I hope everyone had a great Memorial Day weekend. Today’s blog entry deals with the question of whether the Civil Service Reform Act, Title VII, and the ADA can all coexist at the same time. The case of the day is Lucas v. American Federation of Government Employees decided on March 29, 2023,  lower court opinion here, currently pending before the US Court of Appeals for the D.C. Circuit. As usual, the blog entry is divided into categories and they are: trial court opinion; EEOC amicus brief at the appellate court level detailing why the lower court got it wrong that the CSRA is the exclusive remedy for the plaintiff; EEOC’s view that unions can be liable for a hostile work environment; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Trial Court Opinion

 

The facts of the case are rather straightforward. The plaintiff complained of harassment by her bargaining unit on the basis of sex and disability. She also alleged a hostile work environment. The trial court judge, Amy Berman Jackson, said that the ADA and Title VII claims had to be dismissed because the Civil Service Reform Act mandated that this was the exclusive province of the Federal Labor Relations Authority. Plaintiff appealed and the EEOC weighed in with an amicus brief detailing why in their opinion, the lower court got the decision wrong.

 

II

EEOC’s Amicus Brief at the Appellate Court Level Detailing Why the Lower Court Got It Wrong that CSRA Is the Exclusive Remedy for the Plaintiff

 

  1. Discrimination claims under Title VII and the ADA are not at all the same thing as unfair representation claims even when both sets of claims are premised on the same conduct.
  2. Discrimination and unfair representation claims are distinct and independent causes of action, each with its own unique requirements for establishing a violation.
  3. Considering the distinct requirements, a union’s conduct can constitute discrimination under Title VII or the ADA, but not unfair representation under the CSRA (Civil Service Reform Act).
  4. Title VII and the ADA have a broader collection of remedies than what exists under the CSRA, including compensatory and punitive damages, so a federal court may often provide the only form in which a plaintiff can obtain adequate relief or discrimination by a federal-employee union.
  5. Both the ADA and Title VII apply to labor unions, including federal-employee unions.
  6. Title VII makes it unlawful for a union to exclude or to expel from membership, or otherwise to discriminate against, any individual because of the individual’s race, color, religion, sex, or national origin. It also makes it unlawful for a union to limit, segregate, or classify its membership or applicant for membership, or to classify or fail or refuse to refer for employment any individual, in any way which would deprive or tend to deprive an individual of employment opportunities, or would limit such employment opportunities or otherwise adversely affect that person’s status as an employee or as an applicant for employment, because of such individual’s race, color, religion, sex, or national origin. It also prohibits unions from causing or attempting to cause an employer to discriminate against an individual in violation of Title VII.
  7. The ADA makes similar conduct the unlawful discussed in ¶ 6 immediately above, when based on a disability. The ADA also prohibits additional forms of discrimination, including not making reasonable accommodation to the known physical or mental limitations of an otherwise qualified individual with a disability.
  8. The protections afforded by Title VII and the ADA are not limited to union members or members of a particular bargaining unit. After all, Title VII encompasses discrimination against any individual, while the ADA encompasses discrimination again a qualified individual with a disability. Neither statute is limited to discriminatory conduct that breaches a collective bargaining agreement and both encompass harassment claims against unions.
  9. A union’s duty of fair representation extends only to employees in the unit it represents.
  10. The CSRA encompasses a narrow category of discrimination that prohibits discrimination based on sex or “handicapping condition,” with regard to the terms or conditions of membership in the labor organization.
  11. Citing to a variety of cases, including a Ninth Circuit case, a union’s conduct may constitute discrimination even when it does not constitute unfair representation. That is, a plaintiff can still have a Title VII or ADA claim even if she can prove a violation of the labor laws.
  12. In a footnote, the EEOC cites to a D.C. Circuit case and notes that a union’s conduct can constitute both discrimination and unfair representation.
  13. The standard for proving unfair representation is more rigorous than Title VII and the ADA because courts generally accord deference to a union in the labor context.
  14. On the other hand, there is no reason to grant unions the same deference when it comes to determining if they discriminated against their members on the basis of a protected classification. Instead, “plaintiff-friendly pleading standards,” under Title VII and the ADA makes clear that the free hand unions have in labor matters does not extend to discrimination suits. Therefore, proving discrimination may be less difficult than proving unfair representation.
  15. The Supreme Court has acknowledged that a breach of the union’s duty of fair representation may prove difficult to establish, thereby making it noteworthy that Congress thought it necessary to afford the protections of Title VII against unions as well as employers.
  16. The CSRA, Title VII, and the ADA all have different procedural requirements, including different statute of limitations.
  17. Title VII and the ADA have a broader collection of remedies than under the CSRA. For example, compensatory and punitive damages are available under title VII and the ADA, while under the CSRA, they are extremely difficult (compensatory), or impossible (punitive), to obtain under the CSRA.
  18. The CSRA does not allow for jury trials while Title VII and the ADA do.
  19. Limiting a plaintiff to CSRA remedies when the claims also support Title VII and/or the ADA undermines the central purpose of antidiscrimination statutes, which is making persons whole for injuries suffered on account of unlawful employment discrimination.
  20. No indication that Congress intended for the CSRA to foreclose plaintiff from seeking and obtaining remedies available under Title VII or the ADA. In fact, the Supreme Court has noted that legislative enactments in the area have longer evinced a general intent to accord parallel or overlapping remedies against discrimination.
  21. EEOC guidance treats the CSRA as a parallel remedy when it specifically notes that when a federal employee files a discrimination charge with the EEOC against a federal union, that employee can also file an unfair labor practice charge as well.
  22. Courts have long treated discrimination and unfair representation claims as separate and distinct causes of action. As a result, the CSRA does not extend to discrimination claims under Title VII or the ADA, and the courts have jurisdiction over those claims that could also support an unfair representation claim.
  23. Several courts, including the D.C. Circuit, have recognized concurrent jurisdiction in the EEOC and the National Labor Relations Board and this should be no different.

 

III

EEOC’s View that Union Can be Liable for a Hostile Work Environment

 

  1. Both Title VII and the ADA make it unlawful for unions to discriminate against individuals based on sex or disability.
  2. The phrase “discriminate against,” in ordinary usage encompasses harassment as harassment includes distinctions or differences in treatment among protected individuals. Every Court of Appeals has said as much. Same goes for retaliation when a hostile work environment is a part of it.
  3. The statutory text of the CSRA is actually broader than Title VII and the ADA when it comes to discrimination that is prohibited, because it does not include the restriction that the conduct must be related to terms, condition, or privileges of employment.

 

IV

Thoughts/Takeaways

 

  1. In case you were wondering where the title for this blog entry comes from, we have seen this argument before. In Fry, the Supreme Court said that an individual needing a service animal did not have to exhaust the administrative remedies of IDEA. We also discussed how the Supreme Court in Perez said that a person seeking compensatory damages also does not have to exhaust administrative remedies associated with IDEA. Both of those decisions went off on the argument that the same set of facts could give rise to claims that address very different purposes. I must confess I was a bit surprised that the EEOC did not reference either of these Supreme Court decisions in their amicus brief.
  2. It seems to me that the EEOC has a very strong argument in light of the analogous Supreme Court opinions mentioned in IV1 of this blog entry. Also, considering those Supreme Court decisions, and the current configuration of this court, it would not surprise me in the least if the EEOC ultimately prevails on its argument should this case get to the Supreme Court.
  3. One wonders if the Supreme Court or even the appellate court would adopt a similar approach to Fry when deciding whether to allow claims to go ahead under Title VII and the ADA when a claim could also be unfair representation. It is perfectly logical to me how the same reasoning could be easily applied to this context. In other words, seeking out what is the gravamen of the complaint, asking hypothetical questions, etc.
  4. It also makes sense to me considering the configuration of the current Supreme Court, that the Supreme Court would find unions could be liable for creating a hostile work environment.
  5. Definitely looking forward to seeing how the D.C. Court of Appeals ultimately decides this case. Fascinating to me how Fry and Perez’s reasoning can be extended to other areas of the law.
  6. While I get the point EEOC was making about pleading standards under the various laws, I would not call Title VII and particularly the ADA, plaintiff friendly pleading standards.

Back in 2015, I blogged on the ACA proposed final regulations as it affected non-discrimination against persons with disabilities, here (this blog entry is still worthwhile reading). It turns out that the rule was finalized in 2016. Somehow, I didn’t blog on that. Now, HHS has issued a revised final rule for §1557. I thought it would be useful to look at it with respect to how it deals with nondiscrimination against persons with disabilities as usual, the blog entry is divided in the categories, and they are: history of the rule; highlights of the rule with respect to persons with disabilities; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

History of the Rule

On August 1, 2013, the HHS Office for Civil Rights (OCR) published a Request for Information in the Federal Register , 78 FR 46558,[1] followed by issuance of a notice of proposed rulemaking (NPRM) on September 8, 2015 (2015 NPRM), 80 FR 54171.[2] OCR finalized the first section 1557 regulation on May 18, 2016 (2016 Rule), 81 FR 31375. On June 14, 2019, the Department published a new section 1557 NPRM (2019 NPRM), 84 FR 27846, proposing to rescind and replace large portions of the 2016 Rule.[3] On June 12, 2020, OCR publicly posted its second section 1557 final rule (2020 Rule), which was published in the Federal Register on June 19, 2020, 85 FR 37160. The 2020 Rule remains in effect, save for the parts enjoined or set aside by courts, until the effective date of this final rule. In the meantime, entities that are subject to the 2020 Rule must continue to comply with the parts of the 2020 Rule that remain in effect.

On January 5, 2022, the Department proposed to amend CMS regulations such that Exchanges, issuers, and agents and brokers would be prohibited from discriminating against consumers based on their sexual orientation or gender identity in the HHS Notice of Benefit and Payment Parameters for 2023 NPRM, 87 FR 584 (January 5, 2022). CMS did not finalize the amendments in the Notice of Benefit and Payment Parameters for the 2023 final rule, 87 FR 27208 (May 6, 2022); instead, CMS proposed to make the amendments to its regulations in forthcoming Departmental rulemaking.

On July 25, 2022, OCR publicly posted the section 1557 NPRM associated with this rulemaking (2022 NPRM or Proposed Rule), which was published in the Federal Register on August 4, 2022, 87 FR 47824. OCR invited comment on the Proposed Rule by all interested parties. The comment period ended on October 3, 2022. In total we received 85,280 comments on the Proposed Rule.[4] Comments came from a wide variety of stakeholders, including but not limited to: civil rights/advocacy groups, including language access organizations, disability rights organizations, women’s advocacy organizations, and organizations serving lesbian, gay, bisexual, transgender, queer, or intersex (LGBTQI+) individuals; health care providers; consumer groups; religious organizations; academic and research institutions; reproductive health organizations; health plan organizations; health insurance issuers; State and local agencies; and tribal entities. Of the total comments, 79,126 were identified as being submitted by individuals. Of the 85,280 comments received, 70,337 (80 percent) were form letter copies associated with 30 distinct form letter campaigns.

 

 

II

Highlights of the Rule with Respect to Persons with Disabilities

 

  1. Regulations go into effect July 5, 2024 with a couple of exceptions.
  2. The regulations apply to: 1) every health program or activity, any part of which receive federal financial assistance, directly or indirectly, from the department; 2) every health program or activity administered by the department; and 3) every health program or activity administered by a ACA title I entity.
  3. Disability is defined in the same way as the ADA and the Rehabilitation Act.
  4. Health program or activity means: (1) Any project, enterprise, venture, or undertaking to: (i) Provide or administer health-related services, health insurance coverage, or other health-related coverage; (ii) Provide assistance to persons in obtaining health-related services, health insurance coverage, or other health-related coverage; (iii) Provide clinical, pharmaceutical, or medical care; (iv) Engage in health or clinical research; or (v) Provide health education for health care professionals or others.
  5. Regulations apply to all of the operations of any entity principally engaged in the provision or administration of any health projects, enterprises, ventures, or undertakings described in paragraph four immediately above, including, but not limited to, a State or local health agency, hospital, health clinic, health insurance issuer, physician’s practice, pharmacy, community-based health care provider, nursing facility, residential or community-based treatment facility, or other similar entity or combination thereof. A health program or activity also includes all of the operations of a State Medicaid program, Children’s Health Insurance Program, and Basic Health Program.
  1. Regulations define who is a qualified interpreter for an individual with a disability with respect to either utilizing video remote interpreting services or on site appearance.
  2. Any covered entity that employs 15 or more individuals has to designate and authorize a §1557 coordinator.
  3. A covered entity must implement written effective communication procedures in its health programs and activities describing the covered entity’s process for ensuring effective communication for individuals with disabilities when required under § 92.202. At a minimum, a covered entity’s effective communication procedures must include current contact information for the Section 1557 Coordinator (if applicable); how an employee obtains the services of qualified interpreters the covered entity uses to communicate with individuals with disabilities, including the names of any qualified interpreter staff members; and how to access appropriate auxiliary aids and services.
  4. A covered entity must implement written procedures in its health programs and activities describing the covered entity’s process for making reasonable modifications to its policies, practices, or procedures when necessary to avoid discrimination on the basis of disability as required under § 92.205. At a minimum, the reasonable modification procedures must include current contact information for the covered entity’s Section 1557 Coordinator (if applicable); a description of the covered entity’s process for responding to requests from individuals with disabilities for changes, exceptions, or adjustments to a rule, policy, practice, or service of the covered entity; and a process for determining whether making the modification would fundamentally alter the nature of the health program or activity, including identifying an alternative modification that does not result in a fundamental alteration to ensure the individual with a disability receives the benefits or services in question.
  5. Covered entity cannot rely on an adult instead of a qualified interpreter to interpret or facilitate communication except in certain limited circumstances, including: (1) Require an individual with limited English proficiency to provide their own interpreter, or to pay the cost of their own interpreter; (2) Rely on an adult, not qualified as an interpreter, to interpret or facilitate communication, except: (i) As a temporary measure, while finding a qualified interpreter in an emergency involving an imminent threat to the safety or welfare of an individual or the public where there is no qualified interpreter for the individual with limited English proficiency immediately available and the qualified interpreter that arrives confirms or supplements the initial communications with an initial adult interpreter; or (ii) Where the individual with limited English proficiency specifically requests, in private with a qualified interpreter present and without an accompanying adult present, that the accompanying adult interpret or facilitate communication, the accompanying adult agrees to provide such assistance, the request and agreement by the accompanying adult is documented, and reliance on that adult for such assistance is appropriate under the circumstances; (3) Rely on a minor child to interpret or facilitate communication, except as a temporary measure while finding a qualified interpreter in an emergency involving an imminent threat to the safety or welfare of an individual or the public where there is no qualified interpreter for the individual with limited English proficiency immediately available and the qualified interpreter that arrives confirms or supplements the initial communications with the minor child; or (4) Rely on staff other than qualified interpreters, qualified translators, or qualified bilingual/multilingual staff to communicate with individuals with limited English proficiency.
  6. Video remote interpreting services. A covered entity that provides a qualified interpreter for an individual with limited English proficiency through video remote interpreting services in the covered entity’s health programs and activities must ensure the modality allows for meaningful access and must provide: (1) Real-time, full-motion video and audio over a dedicated high-speed, wide-bandwidth video connection or wireless connection that delivers high quality video images that do not produce lags, choppy, blurry, or grainy images, or irregular pauses in communication; (2) A sharply delineated image that is large enough to display the interpreter’s face and the participating person’s face regardless of the person’s body position; (3) A clear, audible transmission of voices; and (4) Adequate training to users of the technology and other involved persons so that they may quickly and efficiently set up and operate the video remote interpreting.
  7. The title II effective communication rules are the ones that apply (primary communication).
  8. 2010 architectural standards are the applicable standards.
  9. Should somehow an undue financial, administrative burden, or fundamental alteration in the nature of the health program or activity exists, action must be taken up until that point in order to ensure to the maximum extent possible that individuals with disabilities receive the benefits or services of the health program or activity provided by the covered entity.
  10. A recipient or state exchange must comply with the requirements of §504 as interpreted consistently with title II of the ADA (I take that to mean that there have to be compliance with the DOJ title II regulations on website accessibility and mobile app accessibility).
  11. Policies, practices, or procedures have to be modified for a person with a disability unless a fundamental alteration exists.
  12. Health insurance coverage cannot be administered in a way that discriminates on the basis of disability. That means it cannot deny, cancel, limit, refuse to issue or renew health insurance coverage or other health related coverage, or deny or limit coverage of the claim, or impose additional cost sharing or other limitations or restrictions on coverage, on the basis of disability.
  13. Legitimate denials of coverage are okay if a nondiscriminatory reason for doing that exists. Those denials cannot be based upon unlawful animus or bias, or constitute a pretext for discrimination.
  14. Cannot discriminate against a person who associates with a person with a disability.

 

III

Thoughts/Takeaways

 

  1. The effective communication rules that apply are the title II rules (primary consideration).
  2. There are very specific provisions with respect to entities needing to set up systems to ensure that they communicate effectively with people with disabilities. One wonders if that won’t get a bit bureaucratic and make flexibility difficult. Whenever dealing with persons with disabilities, flexibility is everything. So, when coming up with the written procedures, be sure to meet the regulatory requirement but also maintain flexibility.
  3. Requires a §1557 coordinator. I don’t see why that person couldn’t be the same as the §504 coordinator. For that matter, the ADA coordinator as well. Keep in mind, the ADA has very different statutory provisions, regulations, and guidances depending upon what title is involved.
  4. The Deaf community is not a big fan of video remote interpreting services as VRI frequently has problems. The regulation builds in requirements to help ensure that those problems do not occur, but they often do in practice.
  5. The DOJ title II regulations on website accessibility and mobile app accessibility are to my mind, incorporated into this regulation.
  6. Legitimate reasons for denying coverage are okay but not reasons based upon bias or disability.
  7. Associational discrimination is out.
  8. When it comes to effective communication, especially in the healthcare setting, this blog entry is a must read.

As I anticipated, it was not possible for me to get a blog entry up last week with all the traveling I was doing. However, I am back now. Recently, HHS came out with their final 504 regulations, which we previously blogged on the proposed regulations here. There were a few changes that are worth noting but for the most part, the rule is pretty close to the proposed rule. Accordingly, the blog entry is divided into categories and they are: what stayed the same (with a few modifications, you can find a very similar list in the final regulation blog entry, here); what changed; and thoughts/takeaways. As usual, the reader is free to focus on any or all of the categories. The final regulation can be found here.

 

I

What Stayed the Same

 

  1. The definition of disability is to be construed broadly. This area of the final regulations, including its rules of construction, matches up pretty well with the EEOC approach to disability in their title I regulations.
  2. “Handicap,” his history and “disability,” is used instead.
  3. Very bizarre how the regulations say that regarded as prong should be the first option for people with disabilities. I find it bizarre because regarded as is not entitled to reasonable accommodations/modifications, which even the final regulation notes.
  4. Certain physical impairments are per se disabilities under the ADA and those include: deafness; blindness, intellectual disabilities; mobility impairments; autism spectrum disorder; cancer; cerebral palsy; diabetes; epilepsy; muscular dystrophy; multiple sclerosis; HIV; major depressive disorder; bipolar disorder; posttraumatic stress disorder; traumatic brain injury; obsessive-compulsive disorder; and schizophrenia.
  5. The outcomes a person can achieve have nothing to do with whether they have a disability (an example I thought of is in the medical standardized testing world, testing entities have claimed that a high GPA means a person is not entitled to accommodations for taking the test).
  6. Record of disability is to be defined broadly.
  7. In the regarded as prong of the definition of a disability, transitory and minor is an objective standard.
  8. HHS makes it clear that the exclusion in the ADA for gender identity disorders does not exclude an individual with gender dysphoria. As readers of my blog know, this is a hotly debated topic.
  9. A person who is currently illegally using drugs means illegal use of drugs occurring recently enough to justify a reasonable belief that a person’s drug use is current or that continuing use is a real and ongoing problem. As we discussed here, the case law in this area is incredibly complicated.
  10. The final regulations adopt title II of the ADA final regulations on how a qualified person with a disability is defined.
  11. As the final regulation notes, in many cases all operations of the entity must not discriminate against a person with a disability. The language is taken right out of 29 U.S.C. §794, §504 of the Rehabilitation Act, here.
  12. For entities taking HHS funds and an employment situation is involved, the applicable rules are title I of the ADA. You see a similar approach with respect to §501 of the Rehabilitation Act, which applies to federal employees.
  13. With respect to existing facilities, the final regulations take the DOJ title II final implementing regulations approach by focusing on program accessibility.
  14. With respect to secondary and adult education, a recipient of HHS funds providing childcare, preschool, elementary and secondary, or adult education may not, on the basis of disability, exclude qualified individuals with disabilities and must take into account the needs of such persons in determining the aids, benefits, or services to be provided. I find this provision very confusing because §504 uses a causation standard of “solely by reason of.” After Bostock, which we discussed here, “solely by reason of,” must have a very different meaning than “because of,” “by reason of,” and “on the basis of.” Same concern with the nondiscrimination provision against an individual with a substance or alcohol use disorder, which uses the term, “because of.” Also, same concern with the nondiscrimination provision and medical treatment, which uses the term, “on the basis of.”
  15. In the medical treatment section of the final regulation, several things, in addition to the causation concern noted above, are worth noting: 1) An HHS recipient may not deny or limit medical treatment to a qualified individual with a disability when the denial is based on (see causation concern above): A) bias or stereotypes about a patient’s disability; B) judgment that the individual will be a burden on others due to the disability, including, but not limited to caregivers, family, or society; or C) a belief that the life of a person with a disability has lesser value than the life of a person without a disability, or that life with a disability is not worth living; 2) a recipient may not deny or limit clinically appropriate treatment to a person with a disability if that treatment would be offered to a similarly situated individual without an underlying disability; 3) the recipient may not, on the basis of disability (see above concerns with causation), provide a medical treatment to an individual with the disability where it would not provide the same treatment to an individual without a disability unless the disability impacts the effectiveness, or ease of administration of the treatment itself, or has a medical effect on the condition to which the treatment is directed.
  16. In exercising professional judgment to deny certain treatment, an individualized analysis is necessary and must be based upon current medical knowledge or the best available objective evidence that such medical treatment is not clinically appropriate for a particular individual. (HHS is essentially incorporating how direct threat is determined per Supreme Court opinions and DOJ/EEOC regulations into denial of treatment decisions).
  17. Value assessment methods cannot screen out persons with disabilities. This particular section also has the same issue with causation when it uses the term, “on the basis of disability.”
  18. With respect to children, parents, caregivers, foster parents, and prospective parents and the child welfare system, causation is, “on the basis of disability.” Again, as noted numerous times above, §504 in 29 U.S.C. §794 doesn’t work that way, i.e. causation is, “solely by reason of.”
  19. With respect to children, parents, caregivers, foster parents, and prospective parents and the child welfare system, discrimination includes: 1) decision based on speculation, stereotypes, or generalizations that a parent, caregiver, foster parent, or prospective parent, because of (as mentioned above, “because of,” is not the same as, “solely by reason of),” the disability, cannot safely care for a child; and 2) decision based upon speculation, stereotypes, or generalizations about a child with a disability. Can’t use IQ alone as a basis for discriminatory decisions.
  20. Much of the general requirements section matches up with title II DOJ final implementing regulations pretty closely. Of particular note, are the screen out provisions and the adoption of a title II final implementing regulation that is very significant. I certainly have found it significant in my practice. In particular, the final regulations make it discriminatory to aid or perpetuate discrimination against a qualified individual with a disability by providing significant assistance to an agency, organization, or person that discriminates on the basis of disability in providing any aid, benefit, or service to beneficiaries of the recipient’s program.
  21. Surcharges are out.
  22. Discrimination is prohibited against people who associate with a person with a disability.
  23. Legitimate safety requirements are okay if necessary for the safe operation of the programs or activities. However, those safety requirements must be based on actual risks and not on mere speculation, stereotypes, or generalizations about individuals with disabilities.
  24. Perfectly okay to discriminate against an individual currently illegally using drugs. What current user means is complicated.
  25. The fimal regulation dealing with service animals matches up precisely with the DOJ final implementing regulations on service animals in title II and title III, including the way it deals with miniature horses.
  26. Power chairs can go anywhere but there are factors to consider when determining whether power chairs can be restricted where they go.
  27. Direct threat matches up with EEOC, DOJ, and Supreme Court opinions.
  28. Programs or activities receiving federal financial assistance from HHS must provide services in the most integrated environment appropriate to the needs of a qualified person with a disability. Particular violations of the integration final regulations include: A) establishing or applying policies or practices that limit or condition individuals with disabilities access to the most integrated setting appropriate to their needs; B) providing greater benefits or benefits under more favorable terms in segregated setting than in integrated settings; C) establishing or applying more restrictive rules and requirements for individuals with disabilities in integrated settings then for individuals with disabilities in segregated settings; and D) failure to provide community-based services resulting in institutionalization or serious risk of institutionalization. That includes but is not limited to: planning, service design, funding, or service implementation practices that result in institutionalization or serious risk of institutionalization. Individuals with disabilities need not wait until the harm of institutionalization or segregation occurs in order to assert the right to avoid unnecessary segregation. See also this blog entry.
  29. With respect to effective communication, HHS adopts DOJ’s title II effective communication rules. Of particular importance, is that HHS adopts the primary consideration rule of title II.
  30. With respect to web and mobile phone accessibility, HHS adopts the DOJ final regulation on title II of the ADA, which we discussed here.
  31. Medical diagnostic equipment must be accessible to people with disabilities. I know people who have been working on this issue for years. It is a real game changer for persons with disabilities.
  32. With respect to medical diagnostic equipment, no qualified individual with a disability shall, on the basis of disability (causation concerns again), be excluded from participation in, be denied the benefits of the programs or activities of recipient offered through or with the use of medical diagnostic equipment because the recipient’s medical diagnostic equipment is not readily accessible to or usable by persons with disabilities.
  33. Medical diagnostic equipment purchased, leased, or otherwise acquired after 60 days after the final rule has to meet the standard for accessible medical diagnostic equipment unless and until the recipient satisfies the scoping requirements.
  34. By scoping requirements, at least 10% of the total number of medical diagnostic equipment, but not fewer than one unit, of the type of equipment in use must meet the standards for accessible medical diagnostic equipment. If the provider focuses on mobility, then the number rises to 20%. Within two years after the final rule gets published, recipients must purchase, lease, or otherwise acquire at least one examination table meeting the standard for accessible medical diagnostic equipment if the recipient uses at least one examination table. They also must acquire at least one weight scale meeting the standard for accessible medical diagnostic equipment if the recipient uses at least one weight scale. With respect to medical diagnostic equipment, HHS adopts a program accessibility approach to existing medical diagnostic equipment.
  35. Throughout the final regulation, if the recipient decided to argue a fundamental alteration or an undue burden, they have to do everything short of that. Also, HHS adopts the DOJ title II final implementing regulations requiring certification from the head of a recipient or their designee after considering all resources available for use in the funding and operation of the program or activity and accompanied by a written statement of the reasons for reaching that conclusion.
  36. U.S. Access Board is coming up with regulation dealing with kiosks and HHS will defer to them. The final regulations have a general nondiscrimination statement with respect to kiosks.

 

II

What Changed

 

  1. Architectural accessibility means using the 2010 ADAAG standards. For what is an alteration, see this blog entry.
  2. Lease renewals are also subject to medical diagnostic equipment accessibility standards.
  3. The final rule replaced the phrase “emotional or mental illness,” with “mental health condition.” It also replaces the phrase “emotional illness,” with “mental health condition.” This should not be a surprise to those who read my thoughts/takeaways section on the proposed rule.
  4. Several changes were made to bring web related accessibility concerns in line with the DOJ final rule on web accessibility and mobile applications for title II entities.
  5. Most integrated setting means a setting providing individuals with disabilities the opportunity to interact with nondisabled person to the fullest extent possible.
  6. 508 standards mean the standard for information and communication technologies found at 36 C.F.R. Part 1194 by the US Access Board per their authority.
  7. “Operates a general hospital or outpatient facility,” is replaced with “operates a healthcare facility.”
  8. Adopts the term, “substance use disorder.”
  9. Replaces “suffering from a medical condition, with “has a medical condition.”
  10. Circumstances in which the recipient has a legitimate, nondiscriminatory reason for denying or limiting a service or where the disability renders the individual not qualify for the treatment may include circumstances in which the recipient typically declines to provide the treatment to any individual, or reasonably determined based on current medical knowledge or the best available objective evidence that such medical treatment is not clinically appropriate for particular individual.
  11. All services offered or provided by a child welfare entity are covered.
  12. Recipients of federal funds may not, “require children, on the basis of disability, to be placed outside the family home through custody relinquishment, voluntary placement, or other forfeiture of parental rights in order to receive necessary services.”
  13. Evaluations and risk assessments must be tailored to assess parenting capabilities and support needs, rather than the disability itself.
  14. A recipient of federal funds must also ensure that test, assessment, and other evaluation tools and materials used for the purpose of assessing or evaluating parental ability are based upon evidence or research, are conducted by a qualified professional, and are tailored to assess actual parenting ability in specific areas of disability -related needs.
  15. Parenting evaluations must be fully accessible to people with disabilities and cannot be based upon a single general intelligence quotient or manager of the person’s disability, rather than their parenting ability.
  16. Assessments of parents or children must be individualized and based upon the best available objective evidence.
  17. Perfectly okay to discriminate based upon the current illegal use of drugs. As mentioned above, what current illegal use of drugs means is far from clear. See this blog entry for example.
  18. Recipients must administer a program or activity in the most integrated setting appropriate to the needs of a qualified person with the disability. The integrated setting requirement extends to congregate setting populated primarily by individuals with disabilities, and may be characterized by regimentation and daily activities, lack of privacy or autonomy, or policies or practices limiting visitors or limiting individuals ability to engage freely in community activities and to manage their own activities of daily living.
  19. Effective communication rules (the primary consideration rule is adopted), apply regardless of size of the entity receiving federal funds.
  20. With respect to the web and mobile apps, the rule adds language that a recipient cannot discriminate directly or through contractual, licensing, or other arrangements. Language also added making sure that the obligation to make website and mobile apps accessible is a continuing obligation.
  21. Language added clarifying that the exception for accessibility does not apply where a third-party is posting on behalf of the recipient due to contractual, licensing, or other arrangements.
  22. With respect to requirement for web and mobile accessibility, WCAG 2.1 level AA is the standard. The key is compliance and not “full compliance,” as it was stated in the proposed rule.
  23. A recipient not in compliance with the web accessibility and mobile app rule does have a defense if they can demonstrate that the noncompliance has a minimal impact on access. Whether there is a minimal impact on access, depends on whether the noncompliance affects the ability of individuals with disabilities to access the same information, engage in the same interaction, conduct the same transaction, and otherwise participate in or benefit from the same programs and activities with substantially equivalent timelines, privacy, independence, and ease of use.

 

III

Thoughts/Takeaways

 

  1. The ADA is a nondelegable duty!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
  2. The HHS final regulations with respect to web accessibility and mobile app accessibility matches up with the DOJ title II regulations on the same topic, which we discussed here.
  3. I will be very interested to see if the final regulation dealing with what noncompliance means with respect to web accessibility and mobile apps (i.e. minimal impact on access and how to go about thinking about that), makes its way into website litigation case law.
  4. HHS says that removing the phrase “full compliance,” and replacing it with “compliance,” doesn’t change the meaning. However, I think that change is very significant. In the title III architectural barriers area, the ADAAG is essentially a strict liability statute. By making this change in the wording, HHS is making it clear that WCAG 2.1 level AA is not a strict liability statute in all situations. They do the same with respect to discussing how noncompliance is okay if there is a minimal impact on access.
  5. Causation is still a mess. §504 is quite clear that the causation standard is “solely by reason of.” As we know from our discussion in Bostock, solely by reason of must emphatically have a different meaning than “on the basis of,” “by reason of,” or even, “because of.” The statute couldn’t be more plain. As a result, the HHS final regulations most likely go too far with respect to causation when it uses other language besides, “solely by reason of,” when discussing causation.
  6. The added language dealing with integrated settings is very much an implicit shot at sheltered workshops.
  7. The accessibility standards for medical equipment also applies to lease renewals.
  8. Direct threat concepts is expanded into other areas so as to require individualized assessments based on the actual facts.
  9. There is a difference between ADAAG and Americans with Disabilities Act Architectural Standards. The standards are ADAAG provisions approved by DOJ. ADAAG is what is put out by the Architectural Access Board. The two are very close though not identical. I’m not sure I understand the HHS focus on standards v. the guidelines.

 

Before getting started on the blog entry of the day, I will be out of town not this week, but the week after this week. So, I am not sure if I will get a blog entry up for the next week. I would have to do it next Sunday, but I will also be out of town the end of this week as well. So, don’t be surprised if there is no blog entry for next week.

 

Turning to the blog entry for this week, it is a published decision from the Ninth Circuit decided on April 22, 2024. The case is Mattioda v. Clarence William Nelson II and NASA, here. The case asks the question of whether hostile work environment claims are viable under the Rehabilitation Act and under the ADA. The Ninth Circuit says they are. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning that summary judgment should not have been granted on plaintiff’s hostile work environment claim; court’s reasoning that summary judgment was properly granted on the disability discrimination claim; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

Dr. Mattioda began working for NASA in 2000. He suffers from, among other things, a degenerative defect in his hips and Scheurermann’s disease of the spine, which causes uneven vertebrae growth and scoliosis. Since 2007, his orthopedist has written reasonable-accommodation letters stating that Dr. Mattioda must fly in premium class for flights longer than an hour because he needs to avoid prolonged sitting and be able to change positions frequently and stretch due to physical disabilities affecting his hips and spine. By 2011, after multiple surgeries, Dr. Mattioda had informed the NASA Ames Research Center, where he worked, about all his disabilities and orthopedic limitations. Thereafter, from 2011 to 2018, Dr. Mattioda’s experience at NASA was plagued by: (a) derogatory comments from his supervisors; (b) supervisors who inhibited his work opportunities; (c) unwarranted negative job reviews; and (d) resistance to his accommodation requests. In 2011, Dr. Mattioda approached his supervisor, Dr. Timothy Lee, about an upcoming work trip and advised Dr. Lee of his physical disabilities and premium-class travel request. After Dr. Lee learned of the cost for the requested travel upgrade, he “openly discussed” Dr. Mattioda in front of others, “compared [his] disabilities to Dr. Lee’s own hip issues,” and asked why Dr. Mattioda could not “just tough it out or suck it up and travel coach.”

 

After that, a series of harassing comments and events just continued even further. Those events included openly criticizing the plaintiff to others, inhibiting the plaintiff’s work opportunities, making it clear that his reasonable accommodation requests would only happen if he paid for them himself, mishandling performance reviews, disclosing his disabilities and EEO activity to other employees, and transferring him to a different division in order, “to help calm the waters and to provide [plaintiff] with a safe space.” He was also denied a promotion. With respect to the promotion, the defense defended on the grounds that the person they hired was more qualified than the plaintiff because he had significantly more experience and publications than the plaintiff. Also, the new hire’s publications were the first in a novel field.

 

The court granted summary judgment as to all claims except for those involving his negative performance reviews. The negative performance reviews claim ultimately settled. Plaintiff appealed the summary judgment grant on the hostile work environment claim and on the disability discrimination claim.

 

II

Court’s Reasoning That Summary Judgment Should Not Have Been Granted on Plaintiff’s Hostile Work Environment Claim

 

  1. The weight of authority supports concluding that a plaintiff can bring a disability-based harassment claim under the ADA and therefore necessarily under Rehabilitation Act, because every circuit to have addressed the issue has concluded as much.
  2. It is well established that a plaintiff can bring a hostile work environment claim under Title VII.
  3. As the Seventh Circuit, in a case we discussed here, noted, a hostile work environment claim must also be available under the ADA because Congress wrote the ADA using the language of Title VII.
  4. The Fifth Circuit similarly reasoned that because the ADA and Title VII use almost identical language and are also alike in their purposes and remedial structures, the ADA also provides a cause of action for disability-based harassment. In particular, they said that it was clear after review of the ADA’s language, purpose, and remedial framework, that Congress’s intent in enacting the ADA was to eradicate disability-based harassment in the workplace. They further observed that the Supreme Court has construed Title VII, which has nearly identical language to the ADA, to provide a cause of action for harassment when it is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive environment since it affects the terms, conditions, or privileges of employment.
  5. The Fifth Circuit and Seventh Circuit reasoning is sound, so hostile work environment claims are viable under the ADA.
  6. Since the Rehabilitation Act is materially identical to and the model for the ADA, hostile work environment claims are viable under the Rehabilitation Act.
  7. To plead a plausible hostile work environment claim, a plaintiff has to allege that: 1) he was subjected to harassment because of his disability; and 2) that the harassing conduct was sufficiently severe or pervasive to alter the conditions of his employment and create an abusive work environment.
  8. When it comes to assessing complaints, Iqbal/Twombly is the standard that gets used. Even using that standard, plaintiff’s hostile work environment claims can go forward. The lower court in analyzing the complaint using the Iqbal/Twombly standard made a series of mistakes. First, it did not construe well pleaded allegations in plaintiff’s favor. Second, if failed to acknowledge plaintiff’s allegation that a series harassing comment began after the employer was informed of his disabilities. Third, the court ignored allegations linking the allegedly harassing conduct to his disability, such as nondisabled researchers being treated better than the plaintiff was.
  9. While a close call, plaintiff sufficiently alleged that the conduct was sufficiently severe or pervasive.
  10. When it comes to sufficiently severe or pervasive conduct, that conduct must be both subjectively and objectively abusive. Objective hostility is assessed by looking at the totality of the circumstances through the lens of a reasonable person with the same protected characteristic. Here, plaintiff alleges that his employer inhibited work opportunities and repeatedly made harassing derogatory comments over a period of years and listed several specific examples. They also alleged his employer threatened his job, demeaned him by making him sign a letter acknowledging a refusal by his employer to reconsider his poor performance rating, and made insulting comments about his reasonable accommodation requests and job performance. As such, plaintiff had created a question of fact for the jury to decide.

 

III

Court’s Reasoning That Summary Judgment Was Properly Granted on the Disability Discrimination Claim

 

  1. Both parties agree that the district court correctly used the McDonnell Douglas burden shifting framework in assessing the motion for summary judgment.
  2. Even assuming, as the District Court did, that plaintiff established a prima facie case of disability discrimination, plaintiff repeatedly conceded that the nondiscriminatory reason for not selecting him for the position was a valid reason. In particular, the person ultimately selected was more qualified for that position. There is also no evidence that the technical excellence criteria utilized by the selection panel was invented to discriminate against the plaintiff based on his disability.

 

IV

Thoughts/Takeaways

 

  1. The Ninth Circuit in this published decision joins the overwhelming trend of authority that hostile work environment claims are viable under both the ADA and the Rehabilitation Act.
  2. The court notes that whether conduct is sufficiently severe or pervasive must be viewed from the perspective of the person with a protected characteristic. Even so, one can see how “sufficiently severe or pervasive,” is often in the eyes of the beholder. For example, it won’t surprise my readers, that I didn’t see this fact pattern as a close call. However, the court did. We discussed previously in this blog entry, that there may be a whole different approach to hostile work environment claim that might be worth considering.
  3. On the plaintiff’s side, always put in enough facts to make sure that everybody knows precisely what is going on because Iqbal/Twombly is definitely something that plaintiffs always have to worry about.
  4. Trial courts on summary judgment, are supposed to construe the facts in favor of the nonmoving party. However, what that means can vary considerably from judge to judge.
  5. Why did both parties agree that McDonnell Douglas was the proper standard to analyze the summary judgment motion? I don’t know the answer to that because alternatives, such as the convincing mosaic standard which we discussed here, most certainly exist.
  6. Hostile work environment and disability discrimination are two different causes of action. So, here the plaintiff gets to go forward on his hostile work environment claim but his disability discrimination claim gets tossed out because NASA successfully defended on the grounds that the person hired was more qualified than the plaintiff.
  7. To my mind, insisting that an employee or any person with a disability pay for their own reasonable accommodations is per se evidence of a hostile work environment. Any entity insisting on a person with a disability paying for their own accommodations/modifications is asking for litigation they very well will lose.

Today’s blog entry talks about a case that is not an ADA case at all. However, I do expect the case to have a huge impact on a particular area of ADA jurisprudence. As we know, such as discussed here, there has been considerable debate in the courts over whether failure to accommodate cases require an additional adverse action on top of the failure to accommodate. Some cases say yes to that. Others say no to that. Still others, say that the failure to accommodate is an adverse action in and of itself. On April 17, 2024, the United States Supreme Court in a unanimous opinion decided the case of Muldrow v. City of St. Louis, here. The case is a Title VII case but has huge implications for the question of whether failure to accommodate cases per the ADA will require going forward an additional adverse action beyond the failure to accommodate. Any plain reading of the opinions in this case and then comparing the statutory text of Title VII with the ADA, strongly suggests that either a failure to accommodate case does not require an additional adverse action or that the failure to accommodate is an adverse action. As usual, the blog entry is divided into categories and they are: facts; majority reasoning that an employee need not show injury that satisfies a significance test when it comes to Title VII claims, though some-harm must be shown; Justice Thomas concurring opinion; Justice Alito concurring opinion; Justice Kavanaugh concurring opinion; and applicability of decision to whether an adverse action on top of a failure to accommodate will be required going forward/thoughts-takeaways. Of course, the reader is free to read any or all of the categories.

 

I

Facts

 

From 2008 through 2017, Sergeant Muldrow worked as a plainclothes officer in the St. Louis Police Department’s specialized Intelligence Division. During her tenure there, she investigated public corruption and human trafficking cases, oversaw the Gang Unit, and served as head of the Gun Crimes Unit. By virtue of her Division position, Muldrow was also deputized as a Task Force Officer with the Federal Bureau of Investigation—a status granting her, among other things, FBI credentials, an unmarked take home vehicle, and the authority to pursue investigations outside St. Louis. In 2017, the outgoing commander of the Intelligence Division told her newly appointed successor that Muldrow was a “workhorse”—still more, that “if there was one sergeant he could count on in the Division,” it was Muldrow.

 

But the new Intelligence Division commander, Captain Michael Deeba, instead asked the Department to transfer Muldrow out of the unit. Deeba wanted to replace Muldrow—whom he sometimes called “Mrs.” rather than the customary “Sergeant”—with a male police officer. That officer, Deeba later testified, seemed a better fit for the Division’s “very dangerous” work. The Department approved the transfer against Muldrow’s wishes. It reassigned her to a uniformed job in the Department’s Fifth District. While Muldrow’s rank and pay remained the same in the new position, her responsibilities, perks, and schedule did not.

 

In later deposition testimony, Muldrow set out her view of what the transfer had cost her. She had been moved out of a “premier position [in] the Police Department” into a less “prestigious” and more “administrative” uniformed role. She had fewer “opportunities” to work on “important investigations,” as well as to “network” with commanding officers. And she lost material benefits—her weekday work schedule and take-home car. Or as she summarized the situation: “I went from straight days, weekends off with a take-home car and more visibility and responsibility within the Department to a rotating schedule with few weekends off, assigned to . . . uniformed patrol,” with “responsibilities being limited to that of administrative work” and “supervising officers on patrol.”

Muldrow brought this Title VII suit to challenge the transfer. Her complaint alleged that the City, in ousting her from the Intelligence Division, had “discriminate[d] against” her based on sex “with respect to” the “terms [or] conditions” of her employment. §2000e–2(a)(1).

 

II

Majority (J. Kagan), Reasoning That an Employee Need Not Show an Injury Satisfies a Significance Test When It Comes to Title VII Claims, Though Some Harm Must Be Shown.

 

  1. Title VII makes it unlawful for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, condition, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.
  2. A transfer implicates terms and conditions of employment as it changes nothing less than the what, where, and when of plaintiff’s police work.
  3. Statutory language applicable to this case prohibits discriminating against an individual with respect to the terms or conditions of employment because of that individual’s sex. Therefore, plaintiff has to show that the transfer brought about some disadvantageous change in employment terms or conditions.
  4. The words “discriminate against,” refer to differences in treatment that injure employees. In other words, the statute targets practices that treat a person worse because of sex or other protected trait.
  5. In the typical transfer case, that worse treatment pertains to employment terms or conditions.
  6. The “terms or conditions” phrase, is not used in the narrow contractual sense. Instead, it covers more than economic or tangible situations. The phrase does circumscribe the injuries giving rise to a Title VII suit. As such, making out a Title VII discrimination claim means a plaintiff has to show some harm respecting identifiable terms or conditions of employment.
  7. A plaintiff does not have to show according to the relevant statutory provisions that the harm incurred was significant. For that matter, a plaintiff does not have to show that the harm was serious, substantial, or any similar adjective suggesting that the disadvantage to the employee must exceed a heightened bar. While it is true that “discriminate against,” means treating worse (in this case based upon sex), neither that phrase nor any other says anything about how much worse. There is nothing in the statutory provision to distinguish between transfers causing significant disadvantages and transfers causing not so significant ones.
  8. To demand “significance,” adds additional significant words to the statute Congress enacted. It would also mean imposing a new requirement on a Title VII plaintiff so that the law as applied demands something more of the plaintiff than the law as written. Such an addition, can make a real difference for people complaining about a wrongful transfer. Many forced transfers leave workers worse off respecting employment terms or conditions. If you add a significance tests, the answers become completely variable and subject to the eye of the beholder (the court then reviews a series of cases indicating just how arbitrary the “significance,” standard can be).
  9. The majority opinion in a footnote specifically points out its disagreement with Justice Thomas’s concurring opinion by saying that the majority opinion does change the legal standard used in any circuit previously requiring “significant,” “material,” or “serious,” injury. The majority makes it clear that this opinion lowers the bar that Title VII plaintiff’s must meet. In other words, prior cases that failed under the heightened tests imposed by certain circuits will now succeed.
  10. The relevant statutory provisions share the trait that each kind of prohibited discrimination occurred by way of an employment action-whether pertaining to hiring, firing, or compensating, or altering terms or condition through a transfer. As such, that is more than sufficient to unite the provision’s several parts, and there is no need for courts to introduce a significant harm requirement.
  11. Retaliation is a completely different concept than discrimination. In a retaliation situation, you are talking about things that dissuade a reasonable worker from making or supporting a charge of discrimination. However, in the antidiscrimination context, a person simply seeks a workplace where individuals are not discriminated against because of a protected characteristic. Therefore, the discrimination provisions flatly prevent injuries to individuals based upon the protected characteristic without distinguishing between significant and less significant harms.
  12. The antidiscrimination provision at issue does require that a plaintiff show some injury. It also requires that the injury asserted concerning the terms or conditions of her employment. Finally, it requires that the employer acted for discriminatory reason-because of a protected characteristic.
  13. Even if this decision open the floodgates to Title VII claims, that is the result of a statute that Congress drafted and it’s not for the Court to step in. That is, the Court will not add words to the law in order to achieve what some employers might think is a desirable result.
  14. Had Congress wanted to limit liability for job transfers to those causing a significant disadvantage, it could have done so but it didn’t.
  15. Plaintiff need only show some injury respecting her employment terms or conditions. That is, the transfer must have left her worse off, but need not have left her significantly worse off. Plaintiff’s allegations meet that standard. In particular: 1) she was moved from a plainclothes job in a prestigious special light division giving her substantial responsibility over priority investigation and frequent opportunity to work with commanders; 2) she was moved to a uniform job supervising one district’s control officers, in which she was less involved in high visibility matters and primarily performed administrative work; and 3) her schedule became less regular, often requiring her to work weekends and she lost her take-home car.
  16. On remand, the lower courts will need to consider whether the plaintiff forfeited any arguments, she may have done so, and whether she provided sufficient adequate evidentiary support.

 

III

Justice Thomas Concurring Opinion

 

  1. There is little practical difference between a standard requiring a plaintiff to show harm that is more than trifling with what the majority opinion holds.
  2. Justice Thomas is not convinced that the Eighth Circuit applied a heightened standard. However, Justice Thomas does recognize that the terms “material,” and “significant,” can (but do not always), imply a heightened harm requirement. Therefore, he agrees with vacating and remanding to the extent that the Eighth Circuit’s opinion is inconsistent with a more than trifling harm requirement.

 

IV

Justice Alito Concurring Opinion

 

  1. The majority states that a Title VII plaintiff must show that the event they challenge constituted a harm or injury, but the event need not be significant or substantial.
  2. Justice Alito has no idea what the majority standard actually means, and he can only imagine how that standard will be greeted by lower court judges.
  3. Justice Alito sees little substantive difference between the terminology of the majority opinion and the terminology the majority opinion doesn’t like. That will only lead to lower court judges minding the words they use and continuing to do pretty much just what they have done for years.

 

V

Justice Kavanaugh Concurring Opinion

 

  1. Even when a transfer does not change an employee’s compensation, a transfer does change the employee’s terms, condition, or privileges of employment. Therefore, a transfer made on the basis of an employee’s protected characteristic violates Title VII.
  2. Transferring a person because of a protected characteristic violates Title VII because the employer had treated that person differently because of that protected characteristic regardless of whether there is a change in compensation.
  3. A transfer change of the terms, conditions, or privileges of employment. Therefore, a discriminatory transfer violates the plain text of Title VII.
  4. Justic Kavanaugh fully agrees with the Court’s rejection of prior court holding that a significant employment disadvantage is necessary in order to maintain such cases.
  5. Justice Kavanaugh disagrees with the Court’s new some-harm requirement for several reasons: 1) no court has adopted a some-harm requirement; 2) no party or amicus advocated that requirement to the Supreme Court; 3) and the text of Title VII does not require a separate showing of some harm because the discrimination is the harm.
  6. The only question is whether the relevant employment action changes the compensation, terms, conditions, or privileges of employment. A transfer does exactly that.
  7. The Court’s new some-harm requirement appears to be a relatively low bar. Importantly, the Court emphasizes that “some harm,” is less than significant harm, serious harm, or substantial harm. Accordingly, anyone transferred because of a protected characteristic should easily be able to show some additional harm-whether in money, time, satisfaction, schedule, convenience, commuting costs or time, prestige, status, career prospects, entrance level, perch, professional relationship, networking opportunities, effects on family obligations, or the like. Therefore, the Court’s approach and Justice Kavanaugh’s approach of getting rid of the some-harm standard altogether should land in the same place and lead to the same result in 99% of discriminatory transfer cases, if not in 100% of those cases.

 

VI

Applicability of Decision to Whether Adverse Action on Top of a Failure to Accommodate Will Be Required Going Forward/thoughts-takeaways

 

  1. Title VII does not apply to disability discrimination, so keep that in mind when I use the term “protected characteristic,” in this blog entry.
  2. 42 U.S.C. §12112(a) (Title I), states: “no covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” Title II of the ADA has very similar language but uses “by reason of,” for its causation language. Title III of the ADA also has similar language and also uses “on the basis of,” for causation.
  3. The language of 42 U.S.C. §12112(a)-the general rule provision,- is virtually identical to the language in Title VII. The only difference is that Title VII uses “because of,” and Title I uses, “on the basis of.” So, the reasoning of the opinions in Muldrow should apply equally to Title I claims. Further, 42 U.S.C. §12112(b)(5)-the failure to make reasonable accommodations as discrimination provisions,-does not contain anything indicating a heightened standard of harm being necessary either. In fact, nothing in 42 U.S.C. §12112(b)(5) suggests a heightened adverse action standard being necessary.
  4. I know of one court already that is asking for briefing on whether this case changes the paradigm for requiring an additional adverse action in a failure to accommodate claim. My reading of Muldrow is the answer to that question is absolutely that it does. I don’t see how you can read the opinions in Muldrow otherwise.
  5. Not every judge gets disability, so nothing changes with the best approach being to be sure in a complaint to give as many facts as possible to show that the adverse action caused some harm so that no reasonable person could think otherwise. The same goes for describing in the complaint what disability a plaintiff has.
  6. A failure to accommodate is most certainly an adverse action. As a person with a disability, I have seen the difference when I have asked for accommodations needed to get me to the same starting line because of my disability and received them v. when I have asked and not received them. For example, I can think of the difference in being able to fully participate or equally enjoy an activity when I attend meetings and stay in hotels in terms of when I get accommodations v. when I don’t. Certainly, in my opinion, the some-harm standard is automatically met when there is a failure to accommodate a person with a disability.

Today’s blog entry discusses the DOJ Title II final rule on web accessibility, including mobile apps. The final rule can be found here. As usual, a blog entry is divided into categories, and they are: 1) the actual regulations; and 2) highlights of DOJ response to comments and thoughts/takeaways

 

I

Actual Regulations

 

PART 35—NONDISCRIMINATION ON THE BASIS OF DISABILITY IN STATE AND LOCAL GOVERNMENT SERVICES 1. The authority citation for part 35 continues to read as follows: Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510; 42 U.S.C. 12134, 12131, and 12205a. Subpart A—General 2. Amend § 35.104 by adding definitions for Archived web content, Conventional electronic documents, Mobile applications (apps), Special district government, Total population, User agent, WCAG 2.1, and Web content in alphabetical order to read as follows:

 

  • 35.104 Definitions. * * * * * Archived web content means web content that— (1) Was created before the date the public entity is required to comply with this rule, reproduces paper documents created before the date the public entity is required to comply with this rule, or reproduces the contents of other physical media created before the date the public entity is required to comply with this rule; (2) Is retained exclusively for reference, research, or recordkeeping; 55 (3) Is not altered or updated after the date of archiving; and (4) Is organized and stored in a dedicated area or areas clearly identified as being archived. * * * * *

 

Conventional electronic documents means web content or content in mobile apps that is in the following electronic file formats: portable document formats (“PDF”), word processor file formats, presentation file formats, and spreadsheet file formats. * * * * *

 

Mobile applications (“apps”) means software applications that are downloaded and designed to run on mobile devices, such as smartphones and tablets. * * * * *

 

Special district government means a public entity—other than a county, municipality, township, or independent school district—authorized by State law to provide one function or a limited number of designated functions with sufficient administrative and fiscal autonomy to qualify as a separate government and whose population is not calculated by the United States Census Bureau in the most recent decennial Census or Small Area Income and Poverty Estimates. * * * * *

 

Total population means— (1) If a public entity has a population calculated by the United States Census Bureau in the most recent decennial Census, the population estimate for that public entity as calculated by the United States Census Bureau in the most recent decennial Census; or (2) If a public entity is an independent school district, or an instrumentality of an independent school district, the population estimate for the independent school district as calculated by the United States Census Bureau in the most recent Small Area Income and Poverty Estimates; or 56 (3) If a public entity, other than a special district government or an independent school district, does not have a population estimate calculated by the United States Census Bureau in the most recent decennial Census, but is an instrumentality or a commuter authority of one or more State or local governments that do have such a population estimate, the combined decennial Census population estimates for any State or local governments of which the public entity is an instrumentality or commuter authority; or (4) For the National Railroad Passenger Corporation, the population estimate for the United States as calculated by the United States Census Bureau in the most recent decennial Census. User agent means any software that retrieves and presents web content for users. * * * * *

 

WCAG 2.1 means the Web Content Accessibility Guidelines (“WCAG”) 2.1, W3C Recommendation 05 June 2018, https://www.w3.org/TR/2018/REC-WCAG21-20180605/ and https://perma.cc/UB8A-GG2F. WCAG 2.1 is incorporated by reference elsewhere in this part (see §§ 35.200 and 35.202). Web content means the information and sensory experience to be communicated to the user by means of a user agent, including code or markup that defines the content’s structure, presentation, and interactions. Examples of web content include text, images, sounds, videos, controls, animations, and conventional electronic documents. Subpart H—Web and Mobile Accessibility 3. Add new subpart H to read as follows: Subpart H—Web and Mobile Accessibility Sec. 35.200 Requirements for web and mobile accessibility. 35.201 Exceptions. 35.202 Conforming alternate versions. 57 35.203 Equivalent facilitation. 35.204 Duties. 35.205 Effect of noncompliance that has a minimal impact on access. 35.206–35.209

 

[Reserved] § 35.200 Requirements for web and mobile accessibility. (a) General. A public entity shall ensure that the following are readily accessible to and usable by individuals with disabilities: (1) Web content that a public entity provides or makes available, directly or through contractual, licensing, or other arrangements; and (2) Mobile apps that a public entity provides or makes available, directly or through contractual, licensing, or other arrangements. (b) Requirements. (1) Beginning two years after the publication of this rule in final form, a public entity, other than a special district government, with a total population of 50,000 or more shall ensure that the web content and mobile apps that the public entity provides or makes available, directly or through contractual, licensing, or other arrangements, comply with Level A and Level AA success criteria and conformance requirements specified in WCAG 2.1, unless the public entity can demonstrate that compliance with this section would result in a fundamental alteration in the nature of a service, program, or activity or in undue financial and administrative burdens. (2) Beginning three years after the publication of this rule in final form, a public entity with a total population of less than 50,000 or any public entity that is a special district government shall ensure that the web content and mobile apps that the public entity provides or makes available, directly or through contractual, licensing, or other arrangements, comply with Level A and Level AA success criteria and conformance requirements specified in WCAG 2.1, unless the public entity can demonstrate that compliance with this section would result in a fundamental 58 alteration in the nature of a service, program, or activity or in undue financial and administrative burdens. (3) WCAG 2.1 is incorporated by reference into this section with the approval of the Director of the Federal Register under 5 U.S.C. 552(a) and 1 CFR part 51.

 

  • 35.201 Exceptions. The requirements of § 35.200 do not apply to the following: (a) Archived web content. Archived web content as defined in § 35.104. (b) Preexisting conventional electronic documents. Conventional electronic documents that are available as part of a public entity’s web content or mobile apps before the date the public entity is required to comply with this rule, unless such documents are currently used to apply for, gain access to, or participate in the public entity’s services, programs, or activities. (c) Content posted by a third party. Content posted by a third party, unless the third party is posting due to contractual, licensing, or other arrangements with the public entity. 59 (d) Individualized, password-protected or otherwise secured conventional electronic documents. Conventional electronic documents that are: (1) About a specific individual, their property, or their account; and (2) Password-protected or otherwise secured. (e) Preexisting social media posts. A public entity’s social media posts that were posted before the date the public entity is required to comply with this rule.

 

  • 35.202 Conforming alternate versions. (a) A public entity may use conforming alternate versions of web content, as defined by WCAG 2.1, to comply with § 35.200 only where it is not possible to make web content directly accessible due to technical or legal limitations. (b) WCAG 2.1 is incorporated by reference into this section with the approval of the Director of the Federal Register under 5 U.S.C. 552(a) and 1 CFR part 51.

 

  • 35.203 Equivalent facilitation. Nothing in this subpart prevents the use of designs, methods, or techniques as alternatives to those prescribed, provided that the alternative designs, methods, or techniques result in substantially equivalent or greater accessibility and usability of the web content or mobile app.

 

  • 35.204 Duties. Where a public entity can demonstrate that compliance with the requirements of § 35.200 would result in a fundamental alteration in the nature of a service, program, or activity or in undue financial and administrative burdens, compliance with § 35.200 is required to the extent that it does not result in a fundamental alteration or undue financial and administrative burdens. In those circumstances where personnel of the public entity believe that the proposed action would fundamentally alter the service, program, or activity or would result in undue financial and administrative burdens, a public entity has the burden of proving that compliance with § 35.200 would result in such alteration or burdens. The decision that compliance would result in such alteration or burdens must be made by the head of a public entity or their designee after considering all resources available for use in the funding and operation of the service, program, or activity, and must be accompanied by a written statement of the reasons for reaching that conclusion. If an action would result in such an alteration or such burdens, a public entity shall take any other action that would not result in such an alteration or such burdens but would nevertheless ensure that individuals with disabilities receive the benefits or services provided by the public entity to the maximum extent possible.

 

  • 35.205 Effect of noncompliance that has a minimal impact on access. A public entity that is not in full compliance with the requirements of § 35.200(b) will be deemed to have met the requirements of § 35.200 in the limited circumstance in which the public entity can demonstrate that the noncompliance has such a minimal impact on access that it would not affect the ability of individuals with disabilities to use the public entity’s web content or 61 mobile app to do any of the following in a manner that provides substantially equivalent timeliness, privacy, independence, and ease of use: (a) Access the same information as individuals without disabilities; (b) Engage in the same interactions as individuals without disabilities; (c) Conduct the same transactions as individuals without disabilities; and (d) Otherwise participate in or benefit from the same services, programs, and activities as individuals without disabilities.

 

  • § 35.206–35.209 [Reserved] 4. Add Appendix D to part 35 to read as follows: Appendix D to Part 35—Guidance to Revisions to ADA Title II Regulation on Accessibility of Web Information and Services of State and Local Government Entities Note: This Appendix contains guidance providing a Section-by-Section Analysis of the revisions to 28 CFR part 35 published on [INSERT DATE OF PUBLICATION IN THE FEDERAL REGISTER].

 

II

Highlights of DOJ’s Response to Comments And Thoughts/Takeaways

 

  1. The regulations go into effect 60 days after the date of publication in the Federal Register. As far as I can tell, as of April 18, 2024, the rule has not been published yet in the Federal Register. I would expect it to come out shortly.
  2. DOJ made only three substantive changes to the proposed rule. First, it changed “does not,” to “would not,” with respect to the nonconformance regulation so as to clarify that the threshold requirements for bringing a challenge to compliance are the same as under any other provision of the ADA. The critical issue is whether the nonconformance is the type of barrier affecting the ability of individuals with pertinent disabilities to access the web content or mobile app in a substantially equivalent manner. Second, the proposed regulation for nonconformance used the phrase “prevents a person with a disability.” DOJ changed that to whether the nonconformance, “affects the ability of individuals with disabilities.” Finally, DOJ decided to specifically mention that timeliness, privacy, and independence were all components affecting whether the ease of use is substantially equivalent.
  3. With respect to temporary disruptions, DOJ believes it comes down to whether the temporary and then some nonconformance affects the ability of individuals with disability to use the public entity’s web content or mobile app in a substantially equivalent way. Of course, if the entire website or mobile app is shut down for everybody temporarily, there isn’t an issue in that case.
  4. DOJ strongly believes that the title II nondiscrimination requirements applies to all services, program, and activities of public entities, including those provided by the web as well as mobile apps.
  5. WCAG 2.1 level AA is the measuring stick for compliance.
  6. Separate but equal websites is something that can be done only rarely where it is not possible to make web content directly accessible due to technical or legal limitations.
  7. WCAG 2.1 level AA is not a strict liability standard if the public entity can demonstrate that the nonconformance has such a minimal impact on access that it does not affect the ability of individuals with disabilities to use the public entity’s web content or mobile app to access the same information, engage in the same interaction, conduct the same transaction, and otherwise participate in or benefit from the same services, program, and activities as individuals without disabilities. Nonconformance must provide the person with a disability with substantially equivalent or greater timeliness, privacy, independence, and ease of use (accessibility and usability). This is a very narrow exception and will rarely apply.
  8. There are some other points about this nonconformance rule that need mentioning: 1) it is for the public entity to demonstrate that, even though the web content or mobile app does not conform to the technical standard, the user experience for individuals with disabilities is substantially equivalent to the experience of individuals without disabilities; 2) individuals with disabilities must be able to access the same information as individuals without disabilities. This means that people with disabilities can access all the same information using the web content or mobile app that users without disabilities are able to access; 3) it is up to the public entity to demonstrate that the nonconformance exception is met with respect to the specific facts of the nonconformance at issue; 4) individuals with disabilities must be able to engage in the same interactions as individuals without disabilities. This means that people with disabilities can interact with the web content or mobile app in all the same ways that people with disabilities can; 5) a slight deviation in timing, especially when the time limit is long and the intended interaction a brief, is unlikely to affect the ability of people with disability to engage in interactions. Even so, the public entity must always demonstrate that this element is met with respect to the specific facts of the nonconformance at issue; and 6) persons with disabilities must be able to conduct the same transactions as individuals without disabilities. This means that people with disabilities can complete all of the same transactions on the web content or mobile app that people without disabilities can.
  9. DOJ believes that telephone lines can no longer realistically provide equal access to people with disabilities.
  10. The ADA in complying with these regulations is a nondelegable duty. DOJ absolutely means it. See also this blog entry.
  11. DOJ believe that the rule is necessary because of the inadequacy of voluntary compliance with technical standards, such as WCAG.
  12. DOJ made a couple of changes from the proposed rulemaking with respect to the definition of “archived web content.” The changes were done to make clear that archived web content limited to three types of historic content: web content created before the date the public entity is required to comply with the rule; web content that reproduces a paper document created before the date the public entity is required to comply with the rule; and web content that reproduces the contents of other physical media created before the date the public entity is required to comply with the rule. They also got rid of the word “maintained,” and replaced it with, “maintained.” Maintained was a better word for purposes of this rule.
  13. DOJ slightly revised it definition of “web content,” from the proposed rule to align it with the WCAG 2.1 (the regulation specifically incorporates WCAG 2.1 into the rule), definition of web content.
  14. The rule applies to web content and mobile apps that a public entity provides or makes available even if it comes from third parties or third parties have something to do with what the public needs to access through the nonfederal governmental entity. It could also be a situation where the public entity tells its citizen to use a certain app when it comes to public services. For example, here in the City of Decatur Georgia, if you want to pay for parking on the streets, there is an app you can use for that. Again, that the ADA is a nondelegable duty cannot be overemphasized. DOJ spends a considerable amount of time when explaining the regulation, discussing in so many words that the ADA is a nondelegable duty.
  15. DOJ believes that WCAG 2.1 is the better benchmark than WCAG 2.2.
  16. DOJ did not see the point of adding effective communication requirements to the rule sent title II entities already have an effective communication rule to deal with. See this blog entry for example.
  17. What people often don’t realize is that when a public entity claims that something is an undue burden, title II regulations require that the public entity certify as such and then do everything it can short of that to accommodate the person with the disability. DOJ reiterates that point. DOJ has made clear that the determination that an undue burden exists has to be made by a high-level official, no lower than a department head, having budgetary authority and responsibility for making spending decisions. The fact that modifications often don’t cost a lot of money, the entire resources of a public entity are looked to, and a high-level official has to put their name on the certification, means that you should not see many claims of undue burden. On the plaintiff side, if a public entity is claiming an undue burden, the attorney really should be looking for the certification.
  18. WCAG 2.1 level AA requires captions for live-audio content and DOJ has elected to utilize the same deadlines for compliance as a case for the rest of the regulation. DOJ specifically decided against prescribing captioning requirements beyond WCAG 2.1 level AA so as to allow maximum flexibility to determine the best way to comply with WCAG 2.1 level AA based upon current technology.
  19. DOJ elected not to include the exceptions that it had in the proposed rule for password-protected course content in elementary, secondary, and postsecondary schools. It believed that the proposed exception would have been redundant and cause confusion.
  20. DOJ elected not to include in the final rule a proposed exception for third-party content link from a public entity’s website as the exception was unnecessary and would only create confusion.
  21. With respect to digital textbooks, DOJ believe the most prudent approach is treating them the same as all other educational course materials.
  22. DOJ believe the most appropriate approach is treating public libraries the same as other public entities under the regulation.
  23. An unanswered question for me is what happens when WCAG advances to a completely different format? What happens as WCAG evolves with the Internet?
  24. If Pres. Biden is reelected, look for very similar rules with respect to title III of the ADA.
  25. It bears repeating that the ADA is a NONDELEGABLE duty!!!!!!!!!!

I have been absolutely slammed this week, which is why I am so late in getting a blog entry up for the week. Before getting started on the blog entry for the day, I do want to mention that the Department of Justice has now issued a final rule on website accessibility involving Title II entities, which are nonfederal governmental entities. The rule is over 326 pages, including discussion of the comments that were submitted and DOJ’s response. As you can imagine, that will take me some time to weed through. I do plan to blog on that.

 

The blog entry of the day is Akridge v. Alfa Insurance Companies, here. It is a published decision from the 11th Circuit decided on February 16, 2024. The issue is just what is the standard for causation when it comes to the ADA after Bostock, which we discussed here. Is it but for causation? Is it motivating factor? Do but for causation and motivating factor mean different things? The majority opinion answers all that. There is a dissent on causation that is worth talking about as well. As usual, the blog entry is divided into categories and they are: key facts; majority’s reasoning that but for is the ADA causation standard; majority reasoning that pretext cannot be shown; majority reasoning that convincing mosaic alternative is of no help to the plaintiff; majority response to dissent’s view of causation; Judge Abudu’s dissent on majority’s view of causation; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

I

Key Facts

 

In 1989, Akridge began working at Alfa, an insurance company. In 1993, Akridge was diagnosed with MS and began suffering from severe migraines. By 2015, Akridge was promoted to a strategic coordinator position in Alfa’s auto underwriting department. Akridge’s primary task concerned the strategic underwriting program, in which she worked with Alfa’s agents and district managers to identify profitable policies for struggling agents. Akridge also (1) prepared a monthly strategic underwriting report for that program; (2) created manuals for auto and watercraft underwriting; (3) verified proofs of insurance for lawsuits with auto claims; (4) assisted with rate filings for the state insurance department; and (5) taught workshops for agents and district managers. USCA11 Case: 22-12045 Document: 54-1 Date Filed: 02/16/2024 Page: 3 of 51 4 Opinion of the Court 22-12045 By all accounts, Akridge excelled at her job, with excellent performance reviews. In the mid-nineties, Alfa named her employee of the year. Akridge estimated that she reduced Alfa’s losses by $2 million in her first nine months as coordinator of the strategic auto underwriting program. Alfa was self-insured and paid the healthcare costs of its employees. Akridge estimated that it cost Alfa between $10,000 and $12,000 per month to treat her MS and migraines. While it was common knowledge at Alfa that Akridge had MS, no one at Alfa ever said anything to Akridge about her healthcare costs.

 

The decisionmakers discussed eliminating Akridge’s position for one to two weeks before her termination. They ultimately decided to terminate Akridge because some of her responsibilities were now automated and other responsibilities that could not be automated were absorbed by other employees. Akridge’s non-automated responsibilities were given “to other people in the department that had been doing those [tasks] as well.” Chancey testified that Alfa did not have enough spare responsibilities to combine with these non-automated duties to keep Akridge’s position or create a new one for her. Regarding automation, the decisionmakers testified that Alfa had automated the strategic underwriting program, including the report Akridge created. Essentially, Akridge’s interaction with agents and district managers using information from the strategic underwriting report became an automated “pull and a self-service functionality,” allowing agents and district managers in the field to access that information themselves.

 

In December 2016, Coshatt and Plaster informed Akridge in person that Alfa was eliminating her position effective immediately due to the expense of developing Guidewire and in the interest of cutting business expenses companywide. During this meeting, Coshatt and Plaster did not mention Akridge’s disabilities or healthcare costs.

 

After being terminated, Akridge wished to remain at Alfa, but she did not apply to any open positions. Akridge asked Al Dees, Vice President of Marketing, if he could create a new position for her. Dees told Akridge that he already had created marketing positions for two other employees from the underwriting department whose positions were eliminated, and he could not create another position for her. At the time of her termination, there were no openings in the underwriting department. White on her own reviewed openings in other departments, but she did not think Akridge’s skills would be a good fit.

 

In her amended complaint, plaintiff alleged that the defendant violated the ADA by discriminating against her based on her disability by firing her to avoid paying her healthcare costs.

 

II

Majority’s Reasoning That But For is The ADA Causation Standard

 

  1. When evaluating an ADA claim, the 11th Circuit uses the McDonnell Douglas burden shifting framework that often applies in Title VII claims.
  2. The 11th Circuit has long understood that the ADA imposes a but for causation standard, which means that an adverse employment action would not have occurred but for the plaintiff’s disability.
  3. In 2008, Congress changed the ADA language of from “because of,” to, “on the basis of disability.”
  4. Several circuits have concluded that the amended language of “on the basis of,” means but for causation.
  5. “On the basis of,” is strongly suggestive of a but for causation standard.
  6. The 11th Circuit agrees with other circuits that the switch from “because of,” to “on the basis of,” did not change or affect the but for causation standard.
  7. The motivating factor causation standard of Title VII is a distinct standard and is more forgiving than a but for standard.
  8. A but for standard means that a plaintiff has to show that a particular outcome would not have happened but for the purported cause.
  9. The employee friendly causation standard of motivating factor does not apply to ADA claims because that standard is drawn directly from the statutory text of Title VII.
  10. The ADA does not contain any motivating factor language in its statute.
  11. Even with respect to Title VII, the Supreme Court has pointed out that Congress chose to place the motivating factor language into only a subset of Title VII claims and not into other claims, such as retaliation, which still use but for causation. See this blog entry.
  12. When Congress amended Title VII to add the “motivating factor,” language, it contemporaneously amended the ADA without including motivating factor standard.
  13. An ADA plaintiff can certainly have more than one but for cause for her termination.
  14. Part of the problem is that some case law conflates “motivating factor,” with but for. They are two separate standards.

III

Majority Reasoning That Pretext Cannot Be Shown

 

  1. The reason for termination cannot be proved to be a pretext for discrimination unless it is shown that both the reason was false and that the discrimination was the real reason. Both must be true. The inquiry centers on the employer’s belief and not on the employee’s belief. In other words, the inquiry does not focus on reality as it exists outside the decision-maker’s head.
  2. Plaintiff fails to create a genuine factual dispute that the reasons for firing her was both false and that the true reason was her high healthcare costs. While the decisionmakers knew of her disabilities, the evidence does not show that anyone, and certainly not the decisionmakers, knew of her specific individual healthcare costs.
  3. Even viewing the record in the light most favorable to the plaintiff, the evidence is still based on conjecture or speculation, which isn’t good enough.
  4. Plaintiff’s evidence also does not show that the nondiscriminatory reasons for her termination were false, i.e. that her position was not automated, others were not able to absorb her nonautomated duties, or that the defendant wished to reduce business expenses.

IV

Majority Reasoning That Convincing Mosaic Alternative Is of No Help To The Plaintiff

 

  1. A plaintiff’s convincing mosaic can be made up of many different things (these things are not exclusive): 1) suspicious timing, ambiguous statements, and other bits and pieces from which an inference of discriminatory intent might be drawn; 2) systemically better treatment of similarly situated employees; and 3) evidence that the employer’s justification is pretextual.
  2. Plaintiff worked for the defendant for many years costing the defendant as much as $11,000 per month prior to her termination decades later.
  3. The changing of her COBRA coverage doesn’t work either because the defendant continued to pay $10,000-$12,000 per month for nine months before changing the coverage.
  4. Companywide statements about rising healthcare costs and the general nature of self-insured businesses are too removed from plaintiff’s termination in time and scope for a jury to infer discriminatory intent. This is especially the case given the absence of any comments, ambiguous or otherwise, to the plaintiff or others about her healthcare costs.
  5. Use of comparators is permissible in a convincing mosaic alternative, but the comparators simply don’t hold up on further analysis as being similar.

V

Majority Response to Dissent’s View of Causation

 

  1. The dissent simply gets it wrong for several reasons that follow below.
  2. There can be multiple but for causes of an adverse employment action.
  3. But for causation simply requires that a disability be shown to be determinative rather than the sole decision-making factor. There certainly can be more than one such cause for an adverse employment action.
  4. But for causation is distinct from a motivating factor, and the Supreme Court in Bostock, which we discussed here, said as much.
  5. The dissent mistakenly relies on the ADA’s incorporation of different Title VII provisions with respect to motivating factor language being incorporated into the ADA. Such an approach ignores that several circuits have expressly held that while the ADA incorporates some Title VII provisions, it does not incorporate the motivating factor causation standard found in Title VII.
  6. Even after the 2008 amendments, many circuits have held that but for causation applies to ADA claims despite the change in terminology by Congress.
  7. The Supreme Court has held that the motivating factor standard does not apply to all Title VII claims. For example, the Supreme Court has held, in the case that we discussed here, that retaliation claims under Title VII are governed by a but for causation standard.
  8. Legislative history is not a work around for the plain meaning of a statute’s text.
  9. Congress could have simply added motivating factor language, like it did in the 1991 amendment to Title VII, if it wanted the ADA to utilize a motivating factor standard. It didn’t do that. As a result, one has to presume that the choice not to do that was intentional.

VI

Judge Abudu’s Dissent On Majority’s View Of Causation

 

  1. After Price Waterhouse, Congress amended Title VII to explicitly allow for a mixed motive standard of causation.
  2. Congress enacted the ADA shortly after passing into law the mixed motive amendments.
  3. Congress also incorporated by reference Title VII’s powers, remedies, and procedures linking the two statutes.
  4. The ADA contains no other enforcement remedies provision besides those explicitly incorporated from Title VII, and those remedy sections specifically incorporate a plaintiff’s ability to proceed under mixed motive causation.
  5. Congress changing “because of,” to “on the basis of,” has to mean something. In particular, it must mean that Congress sought to retain the motivating factor causation standard.
  6. Before and after the amendments to the ADA, sister circuits applied and continue to apply a motivating factor standard in ADA cases.
  7. Legislative history shows that the purpose of the amendment was not to disturb the original causation standard that has been appropriately interpreted by the 11th Circuit and other circuits, but to instead decrease the debate about what constitutes a disability.
  8. Strong and enforceable standards are ones that deter discrimination and not condone it. Raising the bar to a but for causation standard is contrary to the ADA’s direct link to Title VII, historical contexts, legislative history, and purpose.
  9. Even assuming motivating factor applies to this case, plaintiff did not bring forth evidence to get by summary judgment even under that more liberal standard. In particular, there was no evidence showing that any of the decisionmakers knew of plaintiff’s healthcare costs. She also did not present any evidence showing or genuinely questioning whether the head of human resources had any access to her healthcare costs during those years.

VII

Thoughts/Takeaways

 

  1. The decision is published.
  2. A petition for rehearing en banc was filed but ultimately denied.
  3. The majority approach is that but for and motivating factor are two completely different standards.
  4. It is not easy to prove pretext when you have to show both the reason was false and the discrimination was the real reason. To my mind, that comes close to sole cause. The court would have been better off using “but for cause,” instead of “real reason,” or “true reason.”
  5. I once had a plaintiff attorney tell me that motivating factor was an impossible standard for a jury to figure out, and he actually preferred the but for standard.
  6. Why would Congress change causation language if the meaning of the change was superfluous?
  7. The Rehabilitation Act uses a solely by reason of standard, and it is becoming clearer every day that that standard really means what it says.
  8. You can have more than one but for causation. Anything that is a determining factor satisfies the but for causation standard.
  9. Convincing mosaic in the 11th Circuit is an alternative to McDonnell Douglas.
  10. If motivating factor is not a thing with the ADA, then how can you use McDonnell Douglas for deciding summary judgment motions in the first place?
  11. It is not correct to say that the ADA incorporate title VII as the sole enforcement remedy because the ADA is more than just Title I. For example, Title II of the ADA incorporates the remedies associated with the Rehabilitation Act, i.e. Title VI. The causation logic of the dissent would not hold up with respect to title II of the ADA because “by reason of,” (title II), and “solely by reason of,” (§504 of the Rehabilitation Act), are quite clearly two very different causation concepts.
  12. Absolutely true that retaliation is governed by a but for standard, as mentioned above.
  13. It would seem to me that if you get rid of motivating factor from the equation of using McDonnell Douglas for deciding motions for summary judgment, you are left with a convincing mosaic standard. See this blog entry.

 

 

White miniature poodle on Bill's lap (Bill is white and has curly hair and glasses and is wearing a gray T-shirt).
Bill and his service animal

Hope everyone had a great Easter weekend. The blog of the week is actually a two-for-one. We will discuss an update to a previous blog entry, here. After that, we will discuss a decision from a Colorado appellate court clarifying the rules with respect to service animals, Stalder v. Colorado Mesa University, here.

 

First off, we turn to the Fifth Circuit case in Lartigue v. Northside Independent School District. It turns out the Fifth Circuit withdrew that opinion and substituted another. Not entirely clear why they did that. They could have done that for a variety of reasons. The dissent is basically the same, so we will not focus on that. As usual, the blog entry is divided into categories and they are: new additions from the Lartigue majority expanding upon the withdrawn opinion; Stalder v. Colorado Mesa University facts; Stalder’s discussion of the law pertaining to service animals; Stalder’s discussion of the application of the law to the facts so as to necessitate reversing the grant of summary judgment; Stalder’s discussion of why case law talking about further documentation requests being permissible if there are legitimate suspicions is not good law; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

New Additions from the Lartigue Majority Expanding upon the Withdrawn Opinion

 

  1. Majority goes into further detail as to why collateral estoppel doesn’t apply. In essence, relitigation of an issue is not precluded unless the facts as well as the legal standard used to assess them are the same in both proceedings, which isn’t the case here. It is the court that has to independently analyze whether the legal standards are significantly different. The yardstick to measure compliance with IDEA is the provision of a free appropriate public education through an IEP plan. On the other hand, the yardstick for an ADA claim is not adherence to an IEP plan, but is whether the public entity failed to make reasonable accommodations, specifically accommodations giving a student with a disability equal access as her nondisabled peers.
  2. IDEA and ADA not only have different legal standards but require different accommodations and different facts are critical for each, which is why the IDEA hearing officer did not address a variety of facts critical to the plaintiff’s ADA claims.
  3. ADA has an effective communication rule for title II and for title III, which is entirely absent in the IDEA. We have discussed the effective communication rules numerous times in the blog, such as here.
  4. Standalone ADA claims are possible even where a free appropriate public education issue is also involved.
  5. The court specifically declined to decide whether Cummings, which we discussed here, prohibition on emotional distress damages applies to title II of the ADA. The court noted that title II of the ADA is not spending clause legislation. The court did say that the district court may consider the issue if need be.

 

 

 

 

II

Stalder v. Colorado Mesa University Facts

 

  1. Plaintiff attended Colorado Mesa University, a public university, from the fall of 2019 to the summer of 2022.
  2. Plaintiff has posttraumatic stress disorder, anxiety, and depression.
  3. Plaintiff’s parents purchased a dog because they knew he wanted the dog for mental health reasons. At the time of the purchase, plaintiff was told that the dog was an emotional support animal.
  4. Plaintiff personally trained the dog and by January 2021, the dog was trained as a service animal. Plaintiff testified that he watched online videos to learn how to train the dog. He also testified that the dog is trained to remove him from situations causing him to have PTSD, anxiety, or depressional episodes. The dog also has been trained to provide pressure therapy and remind him when to take his medications.
  5. Things started going sideways when the plaintiff entered the gym at Colorado Mesa University with the dog. He told Colorado Mesa University personnel that the dog was an emotional support animal, but later testified at his deposition that he was initially confused about the terminology distinguishing between emotional support animals and service animals.
  6. Subsequently, the Director of Advocacy and Health at Colorado Mesa University emailed the six plaintiff the University’s service animal policy and informed him that only service animals were allowed in campus buildings and that his dog would not allowed in any campus buildings including the recreation center. He also explained the difference between therapy and service animals. He said that the plaintiff told him that the dog was not trained as a service dog.
  7. The very next day, plaintiff went to USAservicedogregistration.com (I am in no way endorsing this site), and registered the dog as a service animal paying $200 for a service animal certification and a service dog identification badge.
  8. On February 12, plaintiff went to the gym and said that his dog was a service animal and presented the dog’s badge that he got from the Internet. The gym staff let the plaintiff and his dog inside. That led to a conversation between Colorado Mesa University personnel whereby the difference between a service animal and emotional support animal was discussed as well as the persuasive nature, if any, of the registration that plaintiff did on the Internet. The conclusion was that plaintiff’s dog was not a service dog.
  9. Plaintiff met with the Director of Campus Safety and Student Conduct whereby he presented the dog’s badge and service animal certification. He informed the Director of Campus Safety that his dog was trained to warn him to remind him when he takes medication and that he was continuously training the dog.
  10. The Director of Advocacy and Health then requested more information and that plaintiff grant him permission to talk to his medical provider. He emailed the plaintiff saying that he needed to confirm with his healthcare providers that plaintiff has a disability and attached the consent form. The response from the plaintiff was that his dog was being kept off-campus in violation of the ADA and that he was seeking legal advice. He also said that the dog provided him with a service in direct support of his disability, which was heavily documented.
  11. Plaintiff then provided a note that he obtained online from a California social worker prescribing the plaintiff to have a psychiatric service dog.
  12. Plaintiff also explained that at the time he claimed the dog was an emotional support animal he did not know what a service animal was, so it would have been fraudulent for him to claim that the dog was a service animal when he did not know at the time that it actually was.
  13. The Director of Advocacy and Health then told plaintiff that he could not bring his dog on campus unless he provided documentation that the dog was a trained service animal. The author later told the plaintiff that the dog could only come on campus if the plaintiff took the dog to an obedience class and provided documentation of the dog’s attendance. At that point, plaintiff responded that his rights under the ADA were being violated, that he would get legal representation, and he was cutting off further discussion. He proceeded to sue under both the ADA and the Colorado version of the ADA as well as intentional infliction of emotional distress claims. The district court granted summary judgment on all claims and the plaintiff appealed. For the reasons discussed below, the appellate court affirms summary judgment on the intentional infliction of emotional distress but reverses as to the other claims.

 

II

Stalder’s Discussion of the Law Pertaining to Service Animals

 

  1. Under the Colorado version of the ADA, a qualified individual with a disability has the right to be accompanied by a service animal individually trained for that individual in any place of public accommodation, including educational institutions.
  2. The Colorado version of the ADA defines service animal by referencing the implementing regulations of the ADA.
  3. The ADA regulations, 28 C.F.R. §35.104, provides that a service animal means any dog individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. Further, that work or task must be directly related to the individual’s disability and providing emotional support does not constitute work or tasks.
  4. The Colorado version of the ADA is substantially equivalent to the ADA and therefore, should be interpreted consistently with the ADA.
  5. It is up to the plaintiff to point to evidence of individual training to set a service animal apart from an ordinary pet. However, that requirement is not taxing and there are no federally-mandated animal training standards. There is no requirement as to the amount or type of training that a service animal must undergo, and there is no requirement to the amount or type of work a service animal must provide for the benefit of the person with a disability.
  6. A dog’s owner can be its trainer.
  7. It is not necessary for plaintiff to show that the dog was trained by a quote certified trainer.” In fact, a dog may be trained at home.
  8. In a footnote, the court noted that service dogs in training are not covered by the ADA at all but are rather a matter for state law.
  9. The bar for demonstrating a genuine issue of fact regarding a dog’s status as a service animal is not a high one.

 

III

Stalder’s Discussion of the Application of the Law to the Facts So as to Necessitate Reversing the Grant of Summary Judgment

 

  1. Plaintiff testified in his deposition that he adopted the dog at the end of November 2020 and trained him as a service dog by January 2021.
  2. He also testified that he watched videos online to learn how to train the dog.
  3. He testified that the dog is trained to remove him from situations causing him to have PTSD, anxiety, or depression or episodes and even gave examples of how the dog does that during the course of his deposition testimony. In short, he discussed how the dog engages in recognition and response to various situations.
  4. An individual may self-train a service animal under the ADA, and a person is not required to present any documentary evidence showing the amount or type of training that the animal undergoes.
  5. The deposition testimony was not conclusory. Rather, plaintiff asserted that he had trained the dog and explained what tasks the dog could perform. Those tasks make it clear that the dog goes far beyond providing the plaintiff with emotional support, well-being, comfort, or companionship.
  6. Plaintiff gave a plausible explanation as to why he originally said that the animal was not a service animal. At that time, he had a letter saying that the dog was an emotional support animal, which to plaintiff meant that the dog was a service animal in training.
  7. Plaintiff stated that after adopting the dog, he trained the dog to become a service animal.
  8. He testified that before he registered the dog as a service animal on the Internet, he was confused about the service animal and emotional support animal terminology.
  9. In a footnote, the court noted that the issue at trial will be whether the dog was a service animal in February 2021 and not at some later date.
  10. In another footnote, the court noted that summary judgment is not a substitute for trial. In other words, the fact that a jury might ultimately choose not to credit certain explanation cannot alter the fact that there are genuine issues of material facts to be resolved by the jury.

 

IV

Stalder’s Discussion of Why Case Law Talking about Further Documentation Request Being Permissible If There Are Legitimate Suspicions Is Not Good Law

 

  1. The legitimate suspicions doctrine is inconsistent with the ADA regulations and the district court erred by relying on it.
  2. The ADA regulations, 28 C.F.R. §35.136(f), specifically provide that a public entity cannot ask about the nature or extent of a person’s disability, but may make two inquiries in order to determine whether an animal qualifies as a service animal. Those two inquiries are: 1) whether the animal is required because of a disability; and 2) what work or task the animal has been trained to perform. A public entity cannot require documentation, such as proof that the animal has been certified, trained, or licensed as a service animal. In a footnote, the court noted that Colorado Mesa University did not attack the validity of the regulation itself.
  3. The regulation permits public entities to make only two specific inquiries. The regulation became effective on March 15, 2011.
  4. In a footnote, the court notes that identical regulations for service animals exist for places of public accommodation per Title III.
  5. The cases cited by the district court existed prior to the date of the regulations containing the two inquiry approach. The one case after the date of those regulations mistakenly relied on cases prior to the regulations. So, no legal authority exists for the legitimate suspicion doctrine.

 

V

Thoughts/Takeaways

 

  1. With respect to Lartigue, the best approach is to read our prior blog entry discussing the now withdrawn opinion and then also read the new opinion. There are two points from the new opinion worth repeating here: 1) relitigation of an issue is not precluded unless the facts as well as the legal standard (both must be present), used to assess them are the same in both proceedings; and 2) standalone ADA claims are possible even where a free appropriate public education issue is also involved. The dissent goes to the same place both times. With respect to Stalder see the below thoughts and takeaways.
  2. Stalder’s impression that an emotional support animal is a service dog in training is not correct. An emotional support animal may be in training to be a service animal but it might not be.
  3. I have seen persons with disabilities use the nomenclature that their dog is an emotional support animal. However, upon further discussion, it is clear that the animal is actually a service animal. On the plaintiff side, do not assume that the person with a disability knows the difference between an emotional support animal and a service animal. On the defense side, the two inquiries exist for a reason. Make sure those inquiries are made. I am of the view that it may even be negligence in the event of injuries caused by a dog, for various kinds of businesses, such as those operating restaurants, to not make those two inquiries.
  4. Legitimate suspicions is not a thing. Whether an animal is a service animal entirely depends upon the two inquiries and getting further documentation along the lines of Title I of the ADA or along the lines of the Fair Housing Act, is simply not how it works. A person with a disability is not required to present any documentary evidence showing the amount or type of training the animal had.
  5. Knowledgeable legal counsel who understands how these issues work in different ways across the Titles I-III of the ADA and the Fair Housing Act, is very important.
  6. In full disclosure, the United States District Court in New Mexico, here, did say that my testimony would have been allowed with respect to whether a dog involved in that case was actually a service animal.
  7. Internet registration is not a thing that affects any of this. Registering animals by way of the Internet is definitely an issue in the Fair Housing Act arena as the latest HUD circular, here, makes clear.
  8. Emotional support animals are a Fair Housing Act issue and are not protected by the ADA or for that matter the Air Carrier Access Act.
  9. Training of staff on the two inquiry approach is super important or else things, as this case illustrates, can go terribly wrong.
  10. Open question as to whether emotional distress damages are available under title II of the ADA.
  11. Many states have disability discrimination laws tracking the ADA, but not all. For example, Alabama does not have any discrimination laws at the state level and Georgia only has a very limited one.
  12. States can vary in how closely they track the ADA regulations when it comes to how they deal with service animals.
  13. Service animals in training are entirely a creature of state law and the specific statutes can vary considerably.
  14. I am not licensed to practice law in Colorado.
  15. Individuals can certainly train their dogs to be service animals. I did that with my miniature poodle.
  16. A service animal can be an animal that works only in the house and not outside. Mine certainly is. I have been told that for Deaf and deaf individuals, that is not unusual at all.
  17. Plaintiffs have the burden to point to evidence of individual training, but that is not a high burden to meet. As the court noted: 1) no federally-mandated animal training standards exist; 2) no requirement at the amount or type of training that a service animal must undergo exists; and 3) no requirement to the amount or type of work a service animal provides for the benefit of the person with the disability exists.
  18. Courts vary considerably on whether summary judgment is a screening tool for all but the best cases or whether summary judgment does not act as a substitute for trial.
  19. While Stalder is a Colorado case, it’s close reliance on the ADA regulations mean practitioners all over the country should take notice. It is an excellent roadmap for how to deal with the situations arising in this case, which happen frequently.
  20. Animals are not allowed everywhere on the college campus, here, but that doesn’t circumvent the two inquiry paradigm.

Today’s blog entry does not have anything to do with people with disabilities per se. However, people with disabilities like anybody else do have the right to express their support or displeasure with public officials. That of course leads to two questions. First, what happens if the website where they can post comments is not accessible to them? We are not covering that point today. The second question is what happens if the public official blocks a person from commenting or deletes certain comments of an individual. It is the second question that was the subject of the Supreme Court decision in Lindke v. Freed, here. As usual, the blog entry is divided into categories and they are: facts; court’s approach to determining when a public official engages in impermissible viewpoint discrimination when using an Internet vehicle for both private and professional purposes: overview; court’s approach to determining when a public official engages in impermissible viewpoint discrimination when using an Internet vehicle for both private and professional purposes: actual authority; court’s approach to determining when a public official engages in impermissible viewpoint discrimination when using an Internet vehicle for both private and professional purposes: using state authority; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

Sometime before 2008, Freed created a private Facebook profile that he shared only with “friends.” When he began nearing the platform’s 5,000 friend limit, he converted his profile to a public page, which means that anyone could see and comment on his posts. He also chose public figure for his page’s category. In 2014, he was appointed City Manager of Port Huron, Michigan and updated his Facebook page to reflect the new job. He even included a photo of himself in a suit with the city’s lapel pin affixed for his profile picture. He also added a title, a link to the city’s website, and the city’s general email address. He described himself in both personal and professional terms on his page. On his page, he continued to post both public related information as well as private information. He also often replied to comments, including answering inquiries from city residents. When the pandemic hit, one of the commenters, Lindke, continually expressed frustration with the way the city was handling the pandemic. Initially, Freed deleted posts and then ultimately blocked him altogether. Once blocked, Lindke could see Freed’s posts but could no longer comment on them.

 

Lindke sued for violations of §1983 claiming that Freed engaged in impermissible viewpoint discrimination by deleting unfavorable comments and blocking the people who made them. Not all of the Circuits take the same approach in this situation, so the Supreme Court stepped in to resolve the issue.

 

II

 

Court’s Approach to Determining When a Public Official Engages in Impermissible Viewpoint Discrimination When Using an Internet Vehicle for Both Private and Professional Purposes: Overview

 

  1. Public officials can act on behalf of the State but also have their own constitutional rights as private citizens.
  2. A person does not relinquish his First Amendment rights simply by becoming an officeholder.
  3. A public official’s social media activity conflates to state action under §1983 only if the official: 1) possesses actual authority to speak on the State’s behalf; and 2) purports to exercise that authority when he spoke on social media. They are independent requirements and should not be conflated.

 

III

Court’s Approach to Determining When a Public Official Engages in Impermissible Viewpoint Discrimination When Using an Internet Vehicle for Both Private and Professional Purposes: Actual Authority

 

  1. An action is not attributable to a State unless it is traceable to the State’s power or authority.
  2. The presence of state authority must be real and not a mirage. So, the question is whether Freed was possessed of state authority to post city updates and register citizen concerns.
  3. The censorship must be connected to speech within Freed’s bailiwick.
  4. For state action to exist, the State must be responsible for the specific conduct of what the plaintiff complains. That is, there must be a tie between the official’s authority and the gravamen of the plaintiff’s complaint.
  5. In trying to figure out what authority exists, potential sources include: statutes; ordinances; regulations; custom; or usage.
  6. Statutes, ordinances, regulations refer to written law through which a State authorizes an official to speak on its behalf.
  7. Custom and usage refers to persistent practices of state officials that are so permanent and well-settled that they carry the force of law.
  8. A court cannot short-circuit First Amendment rights by relying on excessively broad job descriptions to conclude that a government employee is authorized to speak for the State. That is, the inquiry is not whether making official announcements could fit within the job description; it is whether making official announcement is actually part of the job that the State entrusted the official to do.

 

IV

Court’s Approach to Determining When a Public Official Engages in Impermissible Viewpoint Discrimination When Using an Internet Vehicle for Both Private and Professional Purposes: Using State Authority

 

  1. Generally, a public employee purports to speak on behalf of the State while speaking in his official capacity or when using his speech to fulfill his responsibilities pursuant to state law.
  2. Freed’s Facebook account did not carry any label or a disclaimer saying that the views expressed on the page are strictly his own. If he did, he would be entitled to a strong but not irrebuttable presumption that all the posts on his page were personal.
  3. Context can make clear that a social media account purports to speak for the government. For example, when an account belonged to a political subdivision or is passed down to whomever occupies a particular office.
  4. Categorizing posts that appear on a page that is both personal and simultaneously one for a public official is a fact specific undertaking in which the post’s content and function are the most important considerations.
  5. In a footnote, the Court says that an official cannot insulate government business from scrutiny by conducting it on a personal page.
  6. It is crucial for the plaintiff to show that the official is purporting to exercise state authority in specific posts.
  7. An official using government staff to make a post will be hard pressed to deny that he was conducting government business.
  8. Deleting and blocking a user are two very different things. With respect to deleting posts, the only relevant posts are those from which the plaintiff’s comments were removed. However, blocking operates on a page wide basis, so a court must consider then Freed’s actions with respect to any post on which Lindke wished to comment upon.
  9. The bluntness of Facebook’s blocking tool, which is similar to many on the Internet, highlights the costs of using a mixed use social media account. When page wide blocking is involved, a public official might be unable to prevent someone from commenting on his personal posts without risking liability for also preventing comments on his official posts. So, a public official failing to keep personal posts in a clearly designated personal account thereby exposes himself to greater potential liability, especially when it comes to blocking others from commenting.

 

V

Thoughts/Takeaways

 

  1. The moral of the story is you are an officeholder of some kind or work for a governmental entity and have responsibility with respect to the Internet site or with broadcasting what is going on in the governmental entity in some way and also have a private page (Facebook or Instagram for example), keep the accounts separate.
  2. Unanimous opinion by Justice Barrett.
  3. If a person working for a governmental entity is commenting on their site used for private purposes, have a disclaimer in there saying that the opinions are their own and not their employer’s.
  4. Mixed use accounts by those working for governmental entities will result in a very fact specific analysis to the point where plaintiffs would probably survive a summary judgment motion. So, if at all possible, stay away from pages that are mixed use.
  5. The test offered by the Court is not necessarily easy to understand. What helps me in thinking about it is the Court’s statement that there has to be a tie between the official’s authority and the gravamen of the plaintiff’s complaint. Also, the Court’s statement as to where that authority comes from is helpful. That is, you look to statutes, ordinances, and regulations as well as to custom and usage.
  6. With respect to determining whether the authority exists at all, getting caught up in job descriptions is a recipe for disaster.
  7. With respect to using the authority, markers to look to include: 1) labels and disclaimers; 2) who is hosting the page; 3) the specific act involved; 4) whether information is being repeated or whether the person is sharing otherwise available information; 5) whether government staff is used to make a post; and 6) the nature of the technology involved, such as blocking v. deleting. From reading the opinion, the list is clearly not exclusive. It is also very fact specific, all of which adds complexity to any litigation as well as expense.
  8. You can expect lots of future litigation on both sides of the test laid out by the Supreme Court, but especially when it comes to whether the authority was actually being used as it is so fact specific.
  9. Nothing wrong with an employee of a governmental entity or an office holder engaging in private speech related to his public employment or concerning information learned during that employment. For example, repeating or sharing otherwise available information falls into this category.
  10. Whether the authority exists to my mind, is a much more straightforward analysis than whether the authority is actually being used. If I am the lawyer for a governmental entity, it might make a great deal of sense to put out a bulletin to all the employees, including any officeholders, that their personal page should contain a disclaimer saying that anything that appears on that page is their view and not of their employer.

Today’s blog entry is a discussion of the Department of Transportation rule published on March 12, 2024 entitled, “ensuring safe accommodation for air travelers with disabilities using wheelchairs,” here. As usual, the blog entry is divided into categories and they are: the DOT summary of regulatory provisions; and thoughts/takeaways and particular concerns. The blog entry is pretty short, so the reader probably will want to read all of it.

I

DOT Summary of Regulatory Provisions

Table 1—Summary of NPRM Proposals
Subject Proposal
Safe and Dignified Assistance Clarifies that safe and dignified assistance to individuals with disabilities is required when providing required accommodations.
Prompt Enplaning, Deplaning, and Connecting Assistance Clarifies that prompt enplaning, deplaning, and connecting assistance is required, including moving within the airport terminal. Prompt is determined based on the totality of circumstances, except when physical assistance is needed to disembark the aircraft, in which case prompt means that: (1) personnel and boarding wheelchair must be available to deplane the passenger when the last passenger who did not request deplaning assistance departs the aircraft; and (2) the passenger’s personal wheelchair must be available as close as possible to the door of the aircraft to the maximum extent possible, except: (a) where this practice would be inconsistent with Federal regulations governing transportation security or the transportation of hazardous materials, (b) or when the passenger requests the wheelchair be returned at a location other than the door of the aircraft. If the passenger requests the wheelchair be returned at a location other than the door of the aircraft, an airport wheelchair must be available for the passenger’s use.
Mishandling of Wheelchairs and Assistive Devices as Per Se Violation Defines mishandled to mean lost, delayed, damaged, or pilfered ( i.e., stolen). Specifies that any mishandling of wheelchairs and assistive devices by airlines is a per se regulatory violation subject to administrative penalties. In the event of any mishandling of a wheelchair or scooter, requires airlines to immediately notify impacted passengers of their rights: (1) to file a claim with the airline, (2) to receive a loaner wheelchair from the airline with certain customizations, (3) to choose a preferred vendor, if desired, for device repairs or replacement, and (4) to have a Complaints Resolution Official (CRO) available and be provided information on how to contact the CRO.
Passenger Notifications After Wheelchair Is Loaded on and Unloaded from Aircraft Requires airlines to timely notify passengers when their wheelchairs or scooters have been loaded to and unloaded from the cargo compartment of their flights. Requires airlines to notify passengers immediately upon learning that the passenger’s wheelchair or scooter does not fit on the plane.
Prompt Return of Delayed Wheelchairs or Scooters Requires airlines to transport a delayed wheelchair or scooter to the passenger’s final destination within 24 hours of the passenger’s arrival by whatever means possible. Requires airlines to provide the passenger a choice between picking up the wheelchair or scooter at his or her destination airport or having the wheelchair delivered to another location based on a reasonable request by the passenger, such as the passenger’s home or hotel. Depending on the passenger’s choice, the Department would consider the wheelchair or scooter to be provided to the passenger (1) when the wheelchair or scooter is transported to a location requested by the passenger if the passenger chooses to have it delivered, regardless of whether the passenger is present to take possession of the wheelchair or scooter; or (2) when the wheelchair or scooter has arrived at the destination airport, is available for pickup, and the carrier has provided notice to the passenger of the location and availability of the wheelchair or scooter for pickup if the passenger chooses to pick it up.
Prompt Repair or Replacement of Damaged Wheelchairs or Scooters Following a mishandling, requires airlines to provide passengers the option of: (1) the carrier handling the repair or replacement of the device , with a device of equivalent or greater function and safety, within a reasonable timeframe and paying the associated costs; or (2) the passenger arranging for the repair or replacement of the device, with a device of equivalent or greater function and safety, through his or her preferred vendor with the carrier having the responsibility to transport the device to the preferred vendor and pay the vendor directly for the repairs or replacement.
Loaner Wheelchair Accommodations Requires airlines to provide loaner wheelchairs while individuals with disabilities are waiting on repairs or replacement of a mishandled device. Requires airlines to consult with the individual receiving the loaner wheelchair to ensure that the loaner wheelchair fits the passenger’s functional needs, as much as possible, and safety-related needs.
Enhanced Training for Certain Airline Personnel and Contractors Requires annual training, including hands-on training, of airline employees and contractors who physically assist passengers with mobility disabilities or handle passengers’ wheelchairs or scooters.
New Improved Standards for On-Board Wheelchairs (OBW) Requires new improved performance standards for OBWs on twin-aisle aircraft and aircraft with 60 or more seats, consistent with standards for OBWs on single-aisle aircraft with 125 or more seats.
Size Standard for Lavatories on Twin-Aisle Aircraft Seeks comments regarding whether to specify that one lavatory needs to be of sufficient size: (1) to permit both a passenger with a disability and an attendant to enter and maneuver within the lavatory; and (2) to set a 95th percentile male standard for the individual with a disability and the attendant in place of the non-specific standard currently set forth for twin-aisle aircraft lavatories.
Reimbursement of Fare Difference Seeks comments regarding whether U.S. and foreign air carriers should be required to reimburse the difference between the fare on a flight a wheelchair user took and the fare on a flight that the wheelchair or scooter user would have taken if his or her wheelchair or scooter had been able to fit in the cabin or cargo compartment of the aircraft.

 

 

II

Thoughts/Takeaways and Particular Concerns

 

  1. Comments are due May 13, 2024.
  2. 382.11(b) mandates that a carrier or an indirect carrier’s assistance must be performed in a safe and dignified manner. What is safe and dignified may vary considerably from person to person who has a disability. It also might vary depending upon the disability. Finally, the title of the regulation specifically pertains to wheelchair users, but this language appears to go beyond just wheelchair users. DOT anticipated my concern about “safe and dignified,” by specifically calling for comments discussing whether the terms “safe and dignified,” is something easily understood by carriers and the public. They also want to know whether the term should be defined and whether there are any specific practices or procedures that should be required or prohibited to safeguard the dignity and safety for passengers with disabilities.
  3. 382.141(a)(2) provides that an air carrier must ensure employees and contractors are trained to recognize requests for communication accommodations from individuals whose hearing or vision is impaired and to use the most common methods for communicating with these individuals that are readily available, such as writing notes or taking care to enunciate clearly. Training in sign language is not required. Employees must also be trained to recognize requests for communication accommodation from deaf-blind passengers and to use establish means of communicating with these passengers when they are available, such as passing out braille cards if you have them, reading and information sheets that a passenger provides, or communicating with the passenger through an interpreter, for example. There are numerous problems with this particular section. First, “hearing impaired,” is offensive to many of us in the hearing loss community. Second, for the Deaf (culturally deaf), writing notes and enunciating clearly are not likely to be effective means of communication. Third, no obligation to provide a sign language interpreter is present. Clearly, the standard suggested in this regulation for many in the hearing loss community falls far below the standard of what would be called effective communication per title II or III of the ADA, such as what we discussed in this blog entry. Fourth, it has been true for several decades that only 10% of the blind/visually impaired knows braille.
  4. With respect to training, §382.141(a)(5) requires consulting with organizations representing individuals with disabilities when developing training programs and policies and procedures. If such organizations are not available, the carrier can consult with individuals with disabilities and/or international organizations representing individuals with disabilities. My concern is that this section is too narrow because it is a restricted to organizations representing persons with disabilities, whatever that might mean. For example, must the organization be a nonprofit only? So, persons with disabilities in the business of doing training regarding the rights of people with disabilities would not seem to be able to provide this kind of training, which makes absolutely no sense to me. Also, what does “representing persons with disabilities,” mean?  It does make sense to require, as these proposed regulations do, that the training be hands-on and be more than a one-off. Another issue is that persons with disabilities silo. So, it isn’t necessarily true that an organization representing people with certain kinds of disabilities would necessarily understand the kind of issues faced by other disabilities. With respect to training, DOT seeks out comments for several different questions raised by the proposed regulation.
  5. Is there enough time to finalize the regulations before the November 2024 elections, assuming Pres. Biden does not win? Very open question as to whether a second Trump administration would continue with the kinds of regulations.
  6. How much deference will those regulations get once they are finalized is another question that we are waiting on the Supreme Court to tell us in two cases already argued and currently pending before them. See this blog entry.
  7. DOT specifically requested comments on a variety of different issues.
  8. The proposed regulations clarify that all boarding, deplaning, and connecting assistance be provided in a prompt manner using a totality of the circumstances test. DOT calls for comments regarding what it means to be prompt and what totality of the circumstances might mean.
  9. The regulations propose that any mishandling of the passenger’s checked wheelchair or other assistive device is a violation of the Air Carrier Access Act and makes the mishandling of a wheelchair or other assistive device a per se violation. Regarding this, DOT calls for comments on a variety of questions that this proposed regulation would raise.
  10. A variety of questions sought to be answered with respect to what happens when a wheelchair user has their wheelchair damaged in transit and the options an air carrier gives the person when that happens. Also, lots of questions about how the person using a wheelchair will get a similar wheelchair or the same kind of wheelchair back to them and how that process will occur.
  11. The thoughts/takeaways and the particular concerns section discussed here is not exclusive. Particularly if the reader is a wheelchair user, an in depth reading of the proposed regulations would be a good idea.
  12. For persons with disabilities and particularly for wheelchair users and people with mobility impairments, the time is now to get your comments in. Several sections of the proposed regulations strongly suggest that the disability community has not been particularly engaged with respect to these rules as of yet. The time to affect regulations is in the commenting period. Doing anything once the regulations are finalize is very difficult.

 

Good luck on your NCAA brackets for both women and the men. I read a Wall Street Journal article this week that they are expecting big ratings on the women’s side, perhaps even bigger than on the men’s side. If you have not seen Caitlin Clark play yet, you really should, and she isn’t the only phenomenal player in the tourney. My daughter’s school won both the men and women’s conference tournaments (both had fantastic regular seasons as well), so they are in the NCAA men’s and women’s tournaments. I will be glued to my TV set this week for those games.