is a mismatch between an agency’s challenged action and its congressionally assigned mission and expertise. That is when an agency has no comparative expertise in making certain policy, Congress presumably would not task it with doing so.
    1. The legislative provisions with respect to the Fair Housing Act is just the general grant of authority that one typically sees with respect to agencies having the ability to make regulation to carry out the legislation.
    2. The Fair Housing Act has been around for some time and is clearly focused on preventing discrimination so that people can find, use, and enjoy their dwellings.
    3. The original circular came out in 2013. So, the idea of emotional support animals/service animals in dwellings has been around for some time. While the current circular has made a mess of things, it wasn’t really a surprise in light of the 2013 circular and in light of case law that has evolved over time.
    4. There is no mismatch between the circular and HUD’s congressionally assigned mission and expertise as HUD certainly has comparative expertise in making policy in this area.

VI

Thoughts/Takeaways

 

  1. With NFL season starting shortly, it is perfectly appropriate to conduct further review. Upon further review, an argument can be made that the circular does survive Kisor and very well is entitled to judicial deference for the reasons mentioned above.
  2. My thanks to Marcy LaHart for sending me this case.
  3. I don’t recommend sending a lawsuit possibility letter, as the Condominium Association lawyer did, when a tenant makes a request for reasonable accommodation as that might be construed as retaliation, which the Fair Housing Act prohibits.
  4. The opinion uses the term emotional support animals and assistance animals and also cites to the regulation talking about a service dog. As we know from the circular, all of those terms are in the HUD circular and mean different things to HUD.
  5. Remember that with respect to the common areas, as we know from previous blog entries, the ADA has its own rules with respect to service animals, see here for example.
  6. It would take a lot of money for a Condominium Association to argue that the circular should not get deference after Kisor. Further, it is not a slam dunk that the circular will not receive deference per Kisor. So, when it comes to animals and dwellings, preventive law would demand that the circular be the first authority that is looked at if an animal is requested as a reasonable accommodation in order to allow a person with a disability to enjoy his or her or they dwelling.
  7. The Fair Housing Act still uses the term “handicapped,” unfortunately. “Handicapped,” under the Fair Housing Act is defined in the same way as the ADA and the Rehabilitation Act, though there is a dispute about whether the ADA amendments, which amended how certain definitional terms must be interpreted, are applicable to the Fair Housing Act.
  8. This is not the only case discussing breed restrictions. We previously discussed a similar case here.
  9. Pitbulls can make good pets/therapy dogs/service animals. Over the weekend, I saw a show on the NFL network discussing the rise and fall and rise of Michael Vick. In that show, the owner of a pit bull rescue place talked about how many of the pitbulls rescued from Michael Vick’s dogfighting operation wound up making excellent pets and even therapy dogs.
  10. It is unclear whether the major question doctrine would apply to the circular because the case establishing the doctrine involves a regulation and not an agency interpretation of its regulation. Logically speaking, it would seem Kisor would be the case that would apply to the circular and not EPA v. West Virginia.
  11. Marcy informs me that the case settled for $100,000 and attorneys fees and that the settlement was not confidential.
  12. Here is a picture of plaintiff with Amir, the emotional support animal discussed in our case of the day. My thanks to Marcy LaHart for sending it along.
Plaintiff with Amir. Pic sent by plaintiff’s attorney, Marcy LaHart.

Last week, both EEOC and the Department of Transportation came out with guidances related to people with disabilities. The EEOC added to their running guidance on Covid-19, while the DOT came out with a bill of rights for airline passengers with disabilities. The blog entry is divided into two categories: latest amendment to the long-running EEOC document on Covid-19; and the DOT Bill of Rights for airline passengers with disabilities. With respect to the DOT Bill of Rights, what I did for that is cut and paste the entire Bill of Rights and then add my thoughts where appropriate, which is a tactic I have done before in this blog with other guidances.

 

I

Latest Amendment to the Long-Running EEOC Document on Covid-19

 

With respect to the EEOC guidance, Robin Shea in her blog, here, does a fabulous job of breaking down the new additions to the EEOC document. I am just going to add a few of my own thoughts. Otherwise, you can’t go wrong by looking at Robin’s discussion of the latest additions to the EEOC document. The EEOC document can be found here. My thoughts are immediately below:

 

  1. CDC guidance has changed radically over time and so has American behavior. The CDC guidance combined with American behavior means that direct threat is really more of a macro issue in a way that it wasn’t before. Direct threat is still going to be an issue with respect to a particular individual that is at increased risk of consequences should they get Covid-19. Otherwise, the CDC guidance, which really can only focus on hospitalization because so few people are reporting Covid-19 due to utilizing home tests, becomes very difficult to apply as a matter of practice.
  2. The CDC guidance can all change in a matter of moments. The BA5 omicron variant is becoming quite prevalent, and so everyone has to be prepared for changes at any moment in time.
  3. The interactive process is more critical than ever. The do’s and don’ts of the interactive process we discussed here.
  4. While the EEOC talks about how accommodation process might be delayed because of the pandemic, you do need to remember, as we discussed here, that an unreasonable delay in granting an accommodation is actionable.
  5. I recently read that 60% of legal professionals no longer want to work in the office full-time. I also recently read that for all kinds of employees the number is close to 50% for those not wanting to work in the office full-time. So, expect a lot of telecommuting reasonable accommodation requests.
  6. Direct threat to others in light of American behavior and the latest CDC guidance is almost impossible now to divine. The current CDC guidance and the direct threat analysis get a bit easier with respect to direct threat to self.
  7. The EEOC document talks about fully vaccinated. What does that even mean? Two shots? Two shots and a booster? Two shots and two boosters? I recently read an Israeli study that found a second booster was very helpful for individuals over 50. It wouldn’t surprise me at some point if the CDC says everybody should get a second booster. Even so, “fully vaccinated,” is a really uncertain term, especially if it is meant to convey a certain level of Covid-19 protection.

 

 

II

DOT Bill of Rights (Here)

 

Airline Passengers with Disabilities Bill of Rights

This Bill of Rights describes the fundamental rights of air travelers with disabilities under the Air Carrier Access Act and its implementing regulation, 14 Code of Federal Regulations (CFR) Part 382.

Please click this link to download the latest version of the Bill of Rights.

The Bill of Rights consists of:

  1. The Right to Be Treated with Dignity and Respect.
  2. The Right to Receive Information About Services and Aircraft Capabilities and Limitations.
  3.  The Right to Receive Information in an Accessible Format.
  4. The Right to Accessible Airport Facilities.
  5. The Right to Assistance at Airports.
  6. The Right to Assistance on the Aircraft.
  7. The Right to Travel with an Assistive Device or Service Animal.
  8. The Right to Receive Seating Accommodations.
  9. The Right to Accessible Aircraft Features.
  10. The Right to Resolution of a Disability-Related Issue.

Click on any of the rights above to be linked to an explanation of that right in this document. The Bill of Rights does not expand or restrict the rights of air travelers with disabilities. Rather, it provides a convenient summary of existing law. Because the explanations in this document may not be as precise as the regulations themselves, the explanations link to the actual regulatory text for your reference.

Important Information About the Bill of Rights

Does the Bill of Rights reflect current information?

  • The Bill of Rights is a living document. DOT will update the Bill of Rights as regulations change.
  • DOT published this Bill of Rights in July 2022.

My thoughts: interesting question as to whether the Bill of Rights, which interprets DOT Air Carrier Access Act’s regulations, will be given deference per Kisor v. Wilkie, here.

Does the Bill of Rights apply to me?

  • The Bill of Rights applies to individuals with a disability which is defined in Part 382 as persons with a physical or mental impairment that permanently or temporarily impacts a major life activity such as walking, hearing, or breathing.

My thoughts: the Air Carrier Access Act doesn’t always work the same way as the ADA. For example, it is possible that a temporary disability under the ADA may not be protected. We have talked about temporary disabilities and the ADA numerous times before, such as here. It also makes sense that temporary disabilities would be protected under the Air Carrier Access Act because it is quite foreseeable that a person with a temporary disability could be flying and need assistance.

Does the Bill of Rights apply to my trip?

  • The Bill of Rights applies to all flights of U.S. airlines, and to flights to or from the United States by foreign airlines.

My thoughts: what is a U.S. airline? The Air Carrier Access Act actually applies to all carriers, see here, which is a far broader term than what we think of as U.S. airlines.

  • The obligation to comply with government safety and security laws is a general exception to airlines’ obligations described in this Bill of Rights.
  • Also, some airlines are approved by DOT to use an alternative method to comply with a regulation when it provides an equivalent level of accessibility or it meets the objective of Part 382. Visit the docket for the Equivalent Alternative Determinations and Conflict of Law Waivers for more information.

Are airline contractors subject to the same obligations as airlines?

  • Airlines must make sure their contractors that provide services to the public meet regulatory obligations. Airlines are legally responsible for the action or inaction of their contractors.

My thoughts: there are several Different Air Carrier Access Act regulatory provisions, such as here, that make it crystal clear that airline responsibility to persons with disabilities is a nondelegable duty.

 1. The Right to Be Treated with Dignity and Respect.

An airline, including its employees and contractors, may not discriminate against an individual with a disability because of his or her disability.

My thoughts: what does “because of,” mean? The answer is no longer simple after Bostock, as we discussed here.

  • For example, an airline may not refuse transportation or other services because of one’s disability or resulting appearance or involuntary behavior.
  • An airline cannot require air travelers with disabilities to accept special services or subject them to restrictions that do not apply to other passengers, except passengers with disabilities may need to check-in early, provide advanced notice or documentation, or pre-board to receive certain disability-related services.
  • Airline personnel who deal with the traveling public must be trained to be aware of passengers with disabilities’ needs and how they can be accommodated safely and with dignity.
  • Airline employees and contractors must receive refresher training at least once every three years. Complaint Resolution Officials (the airlines’ experts in resolving disability-related issues) must receive refresher training annually.

My thoughts: get someone knowledgeable to do the training (providing training on ADA and on ADA related laws is a big part of my practice). Keep in mind, that there are several intersecting laws when it come to airlines dealing with people with disabilities and they are: Airline Deregulation Act, Air Carrier Access Act, Americans with Disabilities Act, and state negligence laws. It may be worthwhile for a trainer to have a background in each of these laws because the obligations vary depending upon the law involved. Making it even more complicated is that issues of preemption are also involved as a result of the Airline Deregulation Act.

Reference links (14 CFR): Section 382.11 (General Discrimination Prohibitions)Section 382.19 (Prohibition on Refusal to Transport)Section 382.23 (Medical Certificates)Section 382.27 (Advance Notice to Obtain Certain Services)Section 382.33 (Discriminatory Restrictions)Section 382.141 (Training of Airline Personnel and Contractors)Section 382.143 (Recurrent Training of CRO).

Click Back to The Bill of Rights Section

 2. The Right to Receive Information About Services and Aircraft Capabilities and Limitations.

Airlines must provide air travelers with disabilities information upon request about the facilities and services available to them. The information must be
specific to the aircraft scheduled for the flight, unless unfeasible (for example, an unpredictable aircraft substitution occurs).

The information airlines must provide includes:

  • any aircraft-related, service-related, or other limitations on the ability to accommodate passengers with a disability, such as limitations on level-entry boarding (Airlines must provide this information to any passenger who states that he or she uses a wheelchair for boarding, even if he or she did not request the information.).
  • any limitations on the availability of storage on the aircraft
  • for assistive devices.
  • the specific location of seats with movable aisle armrests.
  • whether the aircraft has an accessible lavatory.
  • the types of services that are not available on the flight.

Reference link (14 CFR): Section 382.41 (Advance Information).

Click Back to The Bill of Rights Section

 3. The Right to Receive Information in an Accessible Format.

An airline’s primary website must be accessible if the airline uses an aircraft with more than 60 seats. In addition, airlines must ensure that automated kiosks they install after December 2016 at U.S. airports with 10,000 or more enplanements per year are an accessible model, until 25% of kiosks at each airport location are the accessible model.

My thoughts: we discussed this issue in this blog entry, here.

Passengers who identify as needing visual or hearing assistance must receive prompt access to the same trip information as other passengers at the gate, ticket area, customer service desk, and on the aircraft (so long as it does not interfere with airline employees’ safety duties).

My thoughts: with respect to the Deaf, deaf, and hard of hearing communities, I can assure you that this is simply not happening, especially with respect to the aircraft (don’t even get me started on the lack of captioning with respect to the behind the seat viewing options), if my experience flying recently is any indication.

Airlines must train personnel to recognize requests for communication accommodation. The personnel must be trained to use the most common methods for communicating with individuals who are blind, deaf, or hard of hearing that are readily available, such as writing notes, for example. Personnel must also be trained to use established means for communicating with deaf-blind passengers when they are available, such as passing out Braille cards if available, reading an information sheet that a passenger provides, or communicating through an interpreter, for example.

My thoughts: I simply do not understand the focus on deaf-blind in this regulation apart from other disabilities that have communication challenges. Perhaps, DOT was rather inartfully trying to say that airlines must also be aware of deaf-blind passengers and their needs, which is absolutely true. It could have been phrased a lot better.

Reference links (14 CFR): Section 382.43 (Website Accessibility)Section 382.53 (Information for Blind, Deaf, or Hard of Hearing at Airports)Section 382.57 (Kiosk Accessibility)Section 382.119 (Information for Blind, Deaf, or Hard of Hearing on Aircraft)Section 382.141 (Training of Airline Personnel and Contractors).

Click Back to The Bill of Rights Section

 4. The Right to Accessible Airport Facilities.

Airlines and U.S. airport operators are both responsible for the accessibility of airport facilities. The Air Carrier Access (ACAA) and Department’s implementing regulation in 14 CFR Part 382 cover airlines’ obligations. Various other federal statutes and regulations apply to U.S. airport operators, for example, the Americans with Disabilities Act (ADA), Section 504 of the Rehabilitation Act of 1973, and their implementing regulations. Airlines and airport operators have concurrent obligations to ensure accessibility of airport facilities.

My thoughts: airports are invariably but not always owned and operated by nonfederal governmental entities. As such, most airports, which are owned by nonfederal governmental entities, are subject to title II of the ADA and to §504 of the Rehabilitation Act because they take federal funds. If it is a private airport, the airport would be subject to title III of the ADA and to §504 of the Rehabilitation Act as you have to assume a private airport would take federal funds. The obligations of the title II or title III entity are nondelegable, as we discussed in this blog entry and in this blog entry.

This Bill of Rights describes the obligations of airlines under the ACAA. In general, airlines must ensure that terminal facilities that they own, lease, or control are readily accessible and usable by passengers with disabilities at U.S. airports, and readily usable at foreign airports. Airports are responsible for ensuring compliance of facilities that they own, operate, or lease to other parties, including airlines.

Airlines must ensure an accessible route between the gate and the aircraft boarding location. When level-entry boarding is not available, such as boarding via a jet bridge, airlines and U.S. airports must ensure ramps or mechanical lifts are available to service most flights. Airlines, in cooperation with airport operators, must also provide service animal relief areas at the airport.

My thoughts: I am consulting on several cases where a person with a disability under the care of an airline suffers a personal injury. When that happens, you have to deal with the intersection of the Airline Deregulation Act, the ADA, the Air Carrier Access Act, and state negligence laws. There are also issues of preemption, so it can all get pretty complicated.

Reference links (14 CFR, unless otherwise noted): Section 382.51 (Accessibility of Airport Facilities)Section 382.95 (Assistance With Respect to Boarding and Deplaning)Section 382.99 (Agreements Between Airlines and Airports)Section 382.101 (Other Boarding and Deplaning Assistance)28 CFR 35 (Nondiscrimination on the Basis of Disability in State and Local Government Services)49 CFR 27 (Nondiscrimination on the Basis of Disability-Receipt of Federal Financial Assistance)49 CFR 37 (Transportation Services for Individuals with Disabilities).

Click Back to The Bill of Rights Section

 5. The Right to Assistance at Airports.

Passengers with disabilities must be provided prompt and timely enplaning and deplaning assistance, upon request, from properly trained airline personnel.

 

My thoughts: the Air Carrier Access Act regulations, such as here for example, make it quite clear that “upon request,” is not parenthetical. Also, the phrasing is confusing because it is upon request of the person with a disability and not the airline or its subcontractor’s personnel that is the critical question.

 

This must include:

  • the services of personnel and the use of ground wheelchairs, accessible motorized carts, boarding wheelchairs, on-board wheelchairs, and ramps or mechanical lifts, as needed.
  • assistance with moving from the curb to the departing flight, assistance with transportation between gates to make connections, and assistance with moving from the arriving flight to the curb for pick-up.
  • assistance with accessing key functional areas of the terminal such as the ticket counter or baggage claim, or to a restroom entrance (if time allows).
  • escorting a passenger with a service animal to an animal relief area at a U.S. airport.

Passengers who request assistance in advance of arriving at the airport need to identify to airline personnel once they arrive at the airport or the gate to receive the assistance.

Airlines cannot require the passenger to accept a specific form of assistance that he or she does not request (ex: requiring a wheelchair when a sight guide was requested).

In addition, the airline cannot leave a passenger unattended for more than 30 minutes in a wheelchair or other device, in which the passenger is not independently mobile.

Reference links (14 CFR): Section 382.11 (General Discrimination Prohibitions)Section 382.91 (Assistance in Moving Within Terminal)Section 382.95 (Assistance With Respect to Boarding and Deplaning)Section 382.103 (Prohibition on Unattended Immobile Wheelchair Passenger).

Click Back to The Bill of Rights Section

 6. The Right to Assistance on the Aircraft.

Airlines must allow a passenger with a disability who self-identifies at the gate as needing additional time or assistance to board, stow accessibility equipment, or be seated, the opportunity to board before all other passengers.

  • Except, an airline with an open seating policy has been approved by DOT to accommodate extra-time passengers after an initial group of passengers have boarded, but early in the boarding process.

Passengers with disabilities must be provided prompt and timely boarding and deplaning assistance, upon request, from properly trained airline personnel.

  • This includes assistance with moving to and from seats.
  • If level loading bridges are not available, a lifting device must be provided to assist persons with limited mobility safely on and off the aircraft at most U.S. airports, except when boarding smaller aircraft (less than 19 seats).
  • For smaller aircraft and non-primary U.S. airports or foreign airports, airlines must ensure boarding and deplaning assistance by any available means acceptable to the passenger.
  • However, airlines must never hand-carry a passenger (directly pick up a passenger’s body in the arms of airline personnel) on or off an aircraft, except in an emergency.

Once a passenger with a disability has boarded, airlines must provide assistance, if requested, such as:

  • moving to or from the lavatory, including using an on-board chair to assist, if requested.
  • stowing and retrieving carry-on items, including assistive devices.

Reference links (14 CFR): Section 382.93 (Preboarding)Section 382.95 (Assistance With Respect to Boarding and Deplaning)Section 382.101 (Other Boarding and Deplaning Assistance)Section 382.111 (Services Required On the Aircraft)Section 382.113 (Services Airlines are Not Required to Provide On the Aircraft).

Click Back to The Bill of Rights Section

 7. The Right to Travel with an Assistive Device or Service Animal.

Traveling with Assistive Devices on Aircraft

Airlines must allow assistive devices as carry-ons in the cabin free of charge consistent with safety rules.

  • This includes medical devices and/or a personal amount of medication that assist the passenger with his or her disability.
  • Assistive devices must not count against the passenger’s carry-on limit.
  • Priority in-cabin stowage (either a closet or a row of seats designated for seat strapping) must be available for at least one normal-sized collapsible manual wheelchair in any aircraft with 100 or more passenger seats.
  • Airlines that use seat strapping should provide space for at least two of these wheelchairs if stowing the second wheelchair would not displace passengers.
  • The priority stowage requirements do not apply to older aircraft.

Manual wheelchairs that cannot be transported in the cabin must be transported in the cargo compartment consistent with safety and security requirements. Airlines must accept a battery powered wheelchair, if it fits in the cargo compartment and can be transported consistent with safety and security requirements. Airlines must also provide for the checking and timely return of assistive devices at the gate for use in the terminal. Should an airline lose, damage, or destroy the wheelchair or other assistive device, the airline must provide compensation in an amount up to the original purchase price of the wheelchair or device.

Reference links (14 CFR): Section 382.67 (Priority Stowage of Wheelchairs In-Cabin)382.121 (Assistive Devices In-Cabin)Section 382.125 (Stowage of Assistive Devices In Cargo)Section 382.131 (Liability for Loss, Damage, or Delay of Assistive Devices).

Traveling with Service Animals

Airlines must permit a service dog to accompany a passenger with a disability in the aircraft cabin unless:

  • the dog poses a direct threat to the health or safety of others;
  • the dog causes a significant disruption or misbehaves in the cabin or at an airport gate area;
  • the dog’s carriage would violate a U.S. or foreign law;
  • current DOT forms weren’t provided as required by the airline for the trip.

A decision by airline personnel to refuse transportation of a service dog with the passenger must be based on an individualized and objective assessment of the dog that considers the nature of the risk and the likelihood that harm will actually, or continue to, occur. The assessment should also consider whether mitigations are available.

Airlines cannot deny transportation of the service dog if there are means that would mitigate the problem.

Reference link (14 CFR): Sections 382.72 -382.80 (Service Animals).

Click Back to The Bill of Rights Section

My thoughts: we discussed the DOT final rule when it comes to animals on airplanes here.

 8. The Right to Receive Seating Accommodations.

Airlines must provide specific seats to the following passengers who identify to airline personnel as needing the seat, if the seat exists on the same class of service on the aircraft:

  • Movable Aisle Armrest–When the passenger uses an aisle chair to board and cannot transfer readily over a fixed aisle armrest.
  • Bulkhead Seat or Other Seat–When the passenger travels with a service animal that is best accommodated at a particular seat.
  • Greater Leg Room–When the passenger has a fused or immobilized leg.
  • Adjoining Seat–For a companion providing a certain type of assistance, such as:
    • A personal care attendant who performs a function that is not required to be performed by airline personnel, for example assisting a passenger with a disability with eating;
    • A reader for a passenger who is blind or low vision;
    • An interpreter for a passenger who is deaf or hard of hearing; or
    • A safety assistant if a passenger with a disability cannot assist with their own evacuation.

For passengers not specified above, airlines must provide a seat assignment that best accommodates his or her disability if the passenger meets the airline’s procedures.

Airlines must provide seating accommodations using one of three methods: the block method, the priority method, or preboarding (if the airline does not provide advance seat assignments). Visit our Seating Accommodation Methods page to learn more about these seating methods and for the seating methods of the largest U.S. airlines and their operating partners, which account for approximately 95 percent of domestic passenger air traffic. Information regarding seating methods of certain foreign air carriers is also provided.

Reference link (14 CFR): Sections 382.81-382.87 (Seating Accommodations).

Click Back to The Bill of Rights Section

 9. The Right to Accessible Aircraft Features.

New aircraft delivered to U.S. airlines after April 1992 and to foreign airlines after May 2010 must have accessible features that include:

  • Movable aisle armrests on half of the aisle seats, if the aircraft has 30 or more seats.
    • DOT has approved some airlines to meet the purpose of this requirement by alternative means that provide substantially the same or greater accessibility to passengers with disabilities.
  • Priority stowage space for wheelchairs in the cabin for aircraft with 100 or more seats.
  • At least one accessible lavatory, if the aircraft has more than one aisle.
  • An on-board wheelchair, if the aircraft has an accessible lavatory, or the passenger gives the airline advance notice that he or she can use an inaccessible lavatory and needs an on-board chair to reach it.

Airlines with older aircraft with 30 or more seats that replace the aisle seats, must ensure half of these seats have movable aisle armrests. Also, if an airline replaces a lavatory on a twin-aisle aircraft, there must be an accessible lavatory.

Reference links (14 CFR): Section 382.61 (Movable Aisle Armrests)Section 382.63 (Lavatories)Section 382.65 (On-Board Wheelchairs).

Click Back to The Bill of Rights Section

 10. The Right to Resolution of a Disability-Related Issue.

Airlines must make available a Complaint Resolution Official (CRO) in a timely manner, this may be by phone.

  • The CRO should be trained as an expert in resolving disability-related issues and be able to resolve disability-related issues on the spot.
    • Passengers with disabilities who are not satisfied with air travel services, may file a complaint with the airline or DOT. Complaints concerning issues under the airport’s responsibility can be filed with the airport, FAA or DOJ.
  • Airlines must respond and directly address the disability related issues in your complaint in writing within 30 days, but airlines are not required to address complaints sent more than 45 days after the incident unless the complaint is referred to the airline by DOT.
  • DOT will refer all disability-related complaints it receives within 6 months of the incident for response by the appropriate carrier.
  • DOT investigates all disability-related complaints it receives to determine whether a violation of the Air Carrier Access Act occurred.
  • Passengers with disabilities who have pressing questions about their rights should ask to speak with the airline’s CRO. Airlines must have a CRO available at each airport they serve during all times the airline is operating at that airport. Passengers may also contact the DOT Disability Hotline at 1-800-778-4838. The hours for the hotline are 8:30am to 5:00pm Monday-Friday.

Reference links (14 CFR): Section 382.151 (CROs)Section 382.155 (Carrier Responses to Complaints)Section 382.159 (Filing a Complaint with DOT).

 

My thoughts: as we have discussed previously in the blog, here for example, no private cause of action exists for violations of the Air Carrier Access Act regulations.

An emerging issue is whether when it comes to accommodating a person with a disability in an employment situation, are you accommodating the disability or are you accommodating the essential functions of the job. The easy scenario where that matters is when dealing with an employee with a service dog. Recently, Hobby Lobby was sued by the EEOC for denial of letting an employee use a service dog, here. However, there are other situations where the distinction between accommodating the essential functions of the job v. accommodating a person’s disability can matter a great deal. Our case of the day, Wilson v. Sec. of Veterans Affairs, an unpublished decision from the 11th Circuit decided June 3, 2022, is such a case. As usual the blog entry is divided into categories and they are: facts; court’s reasoning reversing summary judgment on the failure to accommodate claim; court’s reasoning affirming summary judgment on the retaliation claim; and thoughts/takeaways. Of course, the reader is free to concentrate on any or all of the categories.

 

I

Facts (taken directly from the opinion with very very minor changes for readability and flow).

 

Wilson, a veteran, suffers from degenerative disc disease and partial paralysis in both feet. In February 2009, Wilson started as a probationary Veteran Claims Examiner (VCE) for the Atlanta VA Regional Office. At the time, the Atlanta VA Regional Office only permitted permanent employees to use the on-site parking deck. Probationary VCEs could park at an off-site parking area roughly one mile from the office, from which they could either take a shuttle or walk to work. The VA shuttle ran for one hour in the morning and one hour in the evening. It ran sporadically at best and could only hold up to 25 individuals at a time—even then, there were only 15 seats. And because the shuttle lacked handlebars, standing passengers were forced to either be “pressed against an individual” or “use [their] body as a stance” to avoid falling over. Roughly 80 probationary VCEs commuted per day. Because of the shuttle’s shortcomings, Wilson effectively faced the option of either walking to work—which “put enormous pressure on her nerves” and caused her legs and feet to swell—or parking in unassigned handicapped spaces in the on-site parking deck.1 Wilson made the latter choice, leading to numerous parking tickets and counseling memos about her unauthorized parking.

 

As an employee with a disability, Wilson was told to bring any requests she may have for workplace accommodations to Celesta Chapin, her Vocational Rehabilitation Counselor with the VA’s Rehabilitation and Employment Division. Between March and July 2009, Wilson communicated her needs for a parking accommodation on six occasions to VA personnel—in all instances, Wilson stated that the VA refused to accommodate her requests in violation of the Rehabilitation Act. Wilson identified six distinct failures by the VA to accommodate or respond to her requests for an accommodation, occurring on the following dates in 2009: (1) March 31, (2) April 13, (3) April 17,2 (4) May 12, (5) July 7, and (6) July 8 and thereafter. The record evidence shows the following regarding these events.

 

With respect to the first failure, Wilson emailed her vocational rehabilitation counselor with the VA’s rehabilitation and employment division that the parking situation at the VA aggravated her disability and that she needed a parking accommodation. The rehabilitation counselor told Wilson that she would make a workplace accommodation request to human resources on her behalf, but Wilson never received follow-up from that meeting.

 

With respect to the second failure, Wilson stated that she met with Eboni White, her direct supervisor, after receiving a counseling memo for unauthorized parking in the on-site parking deck. During the meeting, Wilson explained that her disability forced her to park on-site and that she was working with Chapin to obtain permission to park in the onsite parking deck, for which she needed White’s assistance. White then said that she would communicate with Chapin. However, White did not relay Wilson’s request to Chapin or anyone in HR, nor did White follow up with Wilson regarding her request.

 

With respect to the third failure, Wilson stated that she emailed Praileau Young, an HR assistant, to ask where she could find the paperwork necessary to submit a parking accommodation request. Young responded that she had forwarded Wilson’s email to the “appropriate person,” but Wilson never received the requested information. On the same day, Wilson emailed Chapin again to confirm the status of her request. Chapin responded that she thought Wilson dropped the matter, but then requested from Wilson the name of her supervisor so that Chapin could request an assessment. Wilson responded and asked Chapin to submit the request on her behalf.

 

With respect to the fourth failure, in the same affidavit, concerning the fourth instance, Wilson stated that she met again with Chapin on May 12, 2009. At this meeting, Chapin reminded her to discuss her request with her supervisor. Wilson testified that she believed management was ignoring her since she had already spoken with White to no avail.

 

With respect to the fifth failure, on July 1, 2009, union representative Rebecca Manning gave her own parking badge to Wilson with permission to use it to park at the on-site parking deck. Because the badge did not work, Wilson asked an HR Liaison, Vivian DeLoach, for help. On July 7, 2009, DeLoach informed Wilson that she was not authorized to park there. Making this the fifth occasion, Wilson testified that she believed then that her request had been denied after all.

 

With respect to the last failure, Wilson testified that she emailed DeLoach on July 8, 2009, to request “the appropriate paperwork to file for reasonable parking accommodations due to my service-connected disability,” which she identified as “degenerative disc disease, with [herniated] discs and partial paralysis in both of [her] feet.” Wilson stated that she would be willing to provide medical documentation and facilitate contact with her doctor if necessary. On July 16, 2009, Unit Chief John Clayton Smith—who replaced White as Wilson’s direct supervisor—followed-up to verbally inform Wilson that he consulted with HR and that they “d[id] not see a connection [between parking privileges] and the essential function of you performing your job.” (Emphasis mine). Wilson interpreted this as the sixth instance of the VA’s failure to accommodate. Wilson then emailed DeLoach for written confirmation of Smith’s “denial” of her request for accommodations. Smith followed up with Wilson via email and reiterated that neither he nor HR saw the need for an accommodation but did not deny the request outright. DeLoach responded that although she was not the approving official for accommodation requests, she would assist Smith in helping Wilson understand how to properly submit a request.

 

On July 22, 2009, Wilson filed a complaint with the Equal Employment Opportunity Commission (EEOC) alleging discrimination by the VA. Within hours of filing the complaint, Wilson received a letter from Smith titled “Certification of Need for a Reasonable Accommodation.” Smith therein acknowledged Wilson’s accommodation request and requested, inter alia, medical documentation to evaluate her request. The letter also reminded Wilson yet again that “parking is not a condition of employment, nor related to the essential functions of your position.” This was the same language that Smith used in previously denying her request. (Emphasis mine). Wilson testified that she never provided the documentation because she understood the letter to be a preemptive denial. Wilson did not receive any follow-up.

 

Wilson testified that she soon thereafter suffered harassment. This harassment consisted, in part, of what she considered a pretextual disciplinary reprimand for leaving overtime work 45 minutes early because she felt ill. Wilson also applied for a Rating Veteran’s Service Representative position (RVSR) around this time but was not selected despite her allegation that she was more qualified than the selected applicant. On September 3, 2009, Wilson withdrew her EEOC complaint on advisement from her EEOC counselor. Her EEOC counselor discussed the matter with DeLoach, who responded, “if [parking] was going to be a problem [Wilson] might want to reevaluate her decision to work there.” Wilson stated that she continued to park in on-site handicapped spaces and amassed several parking tickets and letters of counseling because she believed that the VA unlawfully denied her accommodations request. Wilson also received a negative performance appraisal during this time, to which she filed a union grievance. Shortly thereafter, Jeannie Daniel, the VA Regional Assistant Education Officer, recommended to the VA regional Director Alfred Bocchicchio that Wilson be terminated for poor performance. The VA terminated Wilson on December 18, 2009, with a letter citing both her parking violations and poor performance as justification. Wilson applied again for the RVSR position in 2011, and was again not selected, despite her allegation that here, too, she was the most qualified candidate. Wilson stated that she believed she was not selected on either occasion because the decisionmakers knew of her disability and her EEOC complaint.

 

Wilson brought suit alleging both discrimination against terror and the terms and conditions of her employment and retaliation. The District Court granted summary judgment in favor of the Veterans Affairs administration and Wilson appealed.

 

II

Court’s Reasoning Reversing Summary Judgment on the Failure to Accommodate Claim

 

  1. An employer’s obligation to provide a reasonable accommodation is triggered when the employee makes a specific demand for a reasonable accommodation.
  2. After the employer is placed on notice of the employee’s disability and request for an accommodation, the employer has to make a reasonable effort to determine the appropriate accommodation.
  3. Determining an appropriate reasonable accommodation may mean going through the interactive process.
  4. It is when the employer fails to provide the accommodation after it was demanded that the plaintiff can sustain a discrimination claim under the Rehabilitation Act.
  5. Wilson made repeated requests (see §I of this blog entry), for the specific accommodation to park in the VA parking deck. She repeatedly explained her reasoning and her request to many different people at the VA who either discouraged, ignored, or provided inadequate follow-up to those requests.
  6. A reasonable juror could find that Wilson’s first two communications with the VA were requests for an accommodation.
  7. It is sufficient that Wilson requested to park on site and justified her request by informing the VA about her mobility limitations and her belief that an accommodation would resolve the issue.
  8. It took the VA four months to even attempt to initiate the interactive process, despite being repeatedly placed on notice of Wilson’s disability and her request. As such, a jury could find that the VA’s four month long inaction in addressing Wilson’s request constitutes a failure to accommodate in violation of its obligations under the Rehabilitation Act regardless of Wilson’s subsequent failure to provide the documentation.

 

III

Court’s Reasoning Affirming Summary Judgment on the Retaliation Claim

 

  1. Wilson’s argument that her parking requests were independent protected activity is new on appeal. Since a court will generally not consider an issue raised for the first time on appeal, Wilson waived the argument.
  2. Wilson does not demonstrate that the VA’s other basis for termination, i.e. her subpar work performance, was pretextual. The VA produced evidence that the regional VA director considered Wilson’s failing to meet the minimum monthly expected and products and produce numerous errors in her work that had to be corrected by supervisors. She also requested overtime pay for hours that she did not work and received a counseling memo for doing so. Wilson did not dispute that her record was unsatisfactory and did not produce evidence that would lead a reasonable jury to find pretext. She therefore cannot show that the protected activity was causally connected to the adverse employment action and the rich allegation claim fails.

 

IV

Thoughts/Takeaways

 

  1. The VA’s focus on the essential functions of the job rather than on accommodating her disability got the VA in a bunch of trouble here. As a matter of preventive law, per Felix-which we discussed here-, it is much better to focus on accommodating the disability rather than focusing on accommodating the essential functions of a particular job. Taking this approach will certainly prevent litigation down the road and make the person with the disability feel valued so that he/she/they will want to succeed.
  2. You want to make sure at trial that all arguments are preserved for appeal.
  3. Magic words, as we have discussed numerous times in our blog, such as here, are not required for activating the interactive process.
  4. Always utilize the interactive process whenever a request for a reasonable accommodation/modification is made. The interactive process is not optional in my opinion despite the court’s use of the word, “may.”
  5. Don’t forget about the do’s and don’ts of the interactive process, which we discussed here.
  6. An unreasonable delay in granting a reasonable accommodation, as we discussed here, is actionable.
  7. Since this involved a federal employee, it was §501 of the Rehabilitation Act that was involved and not the ADA. However, by statute §501 of the Rehabilitation Act, 29 U.S.C. §791, here, tracks title I of the ADA.
  8. The trend is very much that a failure to accommodate claim as a separate cause of action.
  9. Case illustrates how an underlying disability discrimination claim can go forward even where a retaliation claim does not. I have also seen cases where it would to allegation act claim goes forward but the underlying disability discrimination claim does not.
  10. Negative reports on an employee can of course be done at any time. However where an employee has initiated a request for reasonable accommodation, you want to make sure such a report is part of your regular processes and not an attempt to justify disciplinary proceedings after a reasonable accommodation request has been made. Such an action could also rate the question over whether the performance issued would have been cured if reasonable accommodations have been granted in the first place.

Happy Fourth of July everyone.

 

Last week, I was in Chicago visiting family. I also had a chance to participate in a panel discussing the Federal Bar Association’s disability inclusion success story as part of the ABA’s Collaborative Bar Leadership Academy. I had a great time doing that. I did not get back until Wednesday late afternoon and spent Thursday and Friday catching up. So, I did not get a chance to put up a blog entry for last week. I don’t often skip a week so to speak. The blog entry for this week is West Virginia v. EPA, here, which is a case everyone is talking about. I thought I would add my own perspective. The case is 89 pages but the reasoning can be broken down pretty easily. The case is not about the ADA at all, but it certainly has relevance because there is an awful lot of administrative regulations, guidances, etc. associated with the ADA and the Rehabilitation Act and related laws. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning that the EPA rule went too far in the absence of explicit legislative authority; Justice Gorsuch’s opinion discussing when the major question doctrine gets activated and how to go about applying it; Justice Kagan dissenting opinion; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

The facts are really simple. The EPA came up with a rule to require electrical companies to shift to renewables. The EPA analyzed the regulation and decided that the regulation went too far. The Biden administration said there would be new rules issuing. However, that didn’t stop various State Atty. Gen.’s from suing to stop the original rule.

 

II

Court’s reasoning that the EPA rule went too far In the Absence of Explicit Legislative Authority (C.J. Roberts)

 

  1. Extraordinary grants of regulatory authority are rarely accomplished through modest words, vague terms, or subtle devices.
  2. Congress typically does not use oblique or elliptical language to empower an agency to make a radical or fundamental change to a statutory scheme.
  3. The major question doctrine took hold because it refers to an identifiable body of law developed over a series of significant cases all addressing a particular and recurring problem: agencies asserting highly consequential power beyond what Congress could reasonably be understood to have granted.

 

III

Justice Gorsuch’s (joined by Justice Alito), Opinion Discussing When the Major Question Doctrine Gets Activated and How to Go about Applying It

 

  1. Major question doctrine applies when an agency’s claim to power involves a matter of great political significance.
  2. The major question doctrine may apply when seeking to regulate a significant portion of the American economy.
  3. The major question doctrine may apply when an agency seeks to intrude into an area that is a particular domain of state law.
  4. ¶ II 1-3 is not necessarily an exclusive list of factors.
  5. In figuring out whether congressional intent is sufficiently clear, the following factors must be looked to:
    1. the legislative provisions on which the agency seeks to rely with a view to their place in the overall statutory scheme. Oblique or elliptical language will not supply a clear statement.
    2. An examination of the age and focus of the statute the agency invokes in relation to the problem the agency seeks to address.
    3. An examination of the agency’s past interpretation of the relevant statute. A contemporaneous and long-held executive branch interpretation of a statute is entitled to some weight as evidence of the statute’s original charge to an agency.
    4. Skepticism is merited when there is a mismatch between an agency’s challenged action and its congressionally assigned mission and expertise. That is when an agency has no comparative expertise in making certain policy, Congress presumably would not task it with doing so.

 

IV

Justice Kagan Dissenting Opinion (Justice Breyer and Justice Sotomayor joining).

 

  1. The case should not have been decided by the Supreme Court at all because the EPA said they would propose new rulemaking and the rule at issue was never on the table for the future. As such, the majority opinion is nothing more than an advisory opinion on the scope of any new proposed rule by the EPA, which is not something the courts are supposed to do.
  2. The statute at issue allowed for generation shifting as it refers to, “systems.”
  3. The major question doctrine is a new concept and has never been used before by the Supreme Court.
  4. The case the majority relies on is about Chevron deference and not the doctrine of major questions.
  5. The administrative state serves a valuable purpose because members of Congress often don’t know enough and often they know that they don’t know enough to regulate sensibly on an issue.

 

V

Thoughts/Takeaways

 

  1. Everybody is now trying to channel Justice Scalia, both the majority and the dissent do that. Undoubtedly Justice Scalia will go down in history as one of the more influential Justices.
  2. It is unclear just how far this major question doctrine is going to go. I am usually not a fan of the slippery slope argument as it is generally a logical fallacy, but sometimes the worry is justified. For example, when Justice Gorsuch says that the major question doctrine may apply when an agency seeks to regulate a significant portion of the American economy, one has to wonder just how far it goes. After all, virtually all regulations regulate a significant portion of the American economy.
  3. I spent a legislative session working for the Illinois Joint Committee on Administrative Rules. That entity has a dual purpose. First, proofreading the regulations. Second, and more importantly to my mind, assessing whether the regulations exceeded legislative authority. The Joint Committee on Administrative Rules is actually within the legislative branch and not the executive branch. If the Joint Committee on Administrative Rules decided that a set of regulations exceeded legislative authority, then the legislators on that committee could vote as such. Voting that the regulations exceeded legislative authority would put the courts on notice that the regulations were in a bit of trouble. During my tenure there, which admittedly was many many years ago, I don’t recall the legislators of that committee ever voting that a regulation exceeded legislative intent. I do recall agencies backing down occasionally from a proposed regulation when they were advised by Joint Committee on Administrative Rules staff that unless the regulations were changed in such a way, a vote against that particular regulation would occur. One wonders if it isn’t a good idea as a preventive law matter for every legislative body to create a Joint Committee on Administrative Rules after this decision.
  4. The major question doctrine is a way to sidestep the issue of the continuing viability of Chevron deference.
  5. Legislators going forward are going to want to be as specific and explicit as possible when it comes to delegating regulatory authority to executive agencies when it comes to their legislation. I recognize that such specificity is not always easy with respect to the legislative sausage making process so to speak.
  6. I would not be surprised to see the highest courts of various states follow this case. One wonders how such cases will play out with respect to the question of legislative authority in a state where an entity like the Illinois Joint Committee on Administrative Rules exist and that committee did not find that a particular regulation exceeded statutory authority.

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

 

I

McCray Facts

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

II

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

 

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

II

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

 

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

III

Di Franco Facts Taken Directly from the Opinion

 

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

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

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

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

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

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

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

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

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

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

IV

DiFranco’s Reasoning That Failure to Accommodate Claims Can Proceed

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

V

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

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

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

 

 

 

VI

Thoughts/Takeaways From McCray and DiFranco

 

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

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

 

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

 

I

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

 

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

 

II

Thoughts/Takeaways

 

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

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

 

I

Facts

 

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

 

II

DOJ’s Reasoning That the ADA Is a Nondelegable Duty

 

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

 

III

Thoughts/Takeaways

 

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