Today’s blog entry takes a look at three different cases that either expand on prior blog entries or talk about subsequent developments with prior blog entries. This week is absolutely crazy for me as my daughter is graduating high school this week, probably on Friday, and we have company coming in today. So, the blog entry will be pretty short despite covering three different cases. As usual the blog entry is divided into categories and they are: DOJ statement of interest in State of Illinois v. CSL Plasma, Inc.; ADA testers have to show more than just testing a website for ADA compliance in order to have standing; and a Cummings update.

 

I

DOJ Statement of Interest in State of Illinois v. CSL Plasma, Inc.

 

CSL plasma is back for discussion with another case where they are arguing that they are not a place of public accommodation. This one is before Judge Roland in the Northern District of Illinois, Eastern Division. The Eastern Division of Illinois is Chicago and Chicago Metro. We have previously talked about whether plasma centers are a place of public accommodation three times before, see this blog entry. Here, the DOJ takes the position that the 10th Circuit and the Third Circuit are correct in holding that plasma donation centers are service establishments under the plain meaning of title III. They also say that the Fifth Circuit got it wrong when it said that plasma centers were not service establishments. The DOJ conclusion is based upon both a plain reading of the statute, the ADA’s statutory admonition that it needs to be construed broadly, and the ADA’s legislative history. CSL Plasma is a frequent defendant on these matters and is consistent in taking the position that they are not a place of public accommodation. Since there is a circuit court split on the issue, it is only a matter of time before the Supreme Court steps in. I am not at this point in time going to hazard a guess as to what the Supreme Court will do. I have also recently learned that gauging what they will do from oral argument is a very tricky endeavor indeed.

 

II

ADA Testers Have to Show More Than Just Testing a Website for ADA Compliance In Order to Have Standing

 

Previously, I have blogged, such as here, on the courts clamping down on serial plaintiffs and questioning whether tester standing with respect to title II and title III of the ADA is a thing any longer. On that line of cases, the United States District Court for the Northern District of California on May 16, 2022, issued a two-page order dismissing a serial website plaintiff claim in denying leave to amend with respect to the ADA claim. It also declined to exercise supplemental jurisdiction over plaintiff’s Unruh act claim. With respect to supplemental jurisdiction, I previously talked about that in this blog entry.

 

The key element to note about this case are: 1) plaintiff disclaimed any intention to visit the real estate physical office and did not wish to use the real estate website to facilitate access to services or goods beyond the website itself (a pure tester situation); 2) the Ninth Circuit has never held that the inability to access information on a website as a sole basis for an ADA claim is a situation where a plaintiff could bring a title III action; and 3) no allegations were made that the website’s inaccessibility separately impeded access to the goods or services of the public accommodation.

 

In short, one can expect defendants, especially if they have some resources, to fight back seriously against serial plaintiffs alleging that their websites are inaccessible by defending on standing grounds. As mentioned here, the combination of Trans Union and Cummings is going to make the life of testers under title II and title III of the ADA quite difficult.

 

III

Cummings Update

 

The Supreme Court almost never grants re-hearings in a case that is has decided. However, Cummings has filed for a rehearing with the Supreme Court. The basis of the rehearing is that somehow the parties as well as the court missed the important fact that the Rehabilitation Act does allow by statute, 29 U.S.C. §794a(a)(1), for emotional distress damages with respect to employment matters. It is only with respect to nonemployment matters, that the Rehabilitation Act is unclear. Further, as mentioned in my blog entry discussing this case, here, the Supreme Court made a broad holding that spending clause legislation, including the Rehabilitation Act and the Affordable Care Act, simply do not allow for emotional distress damages because of traditional contract principles. So, a rehearing is necessary to clear up that the Supreme Court opinion in Cummings only applies to nonemployment situations with respect to the Rehabilitation Act if the court believes that the explicit statutory provision in the Rehabilitation Act for emotional distress in employment matters does not color the decision with respect to emotional distress claims in nonemployment matters. It will be interesting to see what happens because as the petition for rehearing freely acknowledges, rehearings are just about never granted. If anything, the petition for rehearing is a public facing document offering a roadmap for plaintiffs bringing employment discrimination claims under §504 of the Rehabilitation Act to get around motions by the defense to have their emotional distress component of their claims dismissed. It will be certainly interesting to see what the Supreme Court does.

 

Before signing off, you may wonder why you would bring a §504 of the Rehabilitation Act claim at all in an employment situation and not an ADA title I claim, especially considering the fact that causation under §504 is “solely by reason of,” whereas the ADA per Bostock, which we discussed here, is most likely determining factor. The answer is that the ADA applies to employers of 15 or more individuals. On the other hand, the Rehabilitation Act applies to any entity taking federal funds. So, if an employer has less than 15 people is involved, §504 of the Rehabilitation Act would be the claim alleged and not title I of the ADA.

 

Last week, both the DOJ and the EEOC issued technical assistance memorandums/documents detailing their concerns about using AI in employment. It definitely made big news. As someone who knows individuals have gone through AI processes in hiring, these guidances are not surprising as one just had to figure that AI was being used to screen out people with disabilities. This blog entry is going to be organized a bit differently. The categories are: DOJ AI document key takeaways; and EEOC technical assistance document on AI. My thoughts/takeaways for the EEOC document appear in my thoughts § underneath each section where a thoughts/takeaways exists.

 

I

DOJ AI Document Key Takeaways

 

  1. In employment matters, DOJ enforces disability discrimination laws with respect to state and local government employers.
    • Still a good idea to exhaust administrative remedies with EEOC first.
  1. DOJ will look seriously at whether the AI screens out persons with disabilities.
  2. Employers must use accessible tests measuring the applicant’s job skills and not the disability, or they must make other adjustments to the hiring process so that a qualified person is not eliminated because of a disability.
  3. Know what a reasonable accommodation is.
    • Starting line analogy.
    • DOJ Guidance on AI is here.
  4. Don’t forget about the EEOC guidance on AI in employment, here and immediately below.

 

II

EEOC Technical Assistance Document on AI

 

Employers now have a wide variety of computer-based tools available to assist them in hiring workers, monitoring worker performance, determining pay or promotions, and establishing the terms and conditions of employment. Employers may utilize these tools in an attempt to save time and effort, increase objectivity, or decrease bias. However, the use of these tools may disadvantage job applicants and employees with disabilities. When this occurs, employers may risk violating federal Equal Employment Opportunity (“EEO”) laws that protect individuals with disabilities.

The Questions and Answers in this document explain how employers’ use of software that relies on algorithmic decision-making may violate existing requirements under Title I of the Americans with Disabilities Act (“ADA”). This technical assistance also provides practical tips to employers on how to comply with the ADA, and to job applicants and employees who think that their rights may have been violated.

The Equal Employment Opportunity Commission (“EEOC” or “the Commission”) enforces, and provides leadership and guidance on, the federal EEO laws prohibiting employment discrimination on the basis of race, color, national origin, religion, and sex (including pregnancy, sexual orientation, and gender identity), disability, age (over 40) and genetic information. This publication is part of an ongoing effort by the EEOC to educate employers, employees, and other stakeholders about the application of EEO laws when employers use employment software and applications, some of which incorporate algorithmic decision-making.

Background

As a starting point, this section explains the meaning of three, central terms used in this document—software, algorithms, and artificial intelligence (“AI”) —and how, when used in a workplace, they relate to each other.

  • Software: Broadly, “software” refers to information technology programs or procedures that provide instructions to a computer on how to perform a given task or function. “Application software” (also known as an “application” or “app”) is a type of software designed to perform or to help the user perform a specific task or tasks. The United States Access Board is the source of these definitions.

There are many different types of software and applications used in employment, including: automatic resume-screening software, hiring software, chatbot software for hiring and workflow, video interviewing software, analytics software, employee monitoring software, and worker management software.

  • Algorithms: Generally, an “algorithm” is a set of instructions that can be followed by a computer to accomplish some end. Human resources software and applications use algorithms to allow employers to process data to evaluate, rate, and make other decisions about job applicants and employees. Software or applications that include algorithmic decision-making tools may be used at various stages of employment, including hiring, performance evaluation, promotion, and termination.
  • Artificial Intelligence (“AI”): Some employers and software vendors use AI when developing algorithms that help employers evaluate, rate, and make other decisions about job applicants and employees. In the National Artificial Intelligence Initiative Act of 2020 at section 5002(3), Congress defined “AI” to mean a “machine-based system that can, for a given set of human-defined objectives, make predictions, recommendations or decisions influencing real or virtual environments.” In the employment context, using AI has typically meant that the developer relies partly on the computer’s own analysis of data to determine which criteria to use when making employment decisions. AI may include machine learning, computer vision, natural language processing and understanding, intelligent decision support systems, and autonomous systems. For a general discussion of AI, which includes machine learning, see National Institute of Standards and Technology Special Publication 1270, Towards a Standard for Identifying and Managing Bias in Artificial Intelligence.

Employers may rely on different types of software that incorporate algorithmic decision-making at a number of stages of the employment process. Examples include: resume scanners that prioritize applications using certain keywords; employee monitoring software that rates employees on the basis of their keystrokes or other factors; “virtual assistants” or “chatbots” that ask job candidates about their qualifications and reject those who do not meet pre-defined requirements; video interviewing software that evaluates candidates based on their facial expressions and speech patterns; and testing software that provides “job fit” scores for applicants or employees regarding their personalities, aptitudes, cognitive skills, or perceived “cultural fit” based on their performance on a game or on a more traditional test. Each of these types of software may include AI.

My Thoughts: a nice job of describing the background for the guidance document and providing definitions of key terms.

ADA Basics

  1. What is the ADA and how does it define “disability”?

The ADA is a federal civil rights law. Title I of the ADA prohibits employers, employment agencies, labor organizations, and joint labor-management committees with 15 or more employees from discriminating on the basis of disability. Other parts of the ADA, not discussed here, ensure that people with disabilities have full access to public and private services and facilities.

The ADA has a very specific definition of a current “disability.” A physical or mental impairment meets the ADA’s definition of a current “disability” if it would, when left untreated, “substantially limit” one or more “major life activities.” Major life activities include, for example, seeing, reaching, communicating, speaking concentrating, or the operation of major bodily functions, such as brain or neurological functions. (There are two other definitions of “disability” that are not the subject of this discussion. For more information on the definition of “disability” under the ADA, see EEOC’s Questions and Answers on the ADA Amendments Act.

My Thoughts: I am not sure why the focus is on “current disability.” The ADA prongs are: actual disability, record of disability, and regarded as having a disability. You could have a disability under the ADA if it is not current if you have a record of a disability or you are regarded as having a disability. Certainly, an actual disability needs to be current, but that isn’t how this document is explaining things.

A condition does not need to be permanent or severe, or cause a high degree of functional limitation, to be “substantially limiting.” It may qualify as substantially limiting, for example, by making activities more difficult, painful, or time-consuming to perform as compared to the way that most people perform them. In addition, if the symptoms of the condition come and go, the condition still will qualify as a disability if it substantially limits a major life activity when active. Many common and ordinary medical conditions will qualify.

My Thoughts: interesting that the EEOC refers to “painful.” See this blog entry as to why I found that interesting.

 

  1. How could an employer’s use of algorithmic decision-making tools violate the ADA?

The most common ways that an employer’s use of algorithmic decision-making tools could violate the ADA are:

  • The employer does not provide a “reasonable accommodation” that is necessary for a job applicant or employee to be rated fairly and accurately by the algorithm. (See Questions 4–7 below.)
  • The employer relies on an algorithmic decision-making tool that intentionally or unintentionally “screens out” an individual with a disability, even though that individual is able to do the job with a reasonable accommodation. “Screen out” occurs when a disability prevents a job applicant or employee from meeting—or lowers their performance on—a selection criterion, and the applicant or employee loses a job opportunity as a result. A disability could have this effect by, for example, reducing the accuracy of the assessment, creating special circumstances that have not been taken into account, or preventing the individual from participating in the assessment altogether. (See Questions 8–12 below.)
  • The employer adopts an algorithmic decision-making tool for use with its job applicants or employees that violates the ADA’s restrictions on disability-related inquiries and medical examinations. (See Question 13 below.)

An employer’s use of an algorithmic decision-making tool may be unlawful for one of the above reasons, or for several such reasons.

My Thoughts: for those in the disability rights field and aware of how AI is used in the hiring process, the first thing that immediately comes to mind is screen out. This particular section of the document lets you know that there may be other issues as well, such as the disability related inquiries and medical examinations scheme, which we discussed here among other places.

  1. Is an employer responsible under the ADA for its use of algorithmic decision-making tools even if the tools are designed or administered by another entity, such as a software vendor?

In many cases, yes. For example, if an employer administers a pre-employment test, it may be responsible for ADA discrimination if the test discriminates against individuals with disabilities, even if the test was developed by an outside vendor. In addition, employers may be held responsible for the actions of their agents, which may include entities such as software vendors, if the employer has given them authority to act on the employer’s behalf.

My Thoughts:

  1. As we discussed here, the ADA is a nondelegable duty. Accordingly, indemnification agreements may be problematic. However, an employer may strongly wish to consider a reimbursement agreement with the AI vendor.
  2. Don’t forget about 29 C.F.R. §1630.6, which provides: “It is unlawful for a covered entity to participate in a contractual or other arrangement or relationship that has the effect of subjecting the covered entity‘s own qualified applicant or employee with a disability to the discrimination prohibited by this part.”

Algorithmic Decision-Making Tools and Reasonable Accommodation

  1. What is a reasonable accommodation?

A reasonable accommodation is a change in the way things are done that helps a job applicant or employee with a disability apply for a job, do a job, or enjoy equal benefits and privileges of employment. Examples of reasonable accommodations may include specialized equipment, alternative tests or testing formats, permission to work in a quiet setting, and exceptions to workplace policies. These are just examples—almost any change can be a reasonable accommodation—although an employer never has to lower production or performance standards or eliminate an essential job function as a reasonable accommodation.

My Thoughts:

  1. I like to think of reasonable accommodations as anything that gets the person with a disability to the same starting line as a person without a disability. Once you have that, it is then up to the person with the disability demonstrate what they can do.
  2. It is a good idea to keep the essential functions of the job in your job descriptions current.

 

5. May an employer announce generally (or use software that announces generally) that reasonable accommodations are available to job applicants and employees who are asked to use or be evaluated by an algorithmic decision-making tool, and invite them to request reasonable accommodations when needed?

Yes. An employer may tell applicants or employees what steps an evaluation process includes and may ask them whether they will need reasonable accommodations to complete it. For example, if a hiring process includes a video interview, the employer or software vendor may tell applicants that the job application process will involve a video interview and provide a way to request a reasonable accommodation. Doing so is a “promising practice” to avoid violating the ADA.

My Thoughts: I am not sure that this is a common practice as of this moment. The problem that is likely to be run into is a debate over whether the reasonable accommodation requested would fundamentally alter the nature of the AI. However, that isn’t the end of the story because the very nature of the AI may be screening out people with disabilities. So, there is a tension between the utility of the AI altogether and the screen out prohibitions of the ADA.

  1. When an employer uses algorithmic decision-making tools to assess job applicants or employees, does the ADA require the employer to provide reasonable accommodations?

If an applicant or employee tells the employer that a medical condition may make it difficult to take a test, or that it may cause an assessment result that is less acceptable to the employer, the applicant or employee has requested a reasonable accommodation. To request an accommodation, it is not necessary to mention the ADA or use the phrase “reasonable accommodation.”

My thoughts:

  1. “Medical condition,” is an interesting turn of phrase as the ADA uses the term, “physical or mental impairment.” I suppose a physical or mental impairment is a “medical condition,” but that isn’t the statutory language.
  2. Magic words, as we have discussed numerous times, such as here, are not required for seeking a reasonable accommodation.

Under the ADA, employers need to respond promptly to requests for reasonable accommodation.

 

If it is not obvious or already known whether the requesting applicant or employee has an ADA disability and needs a reasonable accommodation because of it, the employer may request supporting medical documentation.

 

My Thoughts:

  1. You don’t have an automatic right to request medical documentation. That right exist if it is not obvious or already known whether the requesting applicant or employee has an ADA disability. That said, “obvious,” and “already known,” can be very elastic terms.
  2. Keep any request for medical documentation reasonable and narrowly focused to the situation at hand.
  3. I never like people referring to “undue hardship,” as involving significant difficulty or expense because there is a lot more to it than just that statement. For example, the concept of undue hardship includes both logistical undue hardship as well as financial undue hardship. Logistical undue hardship is akin to the title II and title III concept of fundamental alteration, which basically requires your business being turned upside down. Financial undue hardship means looking to the entire resources of the entity.

 

When the documentation shows that a disability might make a test more difficult to take or that it might reduce the accuracy of an assessment, the employer must provide an alternative testing format or a more accurate assessment of the applicant’s or employee’s skills as a reasonable accommodation, unless doing so would involve significant difficulty or expense (also called “undue hardship”).

For example, a job applicant who has limited manual dexterity because of a disability may report that they would have difficulty taking a knowledge test that requires the use of a keyboard, trackpad, or other manual input device. Especially if the responses are timed, this kind of test will not accurately measure this particular applicant’s knowledge. In this situation, the employer would need to provide an accessible version of the test (for example, one in which the applicant is able to provide responses orally, rather than manually) as a reasonable accommodation, unless doing so would cause undue hardship. If it is not possible to make the test accessible, the ADA requires the employer to consider providing an alternative test of the applicant’s knowledge as a reasonable accommodation, barring undue hardship.

Other examples of reasonable accommodations that may be effective for some individuals with disabilities include extended time or an alternative version of the test, including one that is compatible with accessible technology (like a screen-reader) if the applicant or employee uses such technology. Employers must give individuals receiving reasonable accommodation equal consideration with other applicants or employees not receiving reasonable accommodations.

The ADA requires employers to keep all medical information obtained in connection with a request for reasonable accommodation confidential and must store all such information separately from the applicant’s or employee’s personnel file.

My Thoughts: the confidentiality requirements of all medical information is an easy one to forget about. Don’t do that.

  1. Is an employer responsible for providing reasonable accommodations related to the use of algorithmic decision-making tools, even if the software or application is developed or administered by another entity?

In many cases, yes. As explained in Question 3 above, an employer may be held responsible for the actions of other entities, such as software vendors, that the employer has authorized to act on its behalf. For example, if an employer were to contract with a software vendor to administer and score on its behalf a pre-employment test, the employer likely would be held responsible for actions that the vendor performed—or did not perform—on its behalf. Thus, if an applicant were to tell the vendor that a medical condition was making it difficult to take the test (which qualifies as a request for reasonable accommodation), and the vendor did not provide an accommodation that was required under the ADA, the employer likely would be responsible even if it was unaware that the applicant reported a problem to the vendor.

My Thoughts: this is a very respondeat superior type approach. Don’t forget about 29 C.F.R. §1630.6, which makes it clear that an employer cannot discriminate against employees or prospective applicants by way of contracting.

Algorithmic Decision-Making Tools That Screen Out Qualified Individuals with Disabilities

  1. When is an individual “screened out” because of a disability, and when is screen out potentially unlawful?

Screen out occurs when a disability prevents a job applicant or employee from meeting—or lowers their performance on—a selection criterion, and the applicant or employee loses a job opportunity as a result. The ADA says that screen out is unlawful if the individual who is screened out is able to perform the essential functions of the job with a reasonable accommodation if one is legally required.[1]  Questions 9 and 10 explain the meaning of “screen out” and Question 11 provides examples of when a person who is screened out due to a disability nevertheless can do the job with a reasonable accommodation.

My Thoughts: this is an easy to understand meaning of the term, “screen out.”

  1. Could algorithmic decision-making tools screen out an individual because of a disability? What are some examples?

Yes, an algorithmic decision-making tool could screen out an individual because of a disability if the disability causes that individual to receive a lower score or an assessment result that is less acceptable to the employer, and the individual loses a job opportunity as a result.

My Thoughts: proving up that a person with a disability got a lower score on an AI assessment is probably not all that difficult. However, the EEOC makes it clear that you also have to show that the individual lost a job opportunity as a result of that, which would be much harder to show.

An example of screen out might involve a chatbot, which is software designed to engage in communications online and through texts and emails. A chatbot might be programmed with a simple algorithm that rejects all applicants who, during the course of their “conversation” with the chatbot, indicate that they have significant gaps in their employment history. If a particular applicant had a gap in employment, and if the gap had been caused by a disability (for example, if the individual needed to stop working to undergo treatment), then the chatbot may function to screen out that person because of the disability.

My Thoughts: many labor and employment management side attorneys are saying now in their blogs and on social media that using gaps in employment as a negative factor for an applicant is just a really bad idea, especially with what has happened during the Covid-19 pandemic.

Another kind of screen out may occur if a person’s disability prevents the algorithmic decision-making tool from measuring what it is intended to measure. For example, video interviewing software that analyzes applicants’ speech patterns in order to reach conclusions about their ability to solve problems is not likely to score an applicant fairly if the applicant has a speech impediment that causes significant differences in speech patterns. If such an applicant is rejected because the applicant’s speech impediment resulted in a low or unacceptable rating, the applicant may effectively have been screened out because of the speech impediment.

My Thoughts: AI that uses speech patterns to reach conclusions about prospective candidates abilities is terribly problematic for persons with disabilities. For example, I have a slight deaf accent. That accent is imperceptible to most hearing people unless they have worked with deaf individuals or have a background in speech therapy. Nevertheless, voice dictation technology, which I have used for years due to joint issues, is a lot harder for me to use because of that accent. Voice dictation simply takes a lot longer to get used to my accent than it does for hearing people. Also, keep in mind that many disabilities have speech impediment that are associated with it. Finally, a culturally deaf individual quite often doesn’t use their voice at all. In short, if an AI tool is using speech patterns to influence the results, they would do well to eliminate that altogether because too many people with disabilities have speech patterns that are not typical.

  1. Some algorithmic decision-making tools may say that they are “bias-free.” If a particular tool makes this claim, does that mean that the tool will not screen out individuals with disabilities?

When employers (or entities acting on their behalf such as software vendors) say that they have designed an algorithmic decision-making tool to be “bias-free,” it typically means that they have taken steps to prevent a type of discrimination known as “adverse impact” or “disparate impact” discrimination under Title VII, based on race, sex, national origin, color, or religion. This type of Title VII discrimination involves an employment policy or practice that has a disproportionately negative effect on a group of individuals who share one of these characteristics, like a particular race or sex.[2]

To reduce the chances that the use of an algorithmic decision-making tool results in disparate impact discrimination on bases like race and sex, employers and vendors sometimes use the tool to assess subjects in different demographic groups, and then compare the average results for each group. If the average results for one demographic group are less favorable than those of another (for example, if the average results for individuals of a particular race are less favorable than the average results for individuals of a different race), the tool may be modified to reduce or eliminate the difference.

The steps taken to avoid that kind of Title VII discrimination are typically distinct from the steps needed to address the problem of disability bias.[3] If an employer or vendor were to try to reduce disability bias in the way described above, doing so would not mean that the algorithmic decision-making tool could never screen out an individual with a disability. Each disability is unique. An individual may fare poorly on an assessment because of a disability, and be screened out as a result, regardless of how well other individuals with disabilities fare on the assessment. Therefore, to avoid screen out, employers may need to take different steps beyond the steps taken to address other forms of discrimination.  (See Question 12.)

My Thoughts: the very last ¶ of question 10, should be a very big cautionary note for the use of AI in hiring.

  1. Screen out because of a disability is unlawful if the individual who is screened out is able to perform the essential functions of the job, with a reasonable accommodation if one is legally required. If an individual is screened out by an algorithmic decision-making tool, is it still possible that the individual is able to perform the essential functions of the job?

In some cases, yes. For example, some employers rely on “gamified” tests, which use video games to measure abilities, personality traits, and other qualities, to assess applicants and employees. If a business requires a 90 percent score on a gamified assessment of memory, an applicant who is blind and therefore cannot play these particular games would not be able to score 90 percent on the assessment and would be rejected. But the applicant still might have a very good memory and be perfectly able to perform the essential functions of a job that requires a good memory.

Even an algorithmic decision-making tool that has been “validated” for some purposes might screen out an individual who is able to perform well on the job. To say that a decision-making tool has been “validated”[4] means that there is evidence meeting certain professional standards showing that the tool accurately measures or predicts a trait or characteristic that is important for a specific job. Algorithmic decision-making tools may be validated in this sense, and still be inaccurate when applied to particular individuals with disabilities. For example, the gamified assessment of memory may be validated because it has been shown to be an accurate measure of memory for most people in the general population, yet still screen out particular individuals who have good memories but are blind, and who therefore cannot see the computer screen to play the games.

An algorithmic decision-making tool also may sometimes screen out individuals with disabilities who could do the job because the tool does not take into account the possibility that such individuals are entitled to reasonable accommodations on the job. Algorithmic decision-making tools are often designed to predict whether applicants can do a job under typical working conditions. But people with disabilities do not always work under typical conditions if they are entitled to on-the-job reasonable accommodations.

My Thoughts: the question is whether a person can perform the essential functions of the job with it without reasonable accommodations. If the AI tool is only measuring how a person can perform the essential functions of the job without reasonable accommodations, that tool has a problem.

For example, some pre-employment personality tests are designed to look for candidates who are similar to the employer’s most successful employees—employees who most likely work under conditions that are typical for that employer.

My Thoughts: for what can happen when an employer uses personality tests to evaluate whether a person can do the essential functions of the job or to evaluate whether a person should be promoted, see Karraker v. Rent-A-Car Center, Inc., 411 F.3d 831 (7th Cir. 2005).

 

Someone who has Posttraumatic Stress Disorder (“PTSD”) might be rated poorly by one of these tests if the test measures a trait that may be affected by that particular individual’s PTSD, such as the ability to ignore distractions. Even if the test is generally valid and accurately predicts that this individual would have difficulty handling distractions under typical working conditions, it might not accurately predict whether the individual still would experience those same difficulties under modified working conditions—specifically, conditions in which the employer provides required on-the-job reasonable accommodations such as a quiet workstation or permission to use noise-cancelling headphones. If such a person were to apply for the job and be screened out because of a low score on the distraction test, the screen out may be unlawful under the ADA. Some individuals who may test poorly in certain areas due to a medical condition may not even need a reasonable accommodation to perform a job successfully.

My Thoughts: is it the disability that is being accommodated or is it the essential functions of the job that are being accommodated? You get two different places depending upon which if the question. For a discussion of this issue, see this blog entry.

  1. What could an employer do to reduce the chances that algorithmic decision-making tools will screen out someone because of a disability, even though that individual is able to perform the essential functions of the job (with a reasonable accommodation if one is legally required)?

First, if an employer is deciding whether to rely on an algorithmic decision-making tool developed by a software vendor, it may want to ask the vendor whether the tool was developed with individuals with disabilities in mind. Some possible inquiries about the development of the tool that an employer might consider include, but are not limited to:

  • If the tool requires applicants or employees to engage a user interface, did the vendor make the interface accessible to as many individuals with disabilities as possible?

My Thoughts: it is not a legal defense to my mind to say that the interface is accessible with many individuals with disabilities but not to a particular employee or applicant with the disability. Remember, the ADA requires an individualized analysis in every case.

  • Are the materials presented to job applicants or employees in alternative formats? If so, which formats? Are there any kinds of disabilities for which the vendor will not be able to provide accessible formats, in which case the employer may have to provide them (absent undue hardship)?

My Thoughts: don’t forget about 29 C.F.R. §1630.6.

  • Did the vendor attempt to determine whether use of the algorithm disadvantages individuals with disabilities? For example, did the vendor determine whether any of the traits or characteristics that are measured by the tool are correlated with certain disabilities?

My Thoughts: this should be a mandatory item on any AI vendor checklist.

If an employer is developing its own algorithmic decision-making tool, it could reduce the chances of unintentional screen out by taking the same considerations into account during its development process. Depending on the type of tool in question, reliance on experts on various types of disabilities throughout the development process may be effective. For example, if an employer is developing pre-employment tests that measure personality, cognitive, or neurocognitive traits, it may be helpful to employ psychologists, including neurocognitive psychologists, throughout the development process in order to spot ways in which the test may screen out people with autism or cognitive, intellectual, or mental health-related disabilities.

My Thoughts:

  1. You want to make sure that such individuals are not practitioners of ableism. That is, do they believe as persons without disabilities that they know what is best for persons with disabilities. The focus should be on whether the person with the disability can do the essential functions of the job with or without reasonable accommodations.
  2. Beta testing utilizing persons with disabilities is always a good idea for any AI tool.

 

Second, regardless of whether the employer or another entity is developing an algorithmic decision-making tool, the employer may be able to take additional steps during implementation and deployment to reduce the chances that the tool will screen out someone because of a disability, either intentionally or unintentionally. Such steps include:

  • clearly indicating that reasonable accommodations, including alternative formats and alternative tests, are available to people with disabilities;
  • providing clear instructions for requesting reasonable accommodations; and
  • in advance of the assessment, providing all job applicants and employees who are undergoing assessment by the algorithmic decision-making tool with as much information about the tool as possible, including information about which traits or characteristics the tool is designed to measure, the methods by which those traits or characteristics are to be measured, and the disabilities, if any, that might potentially lower the assessment results or cause screen out.

My Thoughts: the final bullet in this section is very interesting because of the proprietary information involved. One wonders what kind of resistance the AI company will put up with respect to this bullet. It seems to me there would be an argument that proprietary information is involved. Even so, I am not sure that approach will work in the face of a lawsuit alleging screen out as this information would certainly be related to whether screen out is occurring.

Taking these steps will provide individuals with disabilities an opportunity to decide whether a reasonable accommodation may be necessary. For example, suppose that an employer uses an algorithm to evaluate its employees’ productivity, and the algorithm takes into account the employee’s average number of keystrokes per minute. If the employer does not inform its employees that it is using this algorithm, an employee who is blind or has a visual impairment and who uses voice recognition software instead of a keyboard may be rated poorly and lose out on a promotion or other job opportunity as a result. If the employer informs its employees that they will be assessed partly on the basis of keyboard usage, however, that same employee would know to request an alternative means of measuring productivity—perhaps one that takes into account the use of voice recognition software rather than keystrokes—as a reasonable accommodation.

My Thoughts: I am delighted to see that voice recognition software is specifically mentioned in this document because voice recognition software often gets lost in favor of screen readers. They both work on coding technology, but the results aren’t always the same. So, you need to evaluate for screen reading capabilities and separately for voice dictation capabilities.

Another way for employers to avoid ADA discrimination when using algorithmic decision-making tools is to try to ensure that no one is screened out unless they are unable to do the job, even when provided with reasonable accommodations. A promising practice is to only develop and select tools that measure abilities or qualifications that are truly necessary for the job—even for people who are entitled to an on-the-job reasonable accommodation. For example, an employer who is hiring cashiers might want to ensure that the chatbot software it is using does not reject applicants who are unable to stand for long periods. Otherwise, a chatbot might reject an applicant who uses a wheelchair and may be entitled to a lowered cash register as a reasonable accommodation.

My Thoughts:

  1. This is excellent advice. That is, AI should not screen out anyone unless they are unable to do the job with or without reasonable accommodations.
  2. Same question as earlier. That is, is it the disability being accommodated or the essential functions of the job?

As a further measure, employers may wish to avoid using algorithmic decision-making tools that do not directly measure necessary abilities and qualifications for performing a job, but instead make inferences about those abilities and qualifications based on characteristics that are correlated with them. For example, if an open position requires the ability to write reports, the employer may wish to avoid algorithmic decision-making tools that rate this ability by measuring the similarity between an applicant’s personality and the typical personality for currently successful report writers. By doing so, the employer lessens the likelihood of rejecting someone who is good at writing reports, but whose personality, because of a disability, is uncommon among successful report writers.

My Thoughts: as a preventive law matter, I would definitely avoid using logarithmic decision-making tools that do not directly measure necessary abilities and qualifications for performing a job, but instead make inferences about those abilities and qualification based on characteristics correlated with them. It is just a bad idea. It also leads ableism interfering with employment decisions.

Algorithmic Decision-Making Tools and Disability-Related Inquiries and Medical Examinations

  1. How could an employer’s use of algorithmic decision-making tools violate ADA restrictions on disability-related inquiries and medical examinations?

An employer might violate the ADA if it uses an algorithmic decision-making tool that poses “disability-related inquiries” or seeks information that qualifies as a “medical examination” before giving the candidate a conditional offer of employment.[5] This type of violation may occur even if the individual does not have a disability.

My Thoughts:

  1. For a discussion of the medical exam/disability related inquiries scheme, see this blog entry.
  2. You do not have to be a person with a disability to benefit from violations of the disability related and medical examination scheme.

An assessment includes “disability-related inquiries” if it asks job applicants or employees questions that are likely to elicit information about a disability or directly asks whether an applicant or employee is an individual with disability.

My Thoughts: no argument from me.

 

It qualifies as a “medical examination” if it seeks information about an individual’s physical or mental impairments or health.

My thoughts: this is an oversimplification. See this blog entry for example.

An algorithmic decision-making tool that could be used to identify an applicant’s medical conditions would violate these restrictions if it were administered prior to a conditional offer of employment. Not all algorithmic decision-making tools that ask for health-related information are “disability-related inquiries or medical examinations,” however. For example, a personality test is not posing “disability-related inquiries” because it asks whether the individual is “described by friends as being ‘generally optimistic,’” even if being described by friends as generally optimistic might somehow be related to some kinds of mental health diagnoses.

My Thoughts: but see Karraker.

Note, however, that even if a request for health-related information does not violate the ADA’s restrictions on disability-related inquiries and medical examinations, it still might violate other parts of the ADA. For example, if a personality test asks questions about optimism, and if someone with Major Depressive Disorder (“MDD”) answers those questions negatively and loses an employment opportunity as a result, the test may “screen out” the applicant because of MDD. As explained in Questions 8–11 above, such screen out may be unlawful if the individual who is screened out can perform the essential functions of the job, with or without reasonable accommodation.

My Thoughts: see Karraker.

Once employment has begun, disability-related inquiries may be made and medical examinations may be required only if they are legally justified under the ADA.

For more information on disability-related inquiries and medical examinations, see Pre-Employment Inquiries and Medical Questions & Examinations, and Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees under the ADA.

Promising Practices for Employers

  1. What can employers do to comply with the ADA when using algorithmic decision-making tools?
  • As discussed in Questions 4–7 above, employers must provide reasonable accommodations when legally required. Promising practices that may help employers to meet this requirement include:
    • Training staff to recognize and process requests for reasonable accommodation as quickly as possible, including requests to retake a test in an alternative format, or to be assessed in an alternative way, after the individual has already received poor results.
    • Training staff to develop or obtain alternative means of rating job applicants and employees when the current evaluation process is inaccessible or otherwise unfairly disadvantages someone who has requested a reasonable accommodation because of a disability.

My thoughts: regular training by competent and knowledgeable individuals is always a good idea.

    • If the algorithmic decision-making tool is administered by an entity with authority to act on the employer’s behalf, such as a testing company, asking the entity to forward all requests for accommodation promptly to be processed by the employer in accordance with ADA requirements. Alternatively, the employer could seek to enter into an agreement with the third party requiring it to provide reasonable accommodations on the employer’s behalf, in accordance with the employer’s obligations under the ADA.

My Thoughts: don’t forget about 29 C.F.R. §1630.6.

 

  • Employers should minimize the chances that algorithmic decision-making tools will disadvantage individuals with disabilities, either intentionally or unintentionally. Promising practices include:
    • Using algorithmic decision-making tools that have been designed to be accessible to individuals with as many different kinds of disabilities as possible, thereby minimizing the chances that individuals with different kinds of disabilities will be unfairly disadvantaged in the assessments. User testing is a promising practice.

My Thoughts: don’t forget that the ADA is an individualized analysis with no exceptions

    • Informing all job applicants and employees who are being rated that reasonable accommodations are available for individuals with disabilities, and providing clear and accessible instructions for requesting such accommodations.

My thoughts: always a good idea.

    • Describing, in plain language and in accessible formats, the traits that the algorithm is designed to assess, the method by which those traits are assessed, and the variables or factors that may affect the rating.

My Thoughts: I am a big believer in plain language. The rest of this particular paragraph sets up the tension between proprietary information and proving up a screen out claim.

  • Employers may also seek to minimize the chances that algorithmic decision-making tools will assign poor ratings to individuals who are able to perform the essential functions of the job, with a reasonable accommodation if one is legally required. Promising practices include:
    • Ensuring that the algorithmic decision-making tools only measure abilities or qualifications that are truly necessary for the job—even for people who are entitled to an on-the-job reasonable accommodation.
    • Ensuring that necessary abilities or qualifications are measured directly, rather than by way of characteristics or scores that are correlated with those abilities or qualifications.

My Thoughts: both of the bullets immediately above are excellent preventive law approaches.

  • Before purchasing an algorithmic decision-making tool, an employer should ask the vendor to confirm that the tool does not ask job applicants or employees questions that are likely to elicit information about a disability or seek information about an individual’s physical or mental impairments or health, unless such inquiries are related to a request for reasonable accommodation. (The ADA permits an employer to request reasonable medical documentation in support of a request for reasonable accommodation that is received prior to a conditional offer of employment, when necessary, if the requested accommodation is needed to help the individual complete the job application process.)

My thoughts: this assumes that the disability is not obvious or known, which as mentioned before are elastic terms.

Promising Practices for Job Applicants and Employees Who Are Being Assessed by Algorithmic Decision-Making Tools

  1. What should I do to ensure that I am being assessed fairly by algorithmic decision-making tools?

If you have a medical condition that you think might qualify as an ADA disability and that could negatively affect the results of an evaluation performed by algorithmic decision-making tools, you may want to begin by asking for details about the employer’s use of such tools to determine if it might pose any problems related to your disability.

 

My Thoughts: it will be interesting to see how receptive the AI vendor is to this approach because of the worry about disclosing proprietary information. Vendors and employers want to be careful about retaliating against any individual that seeks this information, especially since the EEOC is suggesting that the information should be sought out in the first place.

 

If so, you may want to ask for a reasonable accommodation that allows you to compete on equal footing with other applicants or employees.

For example, if an employer’s hiring process includes a test, you may wish to ask for an accessible format or an alternative test that measures your ability to do the job in a way that is not affected by your disability. To request a reasonable accommodation, you need to notify an employer representative or official (for example, someone in Human Resources) or, if the employer is contracting with a software vendor, the vendor’s representative or the employer, that you have a medical condition, and that you need something changed because of the medical condition to ensure that your abilities are evaluated accurately.

Note that if your disability and need for accommodation are not obvious or already known, you may be asked to submit some medical documentation in support of your request for accommodation.

 

My Thoughts: keep any request for medical documentation reasonable and narrowly focused.

 

To find out more about asking for reasonable accommodations, see Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the ADA, available at https://www.eeoc.gov/laws/guidance/enforcement-guidance-reasonable-accommodation-and-undue-hardship-under-ada.

If you only discover that an algorithmic decision-making tool poses a problem due to your disability after the evaluation process is underway, you should notify the employer or software vendor as soon as you are aware of the problem and ask to be evaluated in a way that accurately reflects your ability to do the job, with a reasonable accommodation if one is legally required.

If you have already received a poor rating generated by an employer’s use of an algorithmic decision-making tool, you should think about whether your health condition might have prevented you from achieving a higher rating. For example, might a disability have negatively affected the results of an assessment, or made it impossible for you to complete an assessment? If so, you could contact the employer or software vendor immediately, explain the disability-related problem, and ask to be reassessed using a different format or test, or to explain how you could perform at a high level despite your performance on the test.

  1. What do I do if I think my rights have been violated?

If you believe that your employment-related ADA rights may have been violated, the EEOC can help you decide what to do next. For example, if the employer or software vendor refuses to consider your request for a reasonable accommodation to take or re-take a test, and if you think that you would be able to do the job with a reasonable accommodation, you might consider filing a charge of discrimination with the EEOC. A discrimination charge is an applicant’s or employee’s statement alleging that an employer engaged in employment discrimination and asking the EEOC to help find a remedy under the EEO laws.

If you file a charge of discrimination, the EEOC will conduct an investigation. Mediation, which is an informal and confidential way for people to resolve disputes with the help of a neutral mediator, may also be available. Because you must file an EEOC charge within 180 days of the alleged violation in order to take further legal action (or 300 days if the employer is also covered by a state or local employment discrimination law), it is best to begin the process early. It is unlawful for an employer to retaliate against you for contacting the EEOC or filing a charge.

If you would like to begin the process of filing a charge, go to our Online Public Portal at https://publicportal.eeoc.gov, visit your local EEOC office (see https://www.eeoc.gov/field-office for contact information), or contact us by phone at 1-800-669-4000 (voice), 1-800-669-6820 (TTY), or 1-844-234-5122 (ASL Video Phone).

For general information, visit the EEOC’s website (https://www.eeoc.gov).

This information is not new policy; rather, this document applies principles already established in the ADA’s statutory and regulatory provisions as well as previously issued guidance. The contents of this publication do not have the force and effect of law and are not meant to bind the public in any way. This publication is intended only to provide clarity to the public regarding existing requirements under the law. As with any charge of discrimination filed with the EEOC, the Commission will evaluate alleged ADA violations involving the use of software, algorithms, and artificial intelligence based on all of the facts and circumstances of the particular matter and applicable legal principles.

[1] To establish a screen out claim, the individual alleging discrimination must show that the challenged selection criterion screens out or tends to screen out an individual with a disability or a class of individuals with disabilities. See 42 U.S.C. § 12112(b)(6); 29 C.F.R. § 1630.10(a). To establish a defense, the employer must demonstrate that the challenged application of the criterion is “job related and consistent with business necessity,” as that term is understood under the ADA, and that “such performance cannot be accomplished by reasonable accommodation.” 42 U.S.C. §§ 12112(b)(6), 12113(a); 29 C.F.R. §§ 1630.10(a), 1630.15(b); 29 C.F.R. pt. 1630 app. §§ 1630.10, 1630.15 (b) and (c). A different defense to a claim that a selection criterion screens out or tends to screen out an individual with a disability or a class of individuals with disabilities is available when the challenged selection criterion is safety-based. See 2 U.S.C. § 12113(b); 29 C.F.R. § 1630.15(b)(2).

My Thoughts:

  1. These concepts blur into each other making it really complicated to figure out the burden of proof. What the EEOC is saying is that the person with the disability has two allege that the criterion screens out or tend to screen out individuals with disabilities or class of individuals with disabilities. Then, the employer has to demonstrate that the challenged application of the criterion is job-related and consistent with business necessity as the terms are understood by the ADA and that such performance cannot be accomplished by reasonable accommodations. For what is job-related and business necessity, see this blog entry for example.
  2. “Safety-based,” can be so vague as to run a semi-truck through it. That is certainly what the PHP industry is trying to do to circumvent the requirements of the ADA. If safety-based is the claim, plaintiff’s attorneys need to thoroughly analyze such claims so as to keep them in check.

[2] 42 U.S.C. § 2000e-2(a)(2), (k).

[3] When applying the tool to current employees or other subjects, there will generally be no way to know who has a disability and who does not.

[4] When employers or vendors claims that a tool designed to help employers decide which job applicants to hire has been “validated,” or that such a tool is a “valid predictor” of job performance, they may mean that there is evidence that the tool measures a trait or characteristic that is important for the job, and that the evidence meets the standards articulated in the Uniform Guidelines on Employee Selection Procedures (“UGESP”), 29 C.F.R. §§ 1607.5–9. UGESP articulates standards for compliance with certain requirements under Title VII. UGESP does not apply to disability discrimination. 29 C.F.R. pt. 1630 app. § 1630.10 (a) (“The Uniform Guidelines on Employee Selection Procedures . . .  do not apply to the Rehabilitation Act and are similarly inapplicable to this part.”).

[5] Note, however, that the ADA permits employers to request reasonable medical documentation in support of a request for reasonable accommodation, when necessary. This may be done prior to a conditional offer of employment if the request is for a reasonable accommodation that is needed to help the individual complete the job application process.

My daughter completed her classroom component for high school this week and now is just waiting to graduate, so my schedule has been a bit all over the place. Hence, I am getting this blog entry up later in the week than I usually do.

 

This week’s blog entry is already making the rounds among some labor and employment law bloggers. So, I figured I could offer my own perspective on it. The case, Shields v. Credit One Bank, N. A. , a published decision from the Ninth Circuit decided on May 6, 2022, discusses just when is a temporary disability an actual disability under the ADA as amended. Reading this case and reading the law review article by Prof. Cheryl L. Anderson discussing transitory and minor in the regarded as exception, the article, here, has caused me to reconsider my approach that it was great preventive law to figure out whether a disability was transitory and minor with respect to a temporary disability fitting into the actual disability prong. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning that an impairment need not be permanent or have long-term effects before it can be considered a disability under the ADA as amended; court’s reasoning that Shields adequately alleged she had a disability under the ADA as amended; and thought/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts (taken from opinion with minor edits)

 

In November 2017, Shields began working in the Human Resources (“HR”) Department of Defendant Credit One Bank, N.A. (“Credit One”) in Las Vegas, Nevada. Her formal job title was “HR Generalist I,” and the official job description for that position listed a variety of basic “physical requirements” that “must be met by an employee to successfully perform the essential functions of this job.” These requirements included the ability to “use hands to finger, handle, [and] feel,” to “reach with hands and arms,” and, occasionally, to “lift and/or move up to 2 pounds.” The job description also stated, however, that “[r]easonable accommodations may be made to enable individuals with disabilities to perform the essential functions” of the job.

 

After a concern arose in January 2018 that Shields might have bone cancer, she was scheduled for a bone biopsy surgery, which took place on April 20, 2018. The biopsy surgery was a significant procedure that required a three-day hospitalization. In order to obtain the necessary tissue samples from Shields’s right shoulder and arm, the surgeon made what the complaint described as a “10 centimeter skin incision” and created a window “into the bone measuring one centimeter in width by two centimeters in length.” Subsequent testing of the samples revealed that “everything was benign” and that Shields did not have cancer after all.

 

Nonetheless, given the substantial physical impact of the biopsy surgery itself, Shields was unable to return to work for several months. Specifically, her postsurgical injuries prevented her from, inter alia, fully using her right arm, shoulder, and hand to lift, pull, push, type, write, tie her shoes, or use a hair dryer. In order to verify Shields’s SHIELDS V. CREDIT ONE BANK 5 inability to work, her surgeon, Dr. Hillock, completed a copy of Credit One’s standard “ADA Employee Accommodation Medical Certification Form.” In completing the form, Dr. Hillock stated that Shields would be unable to perform her essential job functions, with or without accommodation, for two months. In the portion of the form that asked him to identify the “major life activities” that “are substantially limited by the medical condition or accompanying treatment,” Dr. Hillock listed “sleeping, lifting, writing, pushing, pulling [and] manual tasks.” After submission of the form, Shields was approved for an unpaid, eight-week “medical leave of absence as an accommodation under the ADA.” The leave was unpaid rather than paid because Shields did not qualify for paid leave under the Family and Medical Leave Act.

 

Dr. Hillock initially estimated that Shields would be able to return to work on June 20, 2018. However, as that date approached, Shields still lacked full use of her right shoulder, arm, and hand. Accordingly, on June 18, 2018, Dr. Hillock prepared a note indicating that Shields was still unable to return to work. The relevant portion of the note stated, in its entirety: “Patient has an appointment on 7/10 at which point a return to work date will be discussed. Unable to work until appointment.”

 

Shortly after receiving Dr. Hillock’s note, the assistant vice president of Credit One’s HR Department called Shields and asked her to come into the office the next day. Shields asked “if she was being fired,” and the assistant vice president said that she was not and that they needed her to come in to discuss “her healthcare premium.” When Shields reported to the office, however, she was told that her position was being eliminated and that she was therefore being 6 SHIELDS V. CREDIT ONE BANK terminated. Her healthcare coverage was consequently terminated about a week later.

 

Shields filed a complaint with the Equal Employment Opportunity Commission (“EEOC”), and she received a “Notice of Right to Sue” on March 5, 2019. Specifically, the complaint alleges that, as a reasonable accommodation for her temporary disability arising from the biopsy surgery, Credit One “had a continuing duty under the ADA to extend Shields’[s] medical leave of absence” for the “short” additional period of time “until she was able to return to her job.” Instead, Shields alleged, Credit One unlawfully terminated her. Shields sought, inter alia, back pay, compensatory damages, punitive damages, and attorney’s fees.

 

The district court granted Credit One’s motion to dismiss the complaint under Rule 12(b)(6). The court concluded that, for two reasons, Shields had failed adequately to plead a disability within the meaning of the ADA. First, citing the 2010 version of the EEOC regulations defining disability, the court held that Shields had failed to plead facts showing “any permanent or long-term effects for her impairment” SHIELDS V. CREDIT ONE BANK 7 (emphasis added). Second, the court concluded that Shields failed to allege sufficient factual detail to “state a plausible impairment” during the requested extension of her medical leave of absence. The court entered judgment, and Shields filed a timely notice of appeal.

 

II

Court’s Reasoning That an Impairment Need Not Be Permanent or Have Long-Term Effects before It Can Be Considered a Disability under the ADA As Amended

 

  1. §106 of the ADA has long granted the EEOC authority to issue regulations carrying out title I of the ADA.
  2. In 2008, Congress enacted the ADAAA for the express purpose of rejecting the narrow understanding of substantially limits that had been adopted in several Supreme Court decisions. In particular, the ADAAA declares that one of its purposes is the rejection of Supreme Court holdings that the phrase substantially limits in the ADA’s definition of disability need to be interpreted strictly to create a demanding standard for qualifying as a person with a disability. The ADAAA also rejected the principle that to be substantially limiting an individual must have an impairment that prevents or severely restricts the individual from doing activities of central importance to most people’s daily lives.
  3. The ADAAA findings also expressly state that the current EEOC ADA regulations defining the term substantially limits as significantly restricted are inconsistent with congressional intent by using too high of a standard. The reference 2008 version of the EEOC regulations that the ADAAA expressly rejects as too restrictive are identical to the 2010 version of the regulations applied by the district court in this case.
  4. The ADAAA amended §3 of the ADA by adding several rules of construction together with language directing that the definition of disability shall be construed in accordance with those rules of construction.
  5. Those rules of construction include the principles that: 1) the definition of disability in the ADA must be construed in favor of broad coverage of individuals under the ADA to the maximum extent permitted by the terms of the ADA; 2) the term substantially limits must be interpreted consistently with the findings and purposes of the ADA as amended; and 3) an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.
  6. The ADAAA also directs the EEOC to revise the portion of its current regulation that defined the term substantially limits as significantly restricted to be consistent with the ADAAA, including the amendments made by the ADAAA.
  7. The ADAAA added a new provision giving the EEOC the right to issue regulations with respect to definitional terms in the ADA. The court notes in a footnote that prior to the addition of that language, the EEOC’s expressed regulatory authority extended only to issuing regulations to carry out title I of the ADA. However, the definitional terms are not in title I but in preliminary provisions proceeding it. So, the added language prevents any argument over the EEOC’s authority to issue regulations construing the ADA’s definitional terms.
  8. In 2011, the EEOC issued regulations, 29 C.F.R. §1630.2(j)(1)(ix), noting that the effects of an impairment lasting are expected to last fewer than six months can be substantially limiting.
  9. With respect to the regarded as prong, the ADAAA specifically states that the regarded as prong does not apply to impairment that are transitory and minor. A transitory impairment, per 42 U.S.C. §12102(3)(B), is an impairment with an actual or expected duration of six months or less.
  10. The fact that Congress added transitory and minor language only to the regarded as alternative and not to the actual disability and record of disability prongs strongly confirms that no such temporal limitation applies to the actual and record of disability prongs. After all, where Congress included particular language in one section of the statute but omits it in another section of the same statute, it is generally presumed that Congress acts intentionally and purposely in writing a statute that way.
  11. The EEOC’s regulation recognizes the statutory distinction by providing that the six months transitory and minor limitation applies only to the regarded as prong of the definition of disability and does not apply to the actual disability and record of disability prongs.
  12. The EEOC explanatory guidance accompanying §1630.2(j)(1)(ix), here, explains that although the duration of an impairment remains one factor relevant in determining whether the impairment substantially limits a major life activity, there is no categorical rule excluding short-term impairments, which may be covered if sufficiently severe.
  13. The ADA as amended and its implementing EEOC regulations make clear that the actual impairment prong of the definition of disability is not subject to any categorical temporal limitation and therefore, the district court erred in holding that such a temporal limitation existed.

 

III

Court’s Reasoning That Shields did Adequately Allege That She Had a Disability under the ADA as Amended

 

  1. In order to properly plead a disability, Shields had to allege, per 42 U.S.C. §12102(1)(A), that she had: 1) a physical or mental impairment; 2) that substantially limits; 3) one or more major life activities.
  2. Her complaint alleged that her bone biopsy surgery involved a 10 cm incision creating a window into the bone measuring 1 cm in width by 2 cm in length for purposes of harvesting tissue from her shoulder and arm. The substantial injuries inherent in such an intrusive surgery rendered her unable to fully use her right shoulder, arm and hand and unable to perform such tasks as lifting, pushing, and pulling things with her shoulder, arm and hand, typing on a computer keyboard or otherwise, handwriting, or even tying her shoes or lifting a hair dryer to dry her hair. Such allegations adequately allege that due to her biopsy surgery, Shields had a physical impairment, both in the ordinary sense of that term as well was in the sense described in the EEOC’s final implementing regulations.
  3. The allegation concerning Shields’s condition during the initial eight weeks are sufficiently well pleaded to give rise to a plausible inference that she had an impairment. Further, the complaint went even further when it alleged that her surgeon had concluded that her condition had not improved sufficiently by the end of those eight weeks to permit her to return to work.
  4. Iqbal simply did not require Shields to include more granular details about the exact nature of her then existing limitation that caused the surgeon to conclude that her injuries had not sufficiently healed.
  5. The activities that Shields pleaded that she was unable to perform qualify as major life activities under the ADA. In particular, the ADA expressly states that major life activities include but are not limited to: caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. 42 U.S.C. §12102(2)(A).
  6. The complaint specifically alleges that her post surgery injuries impeded her ability to lift, perform basic grooming tasks necessary to care for herself, and to perform manual task such as pushing or pulling. It also alleges that she was unable to perform some of the core physical tasks included in her job description, such as lifting, reaching, fingering, and handling, all of which indicates that her ability to work was implicated as well.
  7. As amended by the amendments to the ADA, the ADA expressly provides, 42 U.S.C. §12102(4)(E)(i), that the determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures, such as medication, medical supplies, or other aids.
  8. The ADA as amended further states, per 42 U.S.C. §12102(4)(C), that an impairment need only substantially limit one major life activity in order to give rise to a covered disability.
  9. The statute also provides that, as a general matter, the definition of disability is to be construed in favor of broad coverage of individuals under the ADA to the maximum extent permitted by the terms of the ADA.
  10. The definition of substantially limits in particular has to be interpreted consistently with the findings and purposes of the ADAAA, per 42 U.S.C. §12102(4)(B), which includes the principle that the question of whether an individual’s impairment as a disability under the ADA should not demand extensive analysis.
  11. The formal guidance accompanying the amended EEOC regulations specifically states that a temporary impairment impeding the performance of a major life activity and that last for several months is sufficiently severe to qualify as substantially limiting within the meaning of the ADA and the EEOC regulations.
  12. While the duration of an impairment remains one factor relevant to determining whether the impairment substantially limits a major life activity, Shields alleged impairment, which involved a substantial inability to perform certain major life tasks for more than two months, is clearly of sufficient duration and impact to qualify.

 

IV

Thoughts/Takeaways

 

  1. I have reconsidered the transitory and minor exception as a preventive law matter with respect to temporary disabilities for a couple of reasons. First, as Prof. Cheryl Anderson noted in her excellent law review article, which we mentioned previously here, courts are all over the place with respect to what is transitory and minor. Second, I find Shields persuasive that it is absolutely clear that transitory and minor does not apply to the actual and record of disability prongs. That said, the question does become what is “sufficiently severe,” to constitute a disability of temporary duration covered by the ADA as amended. Too that, I still believe it makes sense to go back to how the actual disability prong deals with substantial limitation. That is, if you have a disability that substantially limits a major life activity as set forth in the actual disability prong (substantially limited in a major life activity as compared to most people in the general population), then you most likely have a disability that is sufficiently severe to be covered under the actual disability prong. Think of it in terms of the extremely minor impairments, such as allergies or a cold as being excluded, with everything else on the table. Again, I refer you to Prof. Anderson’s excellent law review article. I would also be wary of getting into a numbers game as to how many days are sufficient (this court says two months is sufficient). Using a bit of common sense (if you have people with disabilities that can look at this situation for you as well, that could be really helpful), and correlating the situation to substantially limits as it works with respect to actual disabilities, should go a long way to anticipating most problems.
  2. The ADAAA gave the EEOC explicit authority to regulate definitional terms.
  3. While Iqbal does not require the inclusion of granular details about the exact nature of a plaintiff’s existing limitations causing a healthcare provider to conclude that injuries had not sufficiently healed, it is a good idea to include them in your complaint if you can.
  4. With the exception of eyeglasses, mitigating measures do not count when evaluating whether a person has a disability under the ADA as amended. That said, mitigating measures do factor into figuring out just what reasonable accommodations will work for a particular person with a disability.
  5. I am not aware of a split among the U.S. Circuit Court of Appeals with respect to the issues discussed in this case, and so one wonders about the likelihood of the Supreme Court taking this case. Certainly, the plaintiff will have no interest in taking this case to the Supreme Court.
  6. The EEOC may wish to consider amending its regulations and/or issuing further guidance to make clear just what it thinks “sufficiently severe,” means.
  7. Can you expect to see lots of litigation over what “sufficiently severe,” means? Maybe so.
  8. I am not a fan of using the word “shall,” when drafting contracts or statutes as the word is capable of seven different meanings. You can easily see the multiple meanings the word is capable of by just thinking about what happens when your child says they, “shall clean up their room.” Just when will that room be cleaned up? Never, soon, immediately, within a couple of hours, a week, etc.
  9. The decision is published.
  10. Interesting that the court mentioned that Shields also alleged sufficient facts to show that she was substantially limited in the major life activity of working. We have mentioned several times in our blog that plaintiffs attorney should stay away from alleging that major life activity whenever possible. Here, plaintiff’s attorney did allege a whole host of major life activities besides working, which they may or may not have even alleged in their complaint (I have not checked the complaint).
  11. A leave of absence when FMLA is either not in play or has been exhausted can most certainly be a reasonable accommodation.

Today’s blog entry deals with a case that got quite a bit of publicity from labor and employment attorneys on LinkedIn when it came out. I promised then that I would blog on it. So, here goes. The case of the day is Hopman v. Union Pacific Railroad out of the Western Division of the Eastern District of Arkansas and can be found here. The reason the case made such a splash when it came out is that the case talks about how being free from pain is not a privilege or benefit of employment. However, there is a lot more to this case than just that principle and it bears exploring further. As usual, the case can be divided into categories and they are: how did the case get to the judgment as a matter of law point; court’s reasoning that seeking to work without mental and psychological pain is not a privilege or benefit of employment; court’s reasoning that Union Pacific does not have to grant plaintiff’s accommodation request, use of a service animal, because it would enhance plaintiff’s job performance; and thoughts/takeaways. Of course, the reader is free to concentrate on any or all of the categories.

 

I

How Did the Case Get to the Judgment As a Matter of Law Point

 

How the case got to the point where the court decided to grant a judgment as a matter of law to Union Pacific is a bit odd and bears going over. The complaint was bare-bones but was based on a reasonable accommodation theory. The reasonable accommodation requested was the use of a service animal so as to allow the plaintiff (a person with post-traumatic stress disorder and traumatic brain injury), to deal with mental and psychological pain. For reasons unknown, at the summary judgment stage, which plaintiff successfully fought off, the plaintiff’s attorney switched the argument away from reasonable accommodation to the theory that a privilege and benefit of employment was involved. It then proceeded to trial and the plaintiff prevailed. Union Pacific filed a judgment as a matter of law.

 

II

Court’s Reasoning That Seeking to Work without Mental and Psychological Pain Is Not a Privilege or Benefit of Employment

 

  1. Plaintiff did not identify a corresponding benefit or privilege of employment offered to Union Pacific employees.
  2. No evidence was presented at trial that Union Pacific offers service animals to it non-disabled employees as a benefit and privilege of employment.
  3. Plaintiff had not demonstrated that Union Pacific provided service animal as a benefit or privilege of employment or any other similarly situated non-disabled employee.
  4. A remedy is available for a plaintiff who can establish the need for reasonable accommodation to enjoy equal benefits and privileges of employment that are enjoyed by similarly situated employees without disabilities.
  5. A benefit and privilege of employment case is a different kettle of fish than a reasonable accommodation case.
  6. Plaintiff admitted that he could both effectively do his job’s essential functions and access Union Pacific’s facilities without his service animal. In fact, plaintiff asserted throughout the case that he could perform the essential functions of his job.
  7. No authority exists where a court has said that a person with a disability has the right to work without mental or psychological pain. In fact, numerous cases suggest that employees do not have a right to work free from mental or psychological pain.
  8. Plaintiff did not establish that Union Pacific offered similarly situated non-disabled employees the benefit and privilege of working without mental or psychological pain.

III

Court’s Reasoning That Union Pacific Did Not Have To Grant Plaintiff’s Accommodation Request, Use of a Service Animal, Because It Would Enhance Plaintiff’s Job Performance.

 

  1. At trial, plaintiff asserted that his job performance would be enhanced when he was able to avoid the symptoms of PTSD and traumatic brain injury. The same argument was made at closing. Such an argument might be appropriate for an essential functions reasonable accommodation analysis. However, that argument does not work for a benefits and privileges of employment reasonable accommodation analysis.
  2. In the context of job performance, the EEOC Enforcement Guidance talks about a reasonable accommodation as one that enables the individual to perform the essential functions of the position.
  3. The EEOC Interpretive Guidance for title I of the ADA talks about equal employment opportunity meaning an opportunity to attain the same level of performance, or to enjoy the same level of benefits and privileges of employment as are available to the average similarly situated employee without a disability.
  4. The Eighth Circuit has held that accommodations are not reasonable unless they help the employee in performing the duties of his or her particular job.
  5. The Eastern District of Michigan have said that the plaintiff has the burden of establishing by a preponderance of the evidence that having the service dog by his side in all aspects of his job would have enabled him to perform the essential functions of that job. In other words, the plaintiff in that case did not establish that his service dog helped him perform the essential functions of his job.
  6. Plaintiff’s service animal trainer testimony that plaintiff’s service dog was trained to assist the plaintiff with getting on a plane, going to an amusement park, going out to dinner, and attending cheer competitions made the plaintiff a better person 100% of the time does not establish a claim to a benefit and privilege of employment that plaintiff identified.
  7. EEOC Interpretive Guidance hypotheticals addressed request for accommodations needed to perform the essential functions of the job, but do not provide guidance regarding equal access to employer-sponsored benefits and privileges of employment. Further, nothing in those hypotheticals suggest that freedom from mental and emotional pain constitute such a benefit or privilege.

 

IV

Thoughts/Takeaways

 

  1. Plaintiff has filed a notice with the district court of intent to appeal to the Eighth Circuit.
  2. Strategic decisions as a case goes along can profoundly influence the shape of the case. It is very unclear to me as to why plaintiff’s attorney shifted the argument away from reasonable accommodation to privileges and benefits of employment at the summary judgment stage.
  3. This case is terribly problematic for people with service dogs. The question is whether the disability is the one that is being accommodated or whether it is the essential functions of the job that is being accommodated. It is interesting that the district court cites Felix because that case stands for the proposition, as we discussed here, that it is the disability that gets accommodated and not the essential functions. This distinction matters, especially so in service animal cases. For example, it may be relatively straightforward to show that a service animal is accommodating a person’s disability, but it may be much harder to show that a service animal is a accommodating a particular essential functions of the job.
  4. If you are on the defense side, you certainly want to argue that any service animal has to relate to enabling that person to perform the essential functions of his or her job. On the plaintiff side, you want to argue that the service animal is accommodating the disability and it is those accommodations that enable the person with the disability to perform the essential functions of his or her job. On this question, expert testimony may be necessary. As a matter of preventive law, the better approach is to relate the service animal to accommodating the disability and not to the essential functions of the job.
  5. It makes sense to me that an equal benefit and privileges of employment case is going to turn upon how non-disabled employees have an opportunity to enjoy those equal benefit and privileges of employment. On the other hand, a reasonable accommodation case is focused on the individual person with a disability and does not get into the comparative analysis. The equal benefit and privileges of employment case is going to be a harder case on the plaintiff side than the reasonable accommodation case because of that comparative analysis.
  6. I realize that this case is ostensibly about the ability to be free from psychological pain or mental distress, but I don’t think this case is about that at all. This case is about strategic decisions made with respect to a person with a disability having a service animal. The case is also about whether the accommodation must relate to the essential functions of the job or to the disability itself.
  7. In disability discrimination cases especially, bare-bones complaints are not recommended. The better approach is a hybrid one where a plaintiff gives the defendant enough facts so that it is clear just what claims are being alleged. While fact-based pleading isn’t required, more is better.
  8. The court talks about enhanced performance of the person with the disability, but that isn’t the question. The question is whether the accommodation gets the person with the disability to the same starting line as the person without a disability.
  9. One thing strange about this case is that typically a service animal would always be by a person’s side when the animal is accommodating post-traumatic stress disorder or traumatic brain injury, but that doesn’t seem to be the case here. That said, depending on the disability it is entirely possible that you could have a service dog that is not always by the person with a disability side. For example, in the Deaf/deaf community it is not unusual at all for hearing dogs to be strictly home-based, mine certainly is.
  10. Remember, that the EEOC regulations (title I), have nothing dealing with service animals. However, the DOJ (titles II-III), certainly does have such regulations. It would be a mistake to apply the principles of this case to a non-employment situation because of the differences in those regulations.

I have been blogging since December, 2011. In all that time, I can count on one hand the number of times that I have blogged more than once during a week. As far as I can recall, I have never blogged on back-to-back days. I had actually completed two drafts of the blog entry that hit the mailboxes today before seeing a breaking news alert from Law 360 that Cummings had been decided by the United States Supreme Court, so I went ahead and finished the blog entry that hit the mailboxes earlier in the week and then did Cummings the next day.

 

I previously blogged on the oral argument in Cummings here. I made a prediction in that blog entry based upon the questions that were asked in the oral argument. It turns out my prediction was way off. As usual, the blog entry is divided into categories and they are: Justice Roberts majority opinion holding that the Rehabilitation Act and the Affordable Care Act do not allow for emotional distress damages; Justice Kavanaugh’s concurring opinion; Justice Breyer’s dissenting opinion; and thought/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

 

I

Justice Roberts Majority Opinion Holding That the Rehabilitation Act and the Affordable Care Act Do Not Allow for Emotional Distress Damages.

 

  1. Congress has broad power under the Spending Clause of the Constitution to set terms for dispersing federal funds. Such legislation is in the nature of a contract whereby in return for federal funds, the recipient agrees to comply with federally imposed conditions.
  2. Legislation enacted under the Spending Clause of the Constitution may be enforced through implied rights of actions and private plaintiffs can secure injunctive or monetary relief in such suits. Punitive damages are not available for such suits per Barnes v. Gorman, which can be found here.
  3. Congress has enacted four statutes prohibiting recipients of federal financial assistance from discriminating based upon certain grounds. Those statutes are: title VI of the Civil Rights Act, which forbids race, color, and national origin discrimination in federally funded programs or activities; title IX of the Education Amendments of 1972, which prohibits sex-based discrimination; the Rehabilitation Act of 1973, which bars funding recipient from discriminating because of disability; and the Affordable Care Act, which outlawed discrimination on any of the preceding grounds, in addition to age, by healthcare entities receiving federal funds.
  4. None of the statutes mentioned in ¶ 3 provide victims of discrimination a private right of action to sue the funding recipient in federal court. Nevertheless, the United States Supreme Court previously found an implied right of action in such statutes. Congress also later acknowledged that right in amendments to those statutes leading the Supreme Court to conclude that Congress had ratified the Court’s prior holding that private individuals may sue to enforce those statutes.
  5. Both the Rehabilitation Act and the Affordable Care Act expressly incorporate the rights and remedies provided under title VI.
  6. Spending Clause legislation operate based on consent. That is, in return for federal funds, the recipient agrees to comply with federally imposed conditions. So the key question is whether the recipient voluntarily and knowingly accepts the terms of that contract.
  7. Recipients cannot knowingly accept the deal with the federal government unless they would clearly understand the obligations that come along with doing so.
  8. If Congress intends to impose a condition on the grant of federal monies, it has to do so unambiguously.
  9. When considering whether to accept federal funds, a prospective recipient would surely wonder not only what rules it must follow, but also what sort of penalties might be on the table. So a particular remedy is thus appropriate relief in a private Spending Clause action, only if the funding recipient is on notice that by accepting federal funding, it exposes itself to liability of that nature.
  10. In other words, the question is whether a prospective funding recipient at the time it engages in the process of deciding whether to accept federal dollars, would have been aware that it faced such liability.
  11. A recipient is on notice to whatever remedies are explicitly provided in relevant legislation. Since it is Spending Clause legislation, a recipient is also on notice with respect to those remedies traditionally available in suits for breach of contract, compensatory damages and injunctive relief. Such an approach also means that punitive damages, per Barnes, are out because they are not generally available for breach of contract.
  12. Under Barnes, it can be assumed that a federal funding recipient is aware that for breaching Spending Clause based contract with the federal government, that it will be subject to the usual contract remedies and private suits, excepting punitive damages.
  13. It is hornbook law that emotional distress is not generally compensable in contract. Accordingly, it is not possible to treat federal funding recipient as having consented to damages for emotional distress as such damages are not traditionally, generally, or normally found in suits for breach of contract.
  14. The approach offered by Cummings pushes the notion of offer and acceptance beyond its breaking point. It is one thing to say that funding recipients know the basic, general rules. However, it is quite another to assume that funding recipients know the parameters of every contract doctrine, no matter how idiosyncratic or exceptional those doctrines may be. Such an approach also risks overturning legislative power.
  15. Barnes mandates that courts imply only those remedies that are normally available for contract actions, and a court is not free to treat statutory silence as a license to freely supply remedies that it cannot be sure Congress would have chosen to make available.
  16. The Restatement of Contracts saying that emotional distress damages are available where the contractor’s breaches are of such a kind that serious emotional disturbance with a particularly likely result simply doesn’t hold up on further analysis. The Restatement approach does not reflect the consensus rule among American jurisdictions. The Court goes on to explain that states are all over the place with respect to the Restatement with some following it, others rejecting it, and others finding a middle ground. As such, is not possible to argue that clear notice exists for allowing emotional distress damages in Spending Clause legislation where no such damages are explicitly stated in the statute.

 

 

 

II

Justice Kavanaugh Concurring Opinion (Justice Gorsuch Joined)

 

  1. The contract analogy is an imperfect way to determine the remedies for this particular implied cause of action.
  2. So, it is Congress and not the Supreme Court that should extend those implied causes of action and expand available remedies. Since that has not been done, emotional distress damages are not in play.

 

III

Justice Breyer Dissenting Opinion (Justice Sotomayor and Justice Kagan Joined)

 

  1. Citing to the Restatement Second of Contracts, emotional distress damages have long been traditionally available when the contract or the breach was of such a kind that serious emotional disturbance was a particularly likely result.
  2. A private cause of action does exist for enforcing the four antidiscrimination statutes tied into Spending Clause legislation.
  3. The majority opinion will affect the remedies available under all four of those statutes, impacting victims of race, sex, disability, and age discrimination alike.
  4. Compensatory damages serve contract law’s general purposes, however, punitive damages go beyond compensating the injured party for lost expectation and instead put him in a better position than had the contract been performed.
  5. Most contracts are commercial contracts in nature entered for pecuniary gain. Pecuniary remedies are therefore typically sufficient to compensate the injured party for their expected losses.
  6. Contract law treatises make clear that expected losses from the breach of a contract entered for nonpecuniary purposes might reasonably include nonpecuniary harms. So contract law traditionally does award damages for emotional distress where other than pecuniary benefits are contracted for or where the breach is particularly likely to result in serious emotional disturbance. Such contracts have included, among others: 1) contracts for marriage; 2) contract by common carrier, innkeepers, or places of public resort or entertainment; 3) contract relating to the handling of a body; and 4) contracts for delivery of a sensitive telegram message. In all of those cases, emotional distress damages are compensatory because they make good the wrong done.
  7. Breach of a promise not to discriminate falls into the same kind of contract as those described in ¶ 6. The purpose of statutes seeking to eradicate invidious discrimination is clearly nonpecuniary. Also, discrimination based upon race, color, national origin, sex, age, or disability is particularly likely to cause serious emotional harm. In fact, often times emotional injury is the primary and sometimes only harm caused by the discrimination, with pecuniary injury at most secondary. For this point, Justice Breyer cites to: 1) a case involving a high school student repeatedly sexually assaulted by her teacher; 2) a person using a wheelchair who was forced to crawl up two flights of stairs to access the courthouse (Tennessee v. Lane, here); and 3) many historical examples of racial segregation in which black patrons had to use separate facilities or services. Regardless of whether financial injuries were present in these cases, a major and foreseeable harm was emotional distress caused by the indignity and humiliation of discrimination itself.
  8. Justice Goldberg stated when affirming the Civil Rights Act of 1964 that antidiscrimination laws seek the vindication of human dignity and not mere economics.
  9. It is difficult to believe that perspective funding recipients would be unaware that intentional discrimination based on race, sex, age, or disability is particularly likely to cause emotional suffering. Justice Breyer also does not believe that recipient would be unaware that in the event of an analogous contractual breach they could also be held legally liable for causing emotional distress.
  10. The majority opinion overly narrows Barnes, which did not contain the limitation that perspective funding recipients could only be expected to be aware of basic, general rules and not the exceptions or subsidiary rules governing specific circumstances.
  11. The majority opinion’s comparison to punitive damages is simply not persuasive because punitive damages are not embraced by contract law analogy since they do not serve the central purpose of compensating the injured party. So, the punitive damages exception cited by the majority opinion is not relying on contract law principles at all, but rather on tort law.
  12. According to The Restatement, when contract and tort claims overlap, contract law does not preclude an award of punitive damages if such an award is appropriate under the law of torts.
  13. The Restatement does not attribute the availability of emotional distress damages to tort rather than contract law.
  14. Nothing in Barnes requires the Court to ignore directly applicable contract rules in favor of the less applicable general rule on which the majority opinion relies.
  15. The majority opinion creates an anomaly. Other antidiscrimination statutes that Congress has provided an express cause of action for do permit recovery of compensatory damages for emotional distress, such as §§1981, 1983 claims. What the majority opinion means is that until Congress fixes the lack of emotional distress being explicitly stated for in the statute, remedies available under certain statutes would not be available under other statutes, such as to students suffering discrimination at the hands of the teachers, patients suffering discrimination at the hands of their doctors, and others.
  16. It is difficult to square the majority opinion’s holding with the basic purposes that antidiscrimination laws seek to serve. One of those purposes is vindicating human dignity and not mere economics.
  17. The majority opinion allows victims of discrimination to recover damages only if they can prove that they have suffered economic harm even though the primary harm inflicted by discrimination is rarely economic. Victims of intentional discrimination may sometimes suffer profound emotional injury without any attendant pecuniary harms. The majority opinion leaves those victims with no remedy at all.

 

IV

Thoughts/takeaways

 

  1. The majority opinion means that unless the particular Spending Clause legislation has an explicit provision in its statute for recovery of emotional distress damages, emotional distress damages will not be recoverable. So, be sure to check the appropriate Spending Clause legislation to see if an explicit emotional distress statutory provision exists. If not, emotional distress is going to be out, though traditional contract compensatory damages and injunctive relief are in. The statutes are all fee shifting statutes. So, attorney fees are also in play.
  2. Both the majority and dissenting opinions rely heavily on Barnes v. Gorman, which you can read for yourself here.
  3. The Supreme Court did affirm that under all of the statutes a private cause of action exists.
  4. Justice Kavanaugh’s concurring opinion to my mind raises a question associated with standing as well. That is, if it is Congress that establishes causes of action, why isn’t that a cause of action in and of itself not sufficient to allow for standing? Justice Kavanaugh’s approach does bring into question, to my mind anyway, the validity of the holding of the Court in TransUnion, which we discussed here.
  5. It is hard for me to understand how it is arguable that the purposes of statutes seeking to eradicate invidious discrimination are anything but nonpecuniary. That is, it is clear that such laws seek the vindication of human dignity and not mere economics.
  6. Previously, we discussed that getting damages under title II of the ADA and the Rehabilitation Act in 1973 means proving deliberate indifference per this blog entry. So, the question becomes whether deliberate indifference is now necessary to prove compensatory damages when emotional distress damages are not in play. If so, and that indeed may be very well the case after this opinion, it is hard to believe that many plaintiff’s lawyers will be interested in taking on title II/§504 cases on a contingency fee basis because you are talking about a relatively high standard for damages that don’t even pertain to emotional distress. I will say that my experience is that many attorneys operating in §504/title II of the ADA do not work on contingency basis, though some do. For those working on a contingency fee basis, this decision may severely impact how they go about deciding what cases to take on. All that said, attorney fees are still in play, but you can expect after this decision that fewer and fewer plaintiff side attorneys will take title II and §504 cases.
  7. This case also has a huge impact on title III standing cases with respect to serial plaintiffs, especially Internet accessibility serial plaintiffs. That is, since emotional distress damages are out of bounds, how can the stigmatic harm be even possible to confer standing. This is especially so considering damages are not even allowed under title III of the ADA per 42 U.S.C. § 12188.

I had already gone through two drafts of putting this blog entry together when I saw that the United States Supreme Court came down with it decision in Cummings (we discussed the oral argument here). One thing Cummings shows me is that predicting the Supreme Court result from the oral argument is a fools errand. I will try to remember that the next time. The case will be my very next blog. In short, the majority opinion decides that emotional distress damages are simply not a part of the traditional calculus of contract damages and therefore, are not available under the Rehabilitation Act of 1973 as well as the Affordable Care Act. More on this next week or if I can swing it, later this week.

 

Today’s blog entry gets its origins from both a case in my pipeline and from me finishing a chapter on disability discrimination that will appear in the Rutter Group Federal Employment Law Litigation treatise later this year. So, the blog entry discusses two different concepts. First, does proving up a substantial limitation on the major life activity of working, which has customarily meant having to show that the plaintiff cannot do a broad range of jobs, survive the ADAAA? Second, does morbid obesity require an underlying physiological condition when claiming disability discrimination. As usual, the blog entry is divided into categories and they are: working at the major life activities; does morbid obesity require an underlying physiological condition in order to be considered a disability; Texas Tech University Health Sciences Center-El Paso v. Dr. Niehay facts; court’s reasoning that morbid obesity qualifies as an impairment in a regarded as claim even without evidence of an underlying physiological cause; court’s reasoning on the applicability of the catspaw theory; court’s reasoning that the lower court did not err in considering Texas Tech’s own personnel statements about what happened when the interim program director consulted Texas Tech University legal counsel; court’s reasoning that direct evidence existed; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Working as the Major Life Activity

 

In Sutton v. United Airlines the Supreme Court held that mitigating measures should be considered when deciding whether a person had a disability. That particular holding was overruled by the amendments to the ADA, the ADAAA. Sutton also said that to be substantially limited in the major life activity of working that you had to look at whether the individual could do a broad class of jobs. The question is whether after the amendments to the ADA does that principle still survive? The answer is confusing, especially if you do Boolean searching in a legal database as that will likely lead you one way that may not be accurate. What you do have to do is start with the case of Booth v. Nissan North America, 927 F.3d 387, 394 (6th Cir. 2019). Then, cite check, Sheppardize, or whatever you like to call it the section of Booth talking about how proving up working as the major life activity follows Sutton even after the ADAAA. When you do that, you find out that the EEOC also agrees that the analysis of the major life activity of working being substantially limited, which focuses on whether the individual can do a broad class of jobs, still survives even after the amendments to the ADA. See, EEOC Interpretive Guidance of title 1 of the ADA at 1630.2(j)(5) and (6). So, you have both case law as well as guidance from the EEOC itself talking about how the broad class of jobs is still the rule with respect to figuring out whether working as the major life activity is substantially limited. As such, if you are on the plaintiff side you definitely want to avoid alleging working as the major life activity if at all possible, a point which the EEOC makes in its guidance as well. If you do allege working as the major life activity and you do not have to, one wonders whether that wouldn’t give rise to a legal malpractice claim, and we discussed that possibility here.

 

II

Does Morbid Obesity Require an Underlying Physiological Condition in Order to Be Considered a Disability

 

The answer to this question entirely depends upon the jurisdiction you were in. At the federal level, the trend is very clear that morbid obesity requires an underlying physiological impairment in order to proceed with a disability discrimination claim. See here for example. However, many states have their own disability nondiscrimination laws and they are not necessarily tracking the federal trend. For example, we previously discussed how Washington has decided that morbid obesity is always a disability under Washington Law Against Discrimination. Recently, Texas has decided that under their disability nondiscrimination law, the Texas Commission on Human Rights Act law that morbid obesity does not require an underlying physiological impairment in a regarded as claim situation. Let’s take a look at the Texas decision, Texas Tech University Health Science Center-El Paso v. Dr. Niehay, here, decided on January 31, 2022, by the Court of Appeals of Texas.

 

III

 

Texas Tech University Health Science Center-El Paso v. Dr. Niehay Facts

 

The facts of this case are quite egregious and can be found in great detail in the opinion. Basically, you have a resident that weighed over 400 pounds. The program where she was doing a residency at did not appreciate that. She had a particular problem with the person who ran the residency program, an interim director. At one point, the interim director actually went into the University legal counsel’s office to figure out whether she could terminate the resident because of the plaintiff’s weight. The lawyer for the school said that she could not terminate based upon that reason because it would be discrimination. After hearing that, she repeated to the attorney that she believed that the resident was not performing well because of her weight and that she needed to find another reason to terminate her from the program. The University did not take steps to protect the information from when the program director consulted legal counsel when it was revealed what the nature of that conversation was at the program director’s deposition.

 

IV

Court’s Reasoning that Morbid Obesity Qualifies as an Impairment in a Regarded As Claim Even without Evidence of an Underlying Physiological Cause

 

  1. No dispute exists that plaintiff was morbidly obese.
  2. No dispute exists that her condition was transitory or minor.
  3. The Texas Commission on Human Rights Act defines a disability as a mental or physical impairment or being regarded as having such an impairment. Texas Labor Code Annotated §21.002(6).
  4. The Code of Federal Regulations as promulgated by the EEOC provided significant guidance to the interpretation of the Texas Commission on Human Rights Act.
  5. The relevant provisions in the Code of Federal Regulations define a physical or mental impairment as any physiological disorder or condition affecting one or more body systems. Those body systems might include the neurological, musculoskeletal, respiratory, cardiovascular, digestive, genitourinary, immune, circulatory, humic, lymphatic, skin, or endocrine system. 29 C.F.R. §1630.2(h)(1).
  6. While physiological disorder and physiological condition are not defined by the C.F.R., when the statute uses an undefined word, a court should apply the word’s common ordinary meaning.
  7. Webster’s defines physiology as the organic processes and phenomena of an organism or any of its parts of a particular bodily process.
  8. The word “condition,” when referring to a physical state includes, “a mode or state of being… proper or good condition (as for work or sports competition)… the physical status of the body as a whole… [Usually] used to indicate abnormality.” Morbid obesity meets these definitions.
  9. The Texas Court of Appeals cites to the Washington case that we discussed here.
  10. Plaintiff testified at her deposition that her morbid obesity is a contributing factor to cardiac issues and is also associated with metabolic syndrome, which includes hormonal imbalances, insulin resistance, and the potential to develop type II diabetes. She also testified that can affect activities such as walking, running, climbing, breathing and muscle function. Plaintiff and Amicus also directed the court to secondary medical authority viewing morbid obesity as a physiological disorder or disease without regard to its cause.
  11. Another Texas Court of Appeals has previously stated that obesity can be properly classified as a disability when it substantially affects the body system.
  12. In a regarded as claim, the plaintiff need not actually have the perceived impairment, rather plaintiff only needs to be regarded, whether it be correctly or incorrectly, as having it by the employer. It is illogical to suggest that a plaintiff must establish that the imagined impairment they are regarded as having by their employer-but don’t actually have-is also regarded by the employer as being caused by an imagined underlying physiological cause that they likewise don’t have. There is also no basis or authority for imposing that requirement on a portion of regarded as cases (where the plaintiff is shown to actually have the perceived impairment), but not others (where she isn’t).
  13. Texas Tech’s interpretation of the law makes no sense for another reason as well. That is, even if the employer did fabricate and imagine cause for the impairment that the person did not have, the specific cause they imagined would determine whether liability existed or not. For example, an employer deciding the employee was morbidly obese for psychological reasons could never be held liable for terminating the employee on that basis. Yet an employer who viewed the employee had being morbidly obese through no fault of their own-for physiological reason-would be subject to potential Texas Commission on Human Rights Act liability.
  14. The decision is limited to regarded as claims.
  15. It is possible that the defense may still prevail on the merits. For example, it might be able to show that the plaintiff was not qualified, especially since a person with a regarded as claim is not entitled to reasonable accommodations under the ADA as amended.

 

V

Court’s Reasoning on the Applicability of the Catspaw Theory

 

  1. Under the catspaw theory, a plaintiff need not show that the final, official decision-maker harbored a discriminatory animus toward her. Instead, the plaintiff may present evidence that a subordinate employee harbored such intent, and that the subordinate employee’s efforts led to a recommendation for termination, which the final decision-maker effectively rubber stamped. That is, federal courts will not blindly accept the titular decision-maker at the true decision-maker. Rather the question is whether the worker possess leverage, or exerted influence over the titular decision-maker.
  2. Another way to look at it is if a supervisor performs an act motivated by unlawful animus intended by the supervisor to cause an adverse employment action and that act as a proximate cause of the ultimate employment action, then the employer is liable.
  3. Some evidence existed that the interim program director was fulfilling the role of program director at the time of the disciplinary hearings. The interim program director testified at her deposition that she retained a function of program director, i.e. responsible for supervision of the program. She also reiterated that in her CV attached to her deposition. Finally, another physician who became a faculty member at the tail end of plaintiff’s disciplinary proceedings testified in his deposition that it was his understanding that the interim program director had been performing most of the duties of program director while another person served at the name director before his arrival.
  4. In a footnote, the court noted that the interim program director made corrections to her deposition testimony with her actual deposition testimony. If nothing else, that created the question of fact regarding the role she actually performed at the time of plaintiff’s termination.
  5. Evidence also existed that the interim program director used her position to initiate and pursue disciplinary proceedings against the plaintiff with limited supervision or input from the named program director. More particularly, without first consulting with the named program director, the interim director: 1) initiated an investigation into plaintiff’s performance; met with legal counsel; 2) sought advice on what disciplinary steps she should take; 3) called emergency meeting to discuss plaintiff’s performance; and 4) took the lead role in gathering and presenting information regarding plaintiff’s performance. She also sent emails outlining several new complaints about the plaintiff and advocated for urgent action. In the responses to those emails, several members of the disciplinary committee, advocated for plaintiff’s immediate suspension or termination based in part upon the information supplied by the interim program director.
  6. The named program director testified that he conducted no independent investigation to verify the information presented to him by the interim program director before recommending plaintiff’s termination. He also testified that had he been in charge of the disciplinary proceedings, he would have conducted an independent investigation into the claims against the plaintiff for reporting the matter onto the disciplinary committee.
  7. It was the interim program director that took the lead role in summarizing the evidence leading to the recommendation to terminate the plaintiff.
  8. No evidence existed that an independent investigation was launched before upholding the termination recommendation.

 

VI

Court’s Reasoning That the Lower Court Did Not Err in Considering Texas Tech’s Personnel Statements about What Happened When the Interim Program Director Consulted Texas Tech University Counsel

 

  1. A Yolanda Salas was present in the room when the interim program director met with Texas Tech University legal counsel, Frank Gonzalez, about the plaintiff’s situation.
  2. At that meeting, Salas said the following transpired:

 

Gonzalez advised Dr. Wells that “she had to find specific reasons why she wasn’t performing well to dismiss her,” and that Gonzalez advised Dr. Wells that she could not “use her weight as a reason to dismiss her.” He also reportedly advised Dr. Wells that there had to be other reasons to dismiss Dr. Niehay. Salas also testified that during the meeting, Gonzalez repeatedly cautioned Dr. Wells to be “careful how she handled this [and] that she couldn’t mention anything about her weight.” Dr. Wells agreed with Gonzalez that she could not mention Dr. Niehay’s weight, and then asked him how she could “word it,” apparently referring to her initiation of disciplinary proceedings, to instead “show” that Dr. Niehay was not performing well. And, Salas testified that Dr. Wells informed her after the meeting that she believed Dr. Niehay “wasn’t performing well because of her weight and that–but that she had to find a way to–find other reasons other than that” to terminate her. Salas expressed her belief that Dr. Wells was determined to find other reasons to dismiss Dr. Niehay, in order “to 20 As a predicate to this question, Dr. Niehay’s counsel first asked what Salas had told Dr. Niehay about what attorney Gonzalez had said. Texas Tech’s counsel then stated, “Objection, privileged.” The witness then asked that the question be repeated, and the counsel then asked a somewhat different question–whether a specific statement was made by attorney Gonzalez, to which no objection was made. 41 go around the weight issue” and that she later contacted various other faculty members, “just looking for a reason to dismiss her.”

 

  1. The parties agree that the communication between the interim program director and Frank Gonzalez were covered by the attorney-client privilege.
  2. The attorney-client privilege is waived when the holder of the privilege voluntarily discloses the privileged material to a third party.
  3. Salas, who was not a management level employee within the agency, lacked the independent authority to waive the privilege on Texas Tech’s behalf.
  4. The attorney-client privilege can also be lost during discovery proceedings when the party holding the privilege fails to adequately assert it, and instead allows the privileged information to be disclosed on the record.
  5. Texas Rules of Civil Procedure allows for an attorney to instruct a witness not to answer a question during an oral deposition if it is necessary to preserve a privilege.
  6. Texas Rules of Evidence supports the general rule that evidentiary privileges are waived at the privilege holder voluntarily discloses the privileged matter or consents to disclosure. One subsection of that rule specifically applies to the attorney-client privilege and limits the general waiver rule when there has been actual disclosure. That particular section provides a mechanism to clawback inadvertently disclose attorney-client communication providing it is done promptly.
  7. Texas Tech allowed the substance of the privilege communication to be elicited at a deposition and later transcribed. That is a problem because once the information has been disclosed, loss of confidentiality is irreversible.
  8. The preferred course of action would have been for Texas Tech’s counsel at Salas’s’ deposition to instruct Salas , who was a current employee, not to reveal attorney-client communications, an approach specifically allowed by the Texas Rules of Civil Procedure. That simply wasn’t done. Further, Texas Tech took no action to protect the privilege communication until almost 2 years later, which was certainly not promptly, when objected to plaintiff’s use of the deposition when it filed a motion to strike.

 

VII

Court’s Reasoning That Direct Evidence Existed

 

  1. Salas’s testimony was direct evidence that the interim program director had discriminatory intent against the plaintiff based upon plaintiff’s perceived impairment, and so the McDonnell Douglas burden shifting procedure does not apply to this case.
  2. For workplace comments to provide sufficient evidence of discrimination, the remarks must be: 1) related to the protected class; 2) proximate in time to the adverse employment decision; 3) made by an individual with authority over the employment decision at issue; and 4) related to the employment decision at issue.
  3. Salas’s testimony not only contained comments that the interim program director viewed plaintiff’s weight to be an impairment, but also expressed an intent to terminate the plaintiff and find other pretextual reason to cover up her true motives. The timing of those statements was just before the imposition of the probationary period that preceded plaintiff’s termination.

 

VIII

Thoughts/Takeaways

 

  1. Many states have disability nondiscrimination laws and they may take a different approach than the federal cases interpreting the ADA even though those states will look to the ADA and the EEOC for guidance. Washington and Texas have now done precisely that with respect to whether a physiological condition is required for morbid obesity claims. The Washington case goes further because it extends beyond regarded as claims.
  2. The Texas case is a regarded as claim case. That is a very important distinction because under both Texas and the ADA as amended, regarded as claims do not allow for reasonable accommodations. In this particular case, that could be a critical factor.
  3. Whether morbid obesity requires an underlying physiological condition will undoubtedly head to the Supreme Court eventually.
  4. As far back as 1993, the First Circuit held that morbid obesity was a disability under §504 of the Rehabilitation Act. See, Cook v. Rhode Island, Department of Mental Health, Retardation, & Hospitals, 10 F.3d 17 (1st Cir. 1993), which was also a regarded as claim.
  5. Labor and employment lawyers frequently discuss the catspaw theory of liability as it can come up frequently. I haven’t done that much in my blog. The Texas decision does a nice job of laying out the theory in an understandable manner.
  6. Attorney-client privilege can be compromised by third parties in the room.
  7. Texas Tech’s approach to protecting the conversation was a bit strange. It seemed that just got lost in the shuffle somehow. If you do have an issue with needing to protect the attorney-client privilege, it has to be done promptly.
  8. It is rare at depositions where a lawyer instructs a witness not to answer a particular question, but it does happen from time to time and indeed, as this case illustrates, it should happen.
  9. Even if somehow the conversation with the attorney was not admitted, the facts of this case are so egregious that the plaintiff might still survive under McDonnell Douglas.
  10. Independent investigations are an excellent preventive law tool. If utilized in this case, the result may have been different.
  11. There also seemed to be a lack of training on what the rights of people with disabilities are. Be sure to use knowledgeable trainers (it’s a huge part of my practice).
  12. Direct v. indirect evidence is made a big deal of here. That continues to be the case in most places. We did discuss one court’s frustration with having to make the distinction constantly here.
  13. The first section of this blog entry should make it very clear that a plaintiff should only when absolutely necessary alleged working as the major life activity. It is simply too difficult to prove and also creates a risk of legal malpractice, which we discussed here. I believe that it is likely that even after Kisor v. Wilkie, which we discussed here, that determining whether working at the major life activity is substantially limited per the Sutton test and the EEOC interpretive guidance will survive if it ever gets to the Supreme Court.

Today’s blog entry discusses two different concepts. The first concept it discusses is what just does “transitory and minor,” mean for purposes of the regarded as exception and for purposes of what I mean when I keep talking about it as a great preventive law approach to deciding when a temporary disability might be protected under the actual disability prong. Second, the blog entry discusses a published decision, Buchanan v. Watkins and Letofsky, LLP, here, out of the Ninth Circuit decided April 7, 2022, discussing whether a business with multiple offices can have the employees from the multiple offices all count together for purposes of determining whether the minimum threshold of 15 employees is satisfied for purposes of subjecting that entity to the ADA. As usual, the blog entry is divided into categories and they are: just what does transitory and Minor mean?: Thoughts from Prof. Cheryl L Anderson of the Southern Illinois University Law School; just what does transitory and Minor mean?: My thoughts; Buchanan facts; court’s reasoning reversing and remanding the district court’s grant of summary judgment regarding whether the firm was an integrated employer; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories. Finally, I also want to thank the people who reached out to me on LinkedIn with their thoughts on what cases in my blog pipeline I should be blogging on next. The integrated employer case was one of the cases my readers wanted to know more about.

 

I

Just What Does Transitory and Minor Mean?: Thoughts from Prof. Cheryl L Anderson of the Southern Illinois University Law School.

 

 

For quite some time now, I have been talking about how an excellent preventive law approach to figuring out whether a temporary disability is an actual disability covered by the ADA would be to adopt the transitory and minor exception from the regarded as prong. I just assumed that what was “transitory and minor,” was obvious. I should have remembered my first day of law school when the law professor puts the word “assume,” on the board (it was a board back then😊), and then broke the word down into three separate subparts. It turns out that “transitory and minor,” is far from obvious as discussed in this excellent law review article coming soon in the University of San Diego Law Review (University of San Diego happens to be where I got my first law degree from), written by Prof. Cheryl L. Anderson of the Southern Illinois University Law School. In that law review article, she goes into the case law interpreting transitory and minor and reveals that the courts are absolutely all over the place. She suggests that there is no coherent explanation for why the length of impairment is the most important determinant of whether someone subjected to discrimination based upon that impairment is protected under the regarded as prong of the ADA. She also says that the legislative history makes only vague references to the business community’s concerns about the misapplication of resources unless the claims were’s at the lowest end of the severity spectrum. She does allow that it might be a misapplication of resources for an employer to have to accommodate the common cold or mild allergies or a hangnail, which was the types of conditions referenced in the legislative history. Those particular conditions are not impairments leading to adverse employment actions absent highly unusual situations. All that said, things like broken limbs, kidney stones, and miscarriages do not result in any less discriminatory stigma when they are the basis for the adverse actions when compared to other longer lasting disabilities. The law review article is entitled, “No Disability If You Recover: How the ADA Short Changes Short-Term Impairments.” It is an excellent article and can be found here. I strongly encourage its reading, and I don’t say that very often for law review articles.

 

II

Just What Does Transitory and Minor Mean?: My Thoughts

 

After reading the law review article mentioned above, I felt I had no choice but to clarify what I mean by, “transitory and minor.” Of course, my thoughts are not persuasive authority and may never be adopted by the courts. However, I keep talking about how transitory and minor is an excellent preventive law approach, and I do believe my readers are entitled to know what I mean when I refer to that term. When I refer to the term “transitory and minor,” the term means the following to me. First, transitory means a period of six months or less as you find in the exception for the regarded as prong. “Minor,” to me means anything that satisfies the definition of a disability under the actual disability prong after the amendments to the ADA. So, when I am referring to the term “transitory and minor,” what I have in mind is a period of six months or less and anything satisfying the definition of the actual disability prong after the amendments to the ADA. Of course, this approach means that particular condition must be BOTH transitory AND minor. I probably get to a very similar place as Prof. Anderson with this approach, though it may not be precisely the same.

 

III

Buchanan Facts

 

Starting in 2016, Amy Buchanan, the plaintiff, worked as a full-time associate attorney at Watkins and Letofsky Nevada, the defendant. In September 2016, because of health concerns, plaintiff resigned her position from the law firm. In December 2016, she returned to work there. Plaintiff alleges that when she did return, the firm agreed to accommodate her medical condition by reducing her expected commitment to 20 hours per week. Plaintiff further contended that despite this agreement, the firm required her to work more than 20 hours per week. In May 2017, after the plaintiff asked for time off to focus on her health, the firm (W & L Nevada), placed her on an indefinite leave of absence. She filed suit in the District Court of Clark County, Nevada. The firm removed it to federal court based upon federal question jurisdiction. The suit alleged violations of both the ADA as well as state law claims for breach of contract, breach of the implied covenant of good faith and fair dealing, retaliatory discharge, and unpaid wages. The district court granted summary judgment saying that the firm did not have 15 or more employees, and that the plaintiff did not present sufficient evidence to create a genuine issue of material fact whether the firm was an integrated enterprise with their offices in California. Plaintiff appealed.

 

IV

Court’s Reasoning Reversing and Remanding the District Court’s Grant of Summary Judgment Regarding Whether the Firm was an Integrated Employer

 

  1. The ADA applies to employers with 15 or more employees per 42 U.S.C. §12111(5)(A).
  2. The Ninth Circuit has held in analogous title VII cases that even when a defendant has fewer than 15 employees, a plaintiff can bring a statutory claim if she can establish that: 1) defendant is so interconnected with another employer so as to form an integrated enterprise; and 2) the integrated enterprise collectively has at least 15 employees.
  3. In the title VII context, there are four factors used to determine whether two entities are an integrated enterprise: 1) interrelation of operations; 2) common management; 3) centralized control of labor relations; and 4) common ownership OR (emphasis mine), financial control.
  4. The same factors have also been applied in the Ninth Circuit to the 20 employee threshold under the Age Discrimination in Employment Act.
  5. The statutory scheme and language of the ADA and title VII are identical in many respects. More particularly, the ADA, 42 U.S.C. §12111(5)(A), and title VII, 42 U.S.C. §2000e(b), both define employers to include only those entities with 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year. Further, title I of the ADA, 42 U.S.C. §12117, incorporates a remedial scheme identical to title VII. Finally, for purposes of determining whether an employer controls a corporation whose place of incorporation is a foreign country, both title VII and the ADA direct that courts consider the same factors the Ninth Circuit uses under the integrated enterprise test.
  6. For a long time, antidiscrimination statutes under title VII and the ADA have been analyzed in a parallel fashion. Since title VII and the ADA include the same 15 employee threshold and statutory enforcement scheme, the integrated enterprise doctrine applies equally under the ADA.
  7. With respect to interrelation of operations, plaintiff presented evidence that the two offices of the law firm shared a website and toll-free phone number, employees of both offices use the same email template footer which identified both offices, and both offices shared operational and administrative work, an IRS taxpayer identification number, and an employee roster. Further, the named partners were the only partners of the firm and managed both offices. They also managed all significant employment matters including hiring and firing of employees, employee discipline, performance evaluation, and scheduling and compensation.
  8. With respect to common financial control, there is no dispute that the named partners own both the Nevada and California firms. In a footnote, the court notes that the fourth factor of the integrated enterprise test addresses whether a plaintiff presents evidence of either common ownership or control, and not necessarily both. The court said that the district court erred in finding that the plaintiff had to establish both. Even so, the court believed that the plaintiff presented adequate evidence for a reasonable jury to find common ownership and financial control even if the plaintiff did not have to prove both.
  9. While the defendant did present some evidence that the Nevada and California offices were separate operations and maintain separate books, a jury could reasonably find that all four factors suggested an integrated enterprise when viewing the evidence in the light most favorable to the plaintiff.
  10. Defendant also argued that even if the Nevada and California branches of the firm were an integrated enterprise, they together had fewer than 15 employees. Since the district court did not address that argument, the matter was remanded back to the district court so it could consider that issue.

 

V

Thoughts/Takeaways

 

  1. Until reading the excellent law review article mentioned above, I simply always assumed that it was obvious what “transitory and minor,” meant. I should have remembered the very first day of contracts class taught by my favorite professor in law school, Prof. Frank Engfelt (I took every single class he taught. I am also eternally grateful for all the time he spent with me to make sure that I did the very best I could in his class. He is sorely missed, and I am glad that I could tell him what he meant to me prior to his death), when he wrote the word “assume,” on the board and then broke it down into three separate words. Accordingly, I believe it is essential that I clarify what I mean by “transitory and minor,” since I am always talking about it as an excellent preventive law approach. I still remain convinced that it is an excellent preventive law approach for figuring out when temporary disabilities are actual disabilities, but that preventive law approach only works within the narrow confines of how I define what, “transitory and minor” means as discussed in this blog entry.
  2. For the reasons stated by the Ninth Circuit, it makes perfect sense to me that the title VII integrated enterprise test would equally apply to the ADA. The test seems relatively straightforward to apply, though I am sure that will not always be the case.
  3. With respect to the fourth factor, plaintiffs have the opportunity to establish common ownership or control and do not have to establish both.
  4. It would seem to me that the vast majority of law firms with multiple offices would be integrated enterprises under the test set forth by the Ninth Circuit. It may depend upon the particular industry how likely multiple offices are to be considered integrated enterprises.
  5. As many of you know, one of the things that I’ve done in my career is that I spent a 12 year period teaching people full time how to be paralegals. I can tell you from personal experience that if you have a teacher who really made a difference for you, be sure to reach out to them. It simply doesn’t matter how long it has been since you may have done that, that teacher or professor will have their day, if not their year, made by you doing so. For example, in my case I had a former student reach out to me some 10 years after she had me for classes, I still haven’t forgotten that moment. I haven’t forgotten the other individuals that did the same either.

 

For those celebrating Easter next weekend, happy Easter. Also, for those in the midst of Ramadan, I hope that goes well as well. For those in the midst of Passover, I hope the rest of Passover, whatever that may mean for you, goes well.

Baseball season has started. Cleveland has a new name. Good luck to everyone with respect to their teams. My Braves are loaded as are the Chicago White Sox. The Chicago Cubs are in rebuilding mode I think. Good luck to everyone!

 

I actually have an embarrassment of riches with respect to cases to blog on. Currently, I probably have 10 really good cases in my pipeline worth blogging on with issues including: 1) what happens when a disability is not well controlled; 2) breakdown of interactive process; 3) what is a reasonable accommodation/the reasonable accommodation process and whether a probationary employee is covered by the ADA; 4) the police don’t have to use an ASL interpreter when a history exists with that particular individual of not using an ASL interpreter; 5) failure to accommodate an immunocompromised individual without unreasonable delay can lead to a wrongful death cause of action; 6) compulsory medical exams without cause being established first is not kosher; 7) morbid obesity does not require an underlying physiological condition and the catspaw theory of liability; 8) how do you go about figuring out an integrated employer; 9) a very narrow reading of reasonable accommodation requirements with respect to animals in the workplace; 10) and what is an adverse action and what is sufficient notice of the disability.

 

That said, this week’s blog entry is on none of those. Recently, on April 5, 2022, the Department of Justice released a guidance entitled, the Americans with Disabilities Act and the Opioid Crisis: Combating Discrimination against People in Treatment or Recovery. What I have done with this blog entry is reproduced that document in its entirety. Due to the cutting and pasting, the formatting is a bit different than what you will find here. For example, I made it clear where the footnotes begin. The numbers that you see are references to the footnotes. Finally, what I have done is reproduce the document exactly and then made clear when I am offering my own thoughts. If a section does not contain “my thoughts,” then I believe that section is self-evident and doesn’t really need any clarification or additional thoughts from me. So, the blog entry isn’t divided into usual categories.

 

 

The Americans with Disabilities Act and the Opioid Crisis: Combating Discrimination Against People in Treatment or Recovery

 

The opioid crisis poses an extraordinary challenge to communities throughout our country. The Department of Justice (the Department) has responded with a comprehensive approach prioritizing prevention, enforcement, and treatment. This includes enforcing the Americans with Disabilities Act (ADA), which prohibits discrimination against people in recovery from opioid use disorder (OUD) who are not engaging in illegal drug use, including those who are taking legally-prescribed medication to treat their OUD. This guidance document provides information about how the ADA can protect individuals with OUD from discrimination—an important part of combating the opioid epidemic across American communities. While this document focuses on individuals with OUD, the legal principles discussed also apply to individuals with other types of substance use disorders.

 

  • What is the ADA? The ADA is a federal law that gives civil rights protections to individuals with disabilities in many areas of life. The ADA guarantees that people with disabilities have the same opportunities as everyone else to enjoy employment opportunities,1 participate in state and local government programs,2 and purchase goods and services.3 For example, the ADA protects people with disabilities from discrimination by social services agencies; child welfare agencies; courts; prisons and jails; medical facilities, including hospitals, doctors’ offices, and skilled nursing facilities; homeless shelters; and schools, colleges, and universities.

 

My thoughts: it is simply too narrow to say that title III of the ADA only applies to purchasing goods and services. It goes far beyond that. First, the question is whether the entity is a place of public accommodation, which is any of the categories listed in 42 U.S.C. §12181(7). Second, there can be all kinds of accessibility problems with respect to title III of the ADA besides just purchasing goods and services. In fact, 42 U.S.C. §12182(a) states: “No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.”

 

2) Does an individual in treatment or recovery from opioid use disorder have a disability under the ADA?

 

Typically, yes, unless the individual is currently engaged in illegal drug use. See Question 5.

 

The ADA prohibits discrimination on the basis of disability.4 The ADA defines disability as (1) a physical or mental impairment that substantially limits one or more major life activities, 2 including major bodily functions; (2) a record of such an impairment; or (3) being regarded as having such an impairment.5 People with OUD typically have a disability because they have a drug addiction that substantially limits one or more of their major life activities. Drug addiction is considered a physical or mental impairment under the ADA.6 Drug addiction occurs when the repeated use of drugs causes clinically significant impairment, such as health problems and or an inability to meet major responsibilities at work, school, or home.7 People with OUD may therefore experience a substantial limitation of one or more major life activities, such as caring for oneself, learning, concentrating, thinking, communicating, working, or the operation of major bodily functions, including neurological and brain functions. 8 The ADA also protects individuals who are in recovery, but who would be limited in a major life activity in the absence of treatment and/or services to support recovery. 9

 

3) Does the ADA protect individuals who are taking legally prescribed medication to treat their opioid use disorder?

 

Yes, if the individual is not engaged in the illegal use of drugs. Under the ADA, an individual’s use of prescribed medication, such as that used to treat OUD, is not an “illegal use of drugs” if the individual uses the medication under the supervision of a licensed health care professional, including primary care or other non-specialty providers.10 This includes medications for opioid use disorder (MOUD) or medication assisted treatment (MAT). MOUD is the use of one of three medications (methadone, buprenorphine, or naltrexone) approved by the Food and Drug Administration (FDA) for treatment of OUD;11 MAT refers to treatment of OUD and certain other substance use disorders by combining counseling and behavioral therapies with the use of FDA-approved medications.12

 

Example A

 

A skilled nursing facility refuses to admit a patient with OUD because the patient takes doctor-prescribed MOUD, and the facility prohibits any of its patients from taking MOUD. The facility’s exclusion of patients based on their OUD would violate the ADA.

 

Example B

 

A jail does not allow incoming inmates to continue taking MOUD prescribed before their detention. The jail’s blanket policy prohibiting the use of MOUD would violate the ADA. 3

 

My Thoughts: I have two other examples, both involving DOJ recent actions just prior to releasing the guidance, which is why I wasn’t surprised to see this guidance get issued.

 

Example C (mine): Pennsylvania courts prohibit people from participating in treatment programs unless they abstain from drug use regardless of whether medication-based treatment, i.e. drugs under the supervision of a physician, is something working for them. See here.

 

Example D (mine): A state nursing board prohibits people from participating in its nursing assistance program because the individual takes medication for opioid use disorder. Such a requirement I might add is not unusual at all for professional recovery programs around the country. See here.

 

4) Does the ADA protect individuals with opioid use disorder who currently participate in a drug treatment program?

 

Yes. Individuals whose OUD is a disability and who are participating in a supervised rehabilitation or drug treatment program are protected by the ADA if they are not currently engaging in the illegal use of drugs.13 See explanation in Question 5. It is illegal to discriminate against these individuals based on their treatment for OUD.

 

Example C

 

A doctor’s office has a blanket policy of denying care to patients receiving treatment for OUD. The office would violate the ADA if it excludes individuals based on their OUD.

 

Example D

 

A town refuses to allow a treatment center for people with OUD to open after residents complained that they did not want “those kind of people” in their area. The town may violate the ADA if its refusal is because of the residents’ hostility towards people with OUD.

 

5) Does the ADA protect individuals who are currently illegally using opioids?

 

Generally, no. With limited exceptions, the ADA does not protect individuals engaged in the current illegal use of drugs if an entity takes action against them because of that illegal drug use.14 “Current illegal use of drugs” means illegal use of drugs that occurred 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.15 Illegal use, however, does not include taking a medication, including an opioid or medication used to treat OUD, under the supervision of a licensed health care professional.16

 

My thoughts: what is “not currently engaging in the illegal use of drugs,” can be very complicated as we discussed here.

 

 

Example E

 

A mentoring program requires its volunteers to provide test results showing that they do not engage in the illegal use of drugs. The program dismisses a volunteer who tests positive for opioids for which the volunteer does not have a valid prescription. This does not violate the ADA because the dismissal was based on current illegal drug use. 4 In addition, an individual cannot be denied health services, or services provided in connection with drug rehabilitation, on the basis of that individual’s current illegal use of drugs, if the individual is otherwise entitled to such services.17 But a drug rehabilitation or treatment program may deny participation to individuals who engage in illegal use of drugs while they are in the program.18

 

Example F

 

A hospital emergency room routinely turns away people experiencing drug overdoses, but admits all other patients who are experiencing emergency health issues. The hospital would be in violation of the ADA for denying health services to those individuals because of their current illegal drug use, since those individuals would otherwise be entitled to emergency services.

 

Example G

 

A drug rehabilitation program asks a participant to leave because that participant routinely breaks a rule prohibiting the use of illegal drugs while in the program. This is not discrimination under the ADA because the program can require participants to abstain from illegal drugs while in the program.

 

 

6) Does the ADA protect individuals with a history of past opioid use disorder, who no longer illegally use drugs?

 

Yes. The ADA protects individuals with a “record of” disability. As explained above in Question 2, OUD typically qualifies as a disability. Therefore, individuals with a “record of” having OUD usually will be protected under the ADA. 19 Individuals would fall into this category if they have a history of, or have been misclassified as having, OUD. 20

 

Example H

 

A city terminates an employee based on his disclosure that he completed treatment for a previous addiction to prescription opioids. The city may be in violation of the ADA for discriminating against the employee based on his record of OUD. 5

 

7) Does the ADA provide any legal protections for individuals who are regarded as having an opioid use disorder, whether or not they actually have an opioid use disorder?

 

Yes. The ADA protects individuals who are “regarded as” having OUD, even if they do not in fact have OUD. 21

 

Example I

 

An employer mistakenly believes that an employee has OUD simply because that employee uses opioids legally prescribed by her physician to treat pain associated with an injury. The ADA prohibits an employer from firing the employee based on this mistaken belief.

 

My thoughts: After the amendments to the ADA, a plaintiff only has to show they were regarded as having a physical or mental impairment for the regarded as prong to apply. A plaintiff does not have to show that they were regarded as having a substantial limitation on a major life activity.

 

8) Does the ADA protect individuals from discrimination based on their association with individuals who have opioid use disorder?

 

Yes. The ADA protects individuals from discrimination based on their known association or relationship with an individual who has a disability, such as a friend, coworker, or family member. The ADA also protects organizations, such as OUD treatment clinics, from discriminatory enforcement of zoning rules based on the organization’s known association with or relationship to individuals with OUD. 22

 

My thoughts: For title I and title III of the ADA, you can actually find statutory provisions prohibiting discrimination against those associating with someone with a disability. As the referencing footnote makes clear, title II of the ADA only has regulatory provisions on that but not statutory provisions. Case law has held that association discrimination does apply to title II of the ADA, such as here.

 

9) Can employers have a drug policy or conduct drug testing for opioids?

 

Yes. Employers may adopt or administer reasonable policies or procedures, including drug testing, designed to ensure that individuals are not engaging in the illegal use of drugs.23 However, some individuals who test positive for an opioid, which may include MOUD, will be able to show that the medication is being taken as prescribed or administered and a licensed health care professional is supervising its use. These individuals may not be denied, or fired from, a job for this legal use of medication, unless they cannot do the job safely and effectively, or are disqualified under another federal law.24

 

10) What can I do if I believe I have been discriminated against because of my opioid use disorder or treatment for my opioid use disorder?

 

Individuals may file a complaint with the Department of Justice if they believe that a public accommodation or a state or local government is discriminating or has discriminated against them because of OUD. Individuals may also bring private lawsuits under the ADA. 6 Information about filing an ADA complaint with the Department is available at civilrights.justice.gov. More information about the ADA is available by calling the Department’s toll-free ADA information line at 800-514-0301 or 800-514-0383 (TTY), or accessing its ADA website at ada.gov. Complaints about a state or local government’s programs, services, or activities relating to the provision of health care and social services can also be filed with the Department of Health and Human Services Office for Civil Rights (HHS OCR). Information about filing an HHS OCR complaint is available at hhs.gov/civil-rights/filing-a-complaint, by email at OCRMail@hhs.gov, by phone at 1-800-368-1019, or at 1-800-537-7697 (TTY). Complaints about employment discrimination (called “charges”) on the basis of disability can be filed with the Equal Employment Opportunity Commission (EEOC). Information about filing an EEOC charge is available at eeoc.gov or 800-669-4000, 800-669-6820 (TTY), or 844-234-5122 (ASL Video Phone). Additional EEOC resources regarding employees and opioid use are available at eeoc.gov/laws/guidance/use-codeine-oxycodone-and-other-opioids-informationemployees and eeoc.gov/laws/guidance/how-health-care-providers-can-help-current-andformer-patients-who-have-used-opioids. Individuals who believe they have been discriminated against under the ADA and would like to file a complaint should file as soon as possible. For instance, there are specific filing deadlines for a charge of employment discrimination, either 180 days or 300 days from the date of the alleged discrimination, depending on the jurisdiction where the charge is filed.

 

My thoughts:

  • Exhaustion of administrative remedies is not required for title II and III matters (title I does require exhaustion with the EEOC), but if you do go the route of DOJ, remember the statute of limitations keeps running because exhaustion is not required;
  • This guidance is absolutely huge for two reasons. First, it shows that the DOJ is watching. Second, many professional recovery programs, especially for healthcare professionals, insist on abstinence as a condition of participating in those programs. Working with licensing counsel to help them represent individuals who find themselves in such situations has become an increasingly large part of my practice over the last couple of years. If such an individual does not do what is required by the professional recovery program, there are licensing discipline issues that arise. Those professional recovery programs are now going to have to strongly reconsider abstinence only requirements.

 

11) Where can I find treatment for opioid use disorder?

 

Information about treatment for opioid use disorder is available at hhs.gov/opioids, findtreatment.gov, samhsa.gov/medication-assisted-treatment/practitioner-programdata/treatment-practitioner-locator, and dpt2.samhsa.gov/treatment. Date issued: April 5, 2022

 

Footnotes:

My thoughts: I checked the footnotes, and they do support the particular referenced statement within the body of the document.

 

1 42 U.S.C. §§ 12111-12117. The Equal Employment Opportunity Commission (EEOC) and the Department of Justice jointly enforce the ADA’s ban on employment discrimination. For more information or to file a complaint of employment discrimination, visit eeoc.gov.

 

2 Id. §§ 12131-12134. 7

 

3 Id. §§ 12181-12189.

 

4 Id. §§ 12112, 12132, 12182.

 

5 Id. § 12102(1)-(2).

 

6 28 C.F.R. §§ 35.108(b)(2), 36.105(b)(2). Regulations implementing Title I of the ADA define the term “physical or mental impairment” as including “any physiological disorder or condition.” 29 C.F.R. § 1630.2(h).

 

7 See Substance Abuse and Mental Health Services Administration, Mental Health and Substance Use Disorders, samhsa.gov/find-help/disorders (last visited Apr. 1, 2022).

 

8 42 U.S.C. § 12102; 28 C.F.R. §§ 35.108(c)(1) (listing examples of major life activities, which include the operation of major bodily functions), 36.105(c)(1) (same).

 

9 28 C.F.R. §§ 35.108(d)(1)(viii), 36.105(d)(1)(viii).

 

10 42 U.S.C. § 12210(d); 28 C.F.R. §§ 35.104, 36.104.

 

11 See Substance Abuse and Mental Health Services Administration, TIP 63: Medications for Opioid Use Disorder, store.samhsa.gov/product/TIP-63-Medications-for-Opioid-Use-Disorder-Full-Document/PEP21-02-01-002 (last visited Apr. 1, 2022); see also Health Resources and Services Administration, Caring for Women with Opioid Use Disorder: A Toolkit for Organization Leaders and Providers, hrsa.gov/sites/default/files/hrsa/Caring-for-Womenwith-Opioid-Disorder.pdf (last visited Apr. 1, 2022).

 

12 See Substance Abuse and Mental Health Services Administration, Medication-Assisted Treatment (MAT), samhsa.gov/medication-assisted-treatment (last visited Apr. 1, 2022); see also Substance Abuse and Mental Health Services Administration, MAT Medications, Counseling, and Related Conditions, samhsa.gov/medication-assistedtreatment/medications-counseling-related-conditions (last visited Apr. 1, 2022).

 

13 42 U.S.C. § 12210(b)(2); 28 C.F.R. §§ 35.131(a)(2)(ii), 36.209(a)(2)(ii).

 

14 42 U.S.C. § 12210(a); 28 C.F.R. §§ 35.131(a)(1), 36.209(a)(1).

 

15 28 C.F.R. §§ 35.104, 36.104.

 

16 42 U.S.C. § 12210(d); 28 C.F.R. §§ 35.104, 36.104.

 

17 42 U.S.C. § 12210(c); 28 C.F.R. §§ 35.131(b)(1), 36.209(b)(1).

 

18 28 C.F.R. §§ 35.131(b)(2), 36.209(b)(2).

 

19 42 U.S.C. § 12102(1)(B); 28 C.F.R. §§ 35.108(a)(1)(ii), 36.105(a)(1)(ii).

 

20 42 U.S.C. § 12102(1)(B); 28 C.F.R. §§ 35.108(e), 36.105(e).

 

21 42 U.S.C. § 12102(1)(C); 28 C.F.R. §§ 35.108(a)(1)(iii), 35.108(f), 36.105(a)(1)(iii), 36.105(f); see also 42 U.S.C. § 12201(h); 28 C.F.R. §§ 35.130(b)(7)(ii), 36.302(g); 29 C.F.R. § 1630.2(o)(4) (noting that individuals who meet the definition of “disability” solely because they are “regarded as” disabled are not entitled to reasonable modifications or reasonable accommodations under the ADA).

 

22 42 U.S.C. § 12112(b)(4); 42 U.S.C. § 12182(b)(1)(E); 28 C.F.R. §§ 35.130(g), 36.205; 29 C.F.R. § 1630.8.

 

23 42 U.S.C. §§ 12114(b), 12114(d); 29 C.F.R. §§ 1630.3(c), 1630.16(c); see also 42 U.S.C. § 12210(b); 28 C.F.R. §§ 35.131(c), 36.209(c) (drug testing by Title II and Title III entities).

 

24 See, e.g., 42 U.S.C. § 12111(3); 29 C.F.R. §§ 1630.2(r), 1630.15(b)(2), 1630.15(e). 8

 

The Americans with Disabilities Act authorizes the Department of Justice to provide technical assistance to individuals and entities that have rights or responsibilities under the Act. This document provides informal guidance to assist you in understanding the ADA and the Department’s regulations. The contents of this document do not have the force and effect of law and are not meant to bind the public in any way. This document is intended to provide clarity to the public regarding existing requirements under the law or Department policies.

 

My thoughts: The statement that appears under the footnotes is necessary as a result of Kisor v. Wilkie, which we discussed here. In my opinion, this particular guidance would be one likely to get Auer deference even after Kisor.

 

On April 21, 2021, I came across a document entitled an, “alcohol use disorder bench card.” The logos on the document are from SoberLink and from NCJFCJ, the National Council of Juvenile and Family Court judges. The logos had me fearing the worst, but when you look at the document itself it is not too bad. The document can be found here. My only worry is that in the very last diagram there is no suggestion of evidence-based treatment, which may or may not be a problem in light of this guidance discussed in this blog entry. I did find the alcohol addiction myths section  excellent. Those myths easily translate over to substance use disorder.

Consider the same set of facts. Title III’s final implementing contain requirements for hotels to post the availability of accessible hotel rooms, 28 C.F.R. §36.302(e), (don’t get me started on how hotels deal with rooms for Deaf, deaf and HOH customers). Two individuals are self avowed testers that visit websites of hotel to see if the hotels meeting those regulatory requirements. Neither has any intention of visiting those hotels or has any personal need for the information missing from the websites. When they find a hotel that does not meet the regulatory requirements, they bring suit. What result? The two cases that we will discuss have results completely opposite of each other and cannot be reconciled. The 11th Circuit in Laufer v. Arpan, here, holds with three different opinions that the plaintiff has standing in this case. On the other hand, the Second Circuit in Harty v. West Point Realty Inc., here, unanimously holds that the plaintiff lacked standing. We will discuss both. As usual, the blog entry is divided into categories and they are: Opinion for the Laufer court (Judge Newsom); Judge Jordan concurring opinion; Judge Newsom concurring opinion; Harty Court’s Reasoning; Can Havens Realty be reconciled with TransUnion/my thoughts; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Opinion for the Laufer Court (Judge Newsom)

 

  1. Whether an intangible harm is sufficient for concreteness, involves exploring whether the alleged injury bears a close relationship to the harm traditionally recognized as providing a basis for lawsuits in American courts. Congressional judgment is instructive and important in that respect because Congress is well-positioned to identify intangible harms meeting Article III requirements.
  2. A reviewing court has to independently decide whether a plaintiff has suffered a concrete harm under Article III because Congress cannot use its lawmaking power to transform something that is not remotely harmful into something that is (see our discussion of the TransUnion case, here).
  3. In Sierra, which we discussed here, the 11th Circuit held that a culturally deaf individual suffered a concrete stigmatic injury when he could not understand videos a city posted on its official website for which it refused to provide closed captioning.
  4. An individual who suffers an intangible injury from discrimination does have standing if he personally experiences the discrimination.
  5. Discrimination itself through the perpetuation of archaic and stereotypic notions thereby stigmatizing members of the disfavored group as innately inferior can cause serious non-economic injuries to those persons denied equal treatment solely because of their membership in the disfavored group.
  6. In the 11th Circuit, a plaintiff can recover damages for emotional distress for a violation of §504 of the Rehabilitation Act.
  7. Emotional injury resulting from illegal discrimination is sufficient to constitute a concrete injury as it is a concrete harm existing in the real world.
  8. The Supreme Court has affirmed that discriminatory treatment in some shape or form is a concrete de facto injury that Congress may elevate to the status of a legally cognizable injury.
  9. Allegations that plaintiff suffered frustration and humiliation and a sense of isolation and segregation is adequate for pleading a concrete stigmatic injury. That is, her emotional injury is her emotional injury that affects her and a personal and individual way and is therefore sufficiently particularized.
  10. While the pleadings are adequate to proceed forward, that is a different kettle of fish from whether as a factual matter plaintiff has shown that she suffered the requisite frustration and humiliation as a result of viewing the websites. It will be up to the district court to figure that out, and it may conduct an evidentiary hearing to do that. Further, it will be for the district court to figure out whether an imminent future injury is involved as well as whether the traceability and redressability requirements are satisfied.
  11. The court took no position with respect to whether plaintiff properly alleged an informational injury as it did not feel necessary to visit that question in light of its decision on stigmatic injury.

 

II

Judge Jordan Concurring Opinion

 

  1. Plaintiff has alleged sufficient facts for an informational injury.
  2. The United States Supreme Court has previously ruled in Havens Realty Corp. that testers have standing to sue with respect to the Fair Housing Act, here (see also V below).
  3. The 11th Circuit has applied that Havens Realty to allow for standing in a title III matter with respect to architectural barriers as title III antidiscrimination and right of action provisions are similar to the Fair Housing Act provisions at issue in the Supreme Court decision upholding tester standing.
  4. In a footnote, Judge Jordan notes that the 10th and Ninth Circuits have also applied Havens Realty to allow for tester standing under title II as well with title III of the ADA.
  5. The District Court confused standing with the merits of the claim with respect to whether the plaintiff has a substantive right to have certain information disclosed.
  6. Where a person is entitled under federal law to information on certain topics and no information is provided, that information has been kept or withheld from the person.
  7. Havens Realty held that depriving someone of information to which one is legally entitled constitutes a cognizable injury under Article III of the U.S. Constitution.
  8. The 11th Circuit has previously held that a plaintiff suffers an injury in fact when the plaintiff fails to obtain information that must be publicly disclosed pursuant to a statute.
  9. Requiring the plaintiff to call the hotel to find out everything she wanted to find out is an additional burden that 28 C.F.R. §36.302(e)(1)(ii) is designed to avoid. That regulation specifically provides that individuals with disabilities should be able to make reservation for accessible guest rooms in the same manner as individuals who do not need accessible guest rooms.
  10. It wasn’t Congress’ intention in enacting the Fair Housing Act to require individual to expend extra energy to acquire accurate information that the individual is legally entitled to and the ADA is no different.
  11. It is difficult to understand why the accessibility information missing from the hotel’s website is not relevant to a person with a disability who is acting as a tester to ensure compliance with the ADA. After all, a Fair Housing Act tester has no intention of actually renting from that particular landlord and yet the Fair Housing Act tester was held to have standing in Havens Realty.
  12. The ADA’s antidiscrimination provisions states that no individual shall be discriminated against on the basis of disability, 42 U.S.C. §12182(a), and when it comes to prohibited activities, “no individual” is the same as, “any person.” That is to say, “no individual,” and “any person,” are broad terms necessarily encompassing testers.
  13. There is no difference between being provided the wrong information in violation of federal law and being denied the information entirely in violation of federal law when it comes to establishing a cognizable injury.
  14. The plaintiff in Havens Realty did not need to allege downstream consequences in order to establish injury, so it is hard to imagine why the plaintiff in this case needs to do so.
  15. Harty, to be discussed below, doesn’t add up because how is a self-proclaimed tester seeking to ensure ADA compliance any different than a self-proclaimed tester seeking to ensure compliance with the Fair Housing Act. There aren’t any court decisions that answer that question persuasively. So, the 11th Circuit is bound to follow Havens Realty, which allowed tester standing.
  16. Havens Realty rested in part on the notion that an injury in fact can exist simply by virtue of the violation of a statutory right (see also V below). However, the Supreme Court seems to be headed in a different direction. Nevertheless, Havens Realty remains on the books and therefore, has to be followed.
  17. Even if you assume that downstream consequences are required, stigmatic harm works for that purpose.

 

III

Judge Newsom Concurring Opinion

 

  1. The Supreme Court has said that in determining whether an intangible harm results in an injury in fact, both history and the judgment of Congress have to play important roles.
  2. In a pair of decisions issued nearly 40 years ago, the Supreme Court recognized that discrimination could give rise to a stigmatic injury sufficient to confer Article III standing.
  3. In light of recent Supreme Court opinions, the place of stigmatic injury is confusing. That is, it simply isn’t clear how and under what conditions the stigmatic injury survives as a basis for standing under Spokeo/TransUnion.
  4. TransUnion says that courts should not automatically equate statutory violation with concrete injuries and it is unclear whether statutory violations need to have downstream effects so as to justify standing.
  5. The rest of Judge Newsom’s concurring opinion is devoted to Judge Newsom’s view that there are two defensible historical approaches to Article III case or controversy requirement but TransUnion is not one of them. The two approaches are: 1) a case exists whenever the plaintiff has a cause of action; and 2) only the particular common-law causes of action existing at the time of the founding fathers, 1787, can serve as a valid analog for modern-day Article III cases. He also argues, as he did in Sierra, that Congress cannot give anyone else, including private parties, a right to sue on behalf of the community and seek a remedy accruing to the public, as the ADA does if it allows tester standing. In a tester case, the tester literally manufactures her own standing by bringing herself to the source of her own injury. Accordingly, that violates Article II the Constitution because it is exactly the type of proactive enforcement discretion properly reserved to the executive branch. For example, the plaintiff in this case exercises executive style enforcement discretion by freely choosing how vigorously the law should be enforced by deciding whether to bring one lawsuit, a dozen, or even hundreds. There isn’t even an external check on that choice. There is no limit to the number of defendants that a tester can investigate, decide to sue, and then obtain the necessary redress from except for her and her attorneys time, will, and money. Those are precisely the kinds of decisions made by executive branch officials and can’t be delegated to private parties under Article II of the Constitution.

 

IV

Harty Court’s Reasoning

 

  1. Three things must be established for a plaintiff to have article III standing: 1) an injury in fact; 2) a causal connection between his injury and the conduct complained of; and 3) the injury will be addressed by a favorable judicial decision.
  2. Any injury must be particularized and concrete. Particularized injuries affect the plaintiff in a personal and individual way, while concrete injuries are physical, monetary, or cognizable intangible harms traditionally recognized as providing a basis for a lawsuit in American courts.
  3. In TransUnion, the Supreme Court said that a plaintiff has standing to bring a claim for monetary damages following a statutory violation only when he or she can show a current or past harm beyond the statutory violation itself.
  4. TransUnion now makes clear that the material risk standards applies only with respect to injunctive relief and that in a suit for damages, mere risk of future harm, standing alone, cannot qualify as a concrete harm.
  5. Plaintiff does not allege anywhere in his complaint that he was using the website to arrange for future travel. In fact, he acknowledges that the review of the website was strictly done in his capacity as a tester and not as a prospective traveler seeking a wheelchair accessible hotel in West Point.
  6. Article III grants federal courts the power to redress harms that defendants caused plaintiff’s and not a freewheeling power to hold defendants accountable for legal infractions.
  7. Since the Plaintiff asserted no plans to visit West Point or the surrounding area, plaintiff cannot allege that his ability to travel was hampered by the website in a way that caused him concrete harm.
  8. Plaintiff’s request for injunctive relief fares no better because allegations that he intends to return to the website and utilize the website to reserve a guest room is not sufficiently imminent to create an injury in fact. Someday intentions, without any description of concrete plans, do not support a finding of actual or imminent injury per Article III.
  9. The informational injury claim fares no better because plaintiff has to allege downstream consequences of failing to receive the required information and has not done so. That is, plaintiff has to show that he has an interest in using the information beyond bringing the lawsuit.
  10. Plaintiff’s complaint does not specify how the website violated ADA regulations or how those alleged violation discriminated against disabled people.
  11. Even if the ADA labeled all violations of the ADA and its implementing regulations that discrimination, which it doesn’t do, TransUnion makes clear that a statutory violation alone is no longer sufficient for Article III standing.
  12. Dismissing a case with prejudice is an entirely different matter than dismissing a case without prejudice without leave to amend. The court was perfectly correct in dismissing the case without prejudice denying leave to amend rather than dismissing the case with prejudice.
  13. In a footnote, the court notes that while testers can have standing, even testers have to show that they suffered an Article III injury in fact.

 

V

Can TransUnion Be Reconciled?/My Thoughts (§ added April 13, 2022)

 

Richard Hunt frequently blogs on standing. In one of his blog entries on this case, he takes the position that Havens Realty cannot be reconciled with TransUnion. Richard may very well have a point. However, I wanted to see if it was possible for Havens Realty to survive after TransUnion, and so here goes. Keep in mind that the Supreme Court rarely likes to explicitly overrule prior decisions. Instead, they overrule it without saying so. So, let’s see from looking at the reasoning of the opinion in Havens Realty, which was unanimous by the way, if we can distinguish Havens Realty. Two statements from the unanimous opinion and one statement from the concurring opinion are critical for seeing how Havens Realty might be distinguished from TransUnion and they are:

 

  1. A tester who has been the object of a misrepresentation made unlawful under §804(d) has suffered injury in precisely the form the statute was intended to guard against, and therefore has standing to maintain a claim for damages under the act’s provisions.
  2. Footnote 14: Congress’ decision to confer a broad right of truthful information concerning housing availability was undoubtedly influenced by congressional awareness that the intentional provision of misinformation offered a means of maintaining segregated housing. Various witnesses testifying before Congress recounted incidents in which black persons seeking housing were falsely informed that housing was not available.
  3. Justice Powell, concurring: distinct and palpable injury remains a minimal constitutional requirement for standing in a federal court.
  4. My thoughts: There are ways for Havens Realty to still be good law even after TransUnion. The first way is to find that a hotel website  ADA tester does not have standing while a Fair Housing Act tester does is to say that the Fair Housing Act contains an explicit statutory provision whereas the ADA does not. The hotel disclosure rules are in the title III final implementing regulations and are not statutory. Second, distinct and palpable injury still remains the minimum standard. Third, title III of the ADA does not allow for damages. So therefore, emotional distress of the kind faced by a tester is not sufficient to justify standing. Finally, even if Cummings winds up holding that emotional distress damages are available under §504 of the Rehabilitation Act, that kind of emotional distress quite arguably differs from the emotional distress suffered by a tester who willingly brings a lawsuit upon themselves.

 

VI

Thoughts/Takeaways

 

  1. There is clearly a circuit court split that cannot be reconciled. I fully expect this issue to come before the Supreme Court, perhaps from Arpan seeking review. It will be interesting to see how the Supreme Court reconciles tester standing with tester standing under the ADA and its recent jurisprudence with respect to standing. If it does go to the Supreme Court, I would expect Laufer to lose with the only question being how and what it means for persons with disabilities in the future.
  2. Richard Hunt blogged on this as well, here, and I commend it to your reading. He and I have been back channeling. An argument that he makes is that title III of the ADA simply does not allow for damages of any kind. So, how could stigmatic injury be sufficient for standing when the ADA itself does not allow for damages for that kind of injury when it comes to title III. My question back to him was the Supreme Court is likely to allow for emotional distress damages under §504 of the Rehabilitation Act in Cummings, discussed here, and whether that would change the analysis. His response was that it certainly moves things closer to justifying standing for §504 cases but is the kind of injury suffered by a tester the same kind of emotional distress suffered by someone personally impacted by the discrimination in a situation not involving a testing paradigm, i.e. a tester without more-a demonstrated desire to take advantage of the goods and services of a place of public accommodation- is arguably not personally denied equal treatment by the discriminatory conduct. After all, a tester as Judge Carnes noted in his concurring opinion, willingly invites a lawsuit. Also, allowing for emotional distress damages in §504 cases does not affect the title III remedies paradigm at all.
  3. We discussed TransUnion previously, as noted above, one thing that struck me as strange about its paradigm was basic separation of powers principles. That is, the legislature makes the law, the judiciary interprets it, and the executive branch enforces it. So, having independent review of standing above and beyond a statutory violation seems to cross into legislative nullification, or being a super legislature, in a way.
  4. Tester standing is perfectly okay under the Fair Housing Act, why isn’t it okay under title III of the ADA? (but see V).
  5. The back-and-forth I have been having with Richard Hunt makes a great deal of sense. It is hard to understand how emotional injury can justify standing if it isn’t the kind of relief that you can get from a lawsuit.
  6. With respect informational injury, what downstream consequences are sufficient to justify standing remains to be worked out.
  7. Judge Newsom’s argument about how testers and particularly serial plaintiffs set up a violation of Article II of the U.S. Constitution is one that he has talked about before and will be interesting to see if any courts take him up on that argument.
  8. Not every final implementing regulation allows for a private cause of action. It depends upon how close that final regulation is to the actual statute. Here, it isn’t the ADA that requires disclosures by the hotel, rather it is the final implementing regulations for title III of the ADA that requires the disclosures.
  9. Transunion was a 5-4 decision. Soon to be Justice Brown-Jackson will be replacing Justice Breyer shortly. It will be interesting to see how TransUnion plays out depending upon its context.
  10. When I was back channeling with Richard Hunt, he came up with some interesting ideas as to how to stop this massive serial litigation over internet accessibility but yet get accessibility for people with disabilities. His ideas included: A)Websites created after x date must meet WCAG 2.1 AA; B). Websites created before x date must be brought into compliance with WCAG 2.1 AA within 24 months to the extent it is readily achievable; C). All websites must meet WCAG 2.1AA in 48 months; D).DOJ require that website vendors sell accessible websites except for items under end user control. WordPress, Tumblr, and others would be treated as operators of websites they host, which would incentivize them to create accessible websites; E). Website owners would be permitted to sue 3rd party website operators for indemnity in any lawsuit brought against the owner. Once again, that incentivizes the party with sufficient expertise and control to make the website accessible;
  11. All of Richard’s ideas are very good ideas (§10(E) might require legislation). I would add that there should also be a provision that WCAG compliance should not trump meaningful accessibility.
  12. Prof. Emeritus of Nova Southeastern Law School, Michael Masinter, pointed out to me the reason for the confusion of how Judge Newsom actually writes the opinion for the court as well as a concurrence, which is a bit unusual. Prof. Masinter pointed out that Judge Newsom had no other choice but to do it that way because he can’t challenge Supreme Court paradigms in a majority opinion/opinion for the court. He can only challenge it through a concurrence. Thanks you!! Prof. Masinter.

 

 

 

 

 

 

 

 

 

 

 

Before getting started on the blog entry of the day, I do want to give a shout out to CODA, which won a best supporting actor, a best adapted screenplay, and best picture at the Academy Awards. As a small d deaf proud person in a deaf and hoh proud (daughter also wears hearing aids), household, I am beyond thrilled. I hope it means more persons with disabilities actually get a chance to be a part of the industry both in front of the camera and behind it and that more persons with disabilities get a chance to play roles portraying persons with disabilities.

 

The case of the day is one we have blogged on twice already. The case is Cushing v. Packard, which we discussed here and here. If you recall from that discussion, the district court decided that legislative immunity trumps everything. A panel of the First Circuit decided that was not the case. It was then heard en banc and decided, here, by the First Circuit (just five judges), and the majority opinion says that legislative immunity does trump everything. Since we have blogged on this case already twice before, I felt compelled to blog on this decision as well. As usual, the blog entry is divided into categories and they are: Judge Barron’s majority opinion; Judge Thompson’s dissenting opinion; and thoughts/takeaways. The decision was 3-2 with Judges Barron, Howard, and Lynch in the majority and Judges Thompson and Kayatta dissenting. The question before the court was whether title II of the ADA or §504 Rehabilitation Act authorizes a federal court to resolve the dispute among members of the state legislative body about whether voting on bills may be done remotely rather than in person.

 

I

Judge Barron’s Majority Opinion Holding That Legislative Immunity Trumps Just about Everything

 

  1. The privilege of legislators to be prevented from being sued is to enable and encourage a representative of the public to discharge a public trust with firmness and success. That is, the reason to keep government officials immune from deterrence to the uninhibited discharge of their legislative duties if not for their private indulgences but for the public good.
  2. Legislative immunity can be asserted against claims seeking only declaratory or prospective relief as well as damages because it exists to protect those engaged in legislative activities from the burdens of defending against the suit and not merely being held liable in one.
  3. Plaintiffs complaint clearly sought redress from the Speaker of the House and not the state. Also, for a variety of reasons, the Speaker of the House cannot be equated with the state. These reasons include: 1) a suit brought against a state officer in their official capacity is not the same thing as a suit against the state; 2) the complaint itself did not go after the state but only the Speaker of the House; 3) suits against officers in their official capacity are not the same as suits against the state because a suit against the state implicates 11th amendment sovereign immunity while official capacity suits do not; and 4) just because title II of the ADA covers public entities that does not transform this case into a suit against the state.
  4. The Supreme Court has held that legislative immunity can be asserted as a defense in an official capacity suit.
  5. While the Supreme Court has talked about municipal corporations not having available to it immunity available to local officials under §1983, they have never reached a similar conclusion with respect to suits against states or against state agents in their official capacities.
  6. That the legislature is covered by §504 of the Rehabilitation Act does not transform the case into a suit against the state either.
  7. While a legislative body appears to be a title II entity, it still gets the ability to assert legislative immunity.
  8. If Congress wanted to abrogate legislative immunity it could have explicitly done so. Just because it explicitly abrogated sovereign immunity in the ADA does not mean that it intended to abrogate legislative immunity. You need explicit abrogation wording for either or both. That is, common law principles of legislative immunity are incorporated into the judicial system and they should not be abrogated absent clear legislative intent to do so. Any general language that might be found in the statute suggesting that legislative immunity is abrogated is simply not good enough; it has to be explicit.
  9. The ADA makes no express reference to legislatures or legislators.
  10. Title II of the ADA does not indicate any intent by Congress to deal with these subtle considerations of the mixture of legislative or executive duties with the political facts of life.
  11. While plaintiffs claim no legislative act is involved, voting is a legislative act.
  12. While legislative immunity does not attach to the activities that are merely casually or tangentially related to legislative affairs, determinations about the procedure governing the means by which House members may cast votes are not so easily characterized that way. Further, the injunctive relief plaintiffs seek is relief that must run against a state legislator directly to be effective.
  13. The scope of legislative immunity is not dependent upon immunity that a particular state itself recognizes under its own law.
  14. Just because a statutory violation is involved, that does not mean it rises to the extraordinary circumstances necessary for the exception to legislative immunity to apply.
  15. The challenged conduct does not on its face target any class of legislators because it involves adhering to existing rules rather than making new ones.
  16. The extraordinary circumstances test for getting around legislative immunity has to be set at a high level because otherwise you may get federal judges improperly intruding into internal state legislative affairs. You also will get partisan battles whereby partisan state legislators improperly enlist federal judges to participate in them.
  17. Congress is better suited to explicitly waive legislative immunity than are the courts to do it on a piece by piece basis.

 

II

John Thompson’s Dissenting Opinion

 

  1. The majority opinion effectively disenfranchises thousands of New Hampshire residents simply because the representatives are persons with disabilities.
  2. The majority opinion immunizes any legislative role that does not on its face target any class of legislators, which is a standard so broad as to immunize race and religious-based discrimination as well.
  3. The majority opinion opens the floodgates to potential abuse and spells a recipe for disaster in the future.
  4. The speech or debate clause in the Constitution was intended to be for the benefit of the people and not their representatives.
  5. While legislative immunity was necessary for the separation of powers, the true driving goal was representation of the public.
  6. Early courts acknowledged that the people were careful in providing privileges to their legislators that would not unreasonably prejudice the rights of private citizens.
  7. Modern courts have also recognized that legislative immunity is not a personal privilege, i.e. not directed to the benefit of the legislators themselves.
  8. The purpose of legislative immunity is not to prevent judicial review of legislative actions but to ensure that legislators are not distracted from or hindered in the performance of their legislative task by being called into court to defend their actions.
  9. The Supreme Court has never addressed a case where it held that the extraordinary character exception to legislative immunity applies. It has said that the clause should not be extended so as to privilege illegal or unconstitutional conduct beyond that essential to foreclosing executive control of legislative speech or debate and associated matters, such as voting and committee reports and proceedings.
  10. It is contradictory to think that legislative immunity can protect some legislators decisions to effectively preclude other legislators from discharging their duties. The majority opinion leaves some people without their voice in representative government.
  11. What benefit do the people gain in immunizing their own disenfranchisement?
  12. The removal of a representative from his or her official duties in the face of an arrest, process, or subpoena, and the resulting loss of the voice for those he or she represents is an evil admitting of no comparison.
  13. The Supreme Court has never addressed any case in which a legislature has sought to exclude legislators based upon federal statutory really protected characteristics.
  14. In a footnote, the dissenting judge says that the legislative acts involved here has only one cause behind them, namely discrimination against a person’s statutorily protected disability. That is a far cry from removing a legislator because of nefarious activities jeopardizing the public trust in the office.
  15. At oral argument, the State admitted that if the state legislature excluded a legislator on racial or other clearly unconstitutional grounds, the federal or state judiciary would be justified in testing the exclusion by federal constitutional standards. That was a correct position taken at oral argument because the consequences of not conceding at least some level judicial review to the exclusion of a duly elected representative are staggering. Such a situation would permit legislative immunity, which is designed to safeguard representative democracy, to be weaponized against the representation it is meant to support.
  16. While the majority opinion essentially says that discrimination on the basis of disability is inconsequential, Congress certainly disagrees: 1) Congress enacted the ADA to provide a clear and comprehensive national mandate for the elimination of discrimination against persons with disabilities; 2) the ADA came in response to Congress’s finding that many people with physical or mental disabilities have been precluded from participating in all aspects of society because of discrimination on the basis of their disability; 3) persons with disabilities as a group occupy inferior status in society; 4) Congress found that individuals with disability continually encounter various forms of discrimination, including the discriminatory effects of overprotective rules and policies, failure to make modification to existing facilities and practices, exclusionary qualification standards and criteria, segregation, and relegation to lesser services, program, activity, benefits, jobs, or other opportunities.
  17. The majority opinion says that legislative rules subverting the ADA and discriminating against the disabled are simply not extraordinary enough even though: 1) Congress explicitly found that people with disabilities were systematically discriminated against and enacted a law meant to put those individuals on equal footing; 2) Congress thinks that discrimination is a serious and pervasive social problem; and 3) Congress passed the ADA with a seeming intent to reject the Supreme Court’s refusal to consider disability as a suspect classification akin to race (the dissent notes in a footnote that the discrete and insular language that originally appeared in the ADA was taken out of the amendments. However, the dissent correctly points out that the reason the insular and discrete finding was taken out was because the courts were using it to narrow the scope of the ADA rather than expand it).
  18. The Supreme Court has repeatedly expressed a skeptical eye towards applying legislative immunity to legislative actions that effectively remove certain constituents representative power in the government.
  19. The logistical issues claimed by the Speaker of the House have been a moving target and don’t make any sense. So, there is no grave legislative concern in pushing the scale in favor of legislators with disabilities being able to fulfill their duties and allowing them to serve the people who elected them.
  20. It is extraordinary to remove a legislator from representing the people who elected them.
  21. Plaintiffs never waived the extraordinary character/circumstances argument.
  22. The First Circuit has previously said that a legislature that votes to allow access to a chambers to members of only one race or two followers of one religion might veer into the orbit of the extraordinary character exception and disability should be treated no differently.
  23. The court opened the floodgates to a host of rules designed to oust various subsets of legislators based on a host of protected characteristics just so long as other legislators are clever enough to craft them in an ostensibly neutral way. Such rules include possibly:

 

  • A rule prohibiting the use of any electronic devices on the voting floor, but a member needs a hearing aid;
  • A rule that all members must stand to address the legislative body, but one of the members is wheelchair bound;
  • A rule prohibiting service animals from entering the floor during a session, but a member requires one;
  • A rule prohibiting a sign-language interpreter from entering the floor during a session of the body, but a member requires an interpreter.
  • A rule prohibiting a representative from wearing any headwear,27 but certain members adhere to a religion that requires doing so28;
  • A rule prohibiting facial hair, but certain members’ religions prohibit them from shaving;
  • A rule requiring that all sessions be held on Saturday mornings, but some members are Jewish and observe Shabbat.

According to the majority, absolute legislative immunity would apply in all of the situations because none of these rules take aim at any class of legislators.

 

  1. The distinction between adhering to existing rules rather than making new rules makes absolutely no sense because it fails to explain why the court should turn a blind eye to discrimination simply because it is based upon an established practice within a legislative chamber. Such a rule also fails to explain how the adherence to a pre-existing rule somehow lessens the potential for nefarious intent compared to a choice to enact the new rule.
  2. According to the majority opinion, representatives in the United States House of the Muslim faith would have no recourse when it came to wearing a religious headscarf because the U.S. House had a rule in place to disallow head coverings on the house floor. Similarly, the current New Hampshire House Rules requires a member to rise from their seat in order to speak and debate, make a motion, or deliver any matter to the House. Immunizing these effective ousters of representatives flies in the face of the entire purpose of legislative immunity.
  3. At oral argument, the Speaker said that challenges to hearing aids and service animal hypotheticals would be barred by absolute legislative immunity and the majority agrees.
  4. It doesn’t require, “Walt Disney level imagination” (the term actually used by Judge Thompson), for a legislature to come up with random reasons that would attach any of these rules to the legislative process.
  5. The majority opinion very well dooms the next case where there is some suspicion of a facially neutral rule driven by abuse. It goes so far as to say that legislative immunity trumps everything and bars any suit based upon any facially neutral legislative rule regardless of its impact on a representative democracy.
  6. The majority opinion gives carte blanche to legislatures to strategically silence legislative opponent and effectively disenfranchise their constituents so long that they can conjure up some facially neutral rationale for the rule. Such an opinion is at the expense of legislators with disabilities as well as at the expense of their constituents who elected them to serve.

 

III

 

Thoughts/Takeaways

 

  1. As a person with a disability and as a person dedicated to helping others understand the rights of people with disabilities, my personal opinion is that this decision goes too far and should be appealed to the United States Supreme Court. Even with the configuration of the United States Supreme Court as it is, I still believe that Representative Cushing has a decent chance of winning at the Supreme Court. Judge Thompson essentially wrote the brief for the plaintiffs.
  2. Look for the majority’s arguments to be made with respect to judicial immunity of state judges as well. It would be strange that judges charged with interpreting the law and getting it right would be free from any liability whatsoever should they themselves violate the rights of a person with a protected characteristic. The majority opinion suggest that is very well the case for both legislators and state judges (it isn’t a reach to see how the majority opinion easily applies to the actions of state judges).
  3. Legislative immunity applies to both suits for damages and for declaratory and injunctive relief, which only raises the stakes involved with this decision.
  4. I do understand how the majority argues that the State is not involved in official immunity suits, but that doesn’t mean that the dissent doesn’t have the better argument anyway.
  5. Some of the arguments made by Judge Thompson implicitly address arguments often seen in standing cases, such as this one decided by the 11th Circuit on March 29, 2022, which I may very well discuss in a subsequent blog entry and strongly suspect that Richard Hunt will discuss in one of his blog entries.
  6. I agree with Judge Thompson that an existing rule v. a new rule distinction makes little sense.
  7. Regardless of legislative immunity, we now see partisan legislators inviting federal judiciary intervention in all kinds of disputes. So, I am not sure that particular argument of the majority opinion withstands deeper analysis.
  8. Is what the Speaker did involve legislative acts, i.e. only tangentially related to legislating? The answer to that question is far from clear in my view.
  9. The ADA clearly applies to disparate impact. It is a far closer question whether the Rehabilitation Act applies to disparate impact.