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

 

I

Facts

 

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

 

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

 

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

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

 

II

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

 

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

 

III

Justice Thomas Concurring Opinion

 

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

 

IV

Justice Alito Concurring Opinion

 

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

 

V

Justice Kavanaugh Concurring Opinion

 

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

 

VI

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

 

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

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

 

I

Actual Regulations

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

II

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

 

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

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

 

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

I

Key Facts

 

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

 

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

 

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

 

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

 

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

 

II

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

 

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

III

Majority Reasoning That Pretext Cannot Be Shown

 

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

IV

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

 

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

V

Majority Response to Dissent’s View of Causation

 

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

VI

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

 

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

VII

Thoughts/Takeaways

 

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

 

 

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

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

 

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

 

I

New Additions from the Lartigue Majority Expanding upon the Withdrawn Opinion

 

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

 

 

 

 

II

Stalder v. Colorado Mesa University Facts

 

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

 

II

Stalder’s Discussion of the Law Pertaining to Service Animals

 

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

 

III

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

 

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

 

IV

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

 

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

 

V

Thoughts/Takeaways

 

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

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

 

I

Facts

 

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

 

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

 

II

 

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

 

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

 

III

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

 

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

 

IV

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

 

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

 

V

Thoughts/Takeaways

 

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

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

I

DOT Summary of Regulatory Provisions

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

 

 

II

Thoughts/Takeaways and Particular Concerns

 

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

 

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

 

 

Hockey, Ice Hockey, Puck, Hockey Stick

Picture of Hockey helmet, puck, and stick (brown and black colors).

 

Before getting started on the blog entry of the day, Dr. Bob Emmons, a forensic psychiatrist, and I just published a peer-reviewed paper in the Journal of American Physicians and Surgeons entitled, “The Americans with Disabilities Act and Appropriateness of Referral In Physician Fitness for Duty Evaluation.” The paper, which can be found here, focuses on the ethical and legal obligations of the person doing the fitness for duty evaluation as well as other things. While the paper focuses on the physician, the same issues arise whenever a professional has been referred into professional recovery programs, which I have seen often go by the terms PHP or PRP or HRP (the acronym list is not exclusive). This area has become an increasingly large part of my practice over the last couple of years. Bob and I are very excited and hope you enjoy it.

 

Turning to the blog entry of the day, the Illinois Supreme Court on March 8, 2024, here, issued a unanimous opinion in a case that we previously blogged on here. That case explored whether under the Illinois Human Rights Act, the entity running youth hockey could be held liable for their own disability discrimination since they rented out a place of public accommodation. The Illinois Supreme Court said that the case could go forward. We don’t need to dive into the facts because the prior blog entry on this case covered all that. So, the blog entry is divided into categories and they are: key provisions of the Illinois Human Rights Act; applying the Illinois Human Rights Act to this case; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Key Provisions of the Illinois Human Rights Act

 

  1. The legislature’s objective in enacting the Illinois human rights act is specifically stated in 1 – 102. In §A, it states that one of the purposes is to secure for all individuals within Illinois freedom from discrimination against any individual because of, among other things, a person’s physical or mental disability. The same section goes on to say that it is a civil rights violation for any person on the basis of unlawful discrimination to deny or refuse to another the full and equal enjoyment of the facilities, goods, and services of any place of public accommodation.
  2. The Act must be liberally construed to achieve its purpose, which in this case is the prevention of unlawful discrimination in public accommodations for all individuals.
  3. 1-103(Q) states, among other things, that unlawful discrimination is discrimination again a person because of his or her actual or perceived disability.
  4. 1-103(I)(1)(d) defines disability in part as the determinable physical or mental characteristic of a person, the history of type characteristic, or the perception of that characteristic by the person complained against, and which characteristic is unrelated to a person’s ability to utilize and benefit from a place of public accommodation.
  5. 5-101(A) defines a place of public accommodation as including all of the categories listed in 42 U.S.C. §12181(7) plus the additional one of public conveyances on air, water, or land.
  6. Plain language in §5-102(A) is clear and unambiguous.
  7. The Act prohibits a person from unlawfully discriminating against another by denying or refusing the full and equal enjoyment of the facilities, goods, and services of any place of public accommodation.
  8. Team Illinois is a “person,” as defined in the Act. In particular, the Act defines a person as one or more individuals, partnerships, associations or organizations, labor organization, labor unions, joint apprenticeship committee, or union labor association, corporation, the State of Illinois and its instrumentalities, political subdivisions, units of local government, legal representative, trustees in bankruptcy or receivers. §1-103(L).
  9. As alleged in the complaint, Team Illinois fits squarely within the definition of a person as it is both a corporation and an organization.
  10. The place where Team Illinois has its offices and rents out the facility is a place of public accommodation because it fits squarely within places of exercise or recreation as an ice arena (Seven Bridges in this case), is obviously a place of exercise or recreation. An ice arena is certainly akin to a gymnasium, bowling alley, or golf course, so it should be given the same interpretation as falling within that category.

 

 

II

Applying the Illinois Human Rights Act to This Case

 

  1. The complaint alleges that Team Illinois leases and operates portions of the ice arena, a place of public accommodation.
  2. The complaint also alleges that Team Illinois segregated, isolated, and excluded the plaintiff from participating in Team Illinois program, events, and activities at Seven Bridges (the ice arena), because of her disability and, by doing so, denied her the full and equal enjoyment of the facilities and services of a place of public accommodation.
  3. 5-102(A) does not differentiate between the portions of the place of public accommodations subject to the Act and the portions that are not. It also does not state that only a member of the public at large can file an antidiscrimination claim. For that matter it does not restrict a claim to those portions of the facility that are open to the public at large. The defendants’ interpretation reads in additional language into the Act to reach their desired result. That just will not work because the court cannot depart from the plain language of the statute by reading into an exception, limitation, or condition that the legislature did not express. Further, those limitations would be contrary to the liberal construction that must be given to the Act.
  4. Reading the Act liberally, it applies to a member of an organization who, because of her disability, has been denied the full and equal enjoyment of a place of public accommodation.
  5. Martin v. PGA Tour, Inc. decided by the Ninth Circuit and then by the Supreme Court, here, which we have also discussed numerous times in the blog, is critical to the analysis.
  6. In Martin, the Ninth Circuit specifically rejected any distinction between what occurs on the playing field v. what occurs in the area where spectators are watching. While at the Supreme Court that argument was abandoned, the Supreme Court specifically rejected a similar phrasing of the argument. In particular, the Supreme Court held that the PGA simultaneously offered at least two different privileges to the public-that of watching the golf competition and that of competing in it. While competing in it was more difficult and more expensive to obtain, it was nonetheless a privilege made available to members of the general public. So, Team Illinois cannot escape liability under §5-102(A) by claiming that the plaintiff was not barred from the parts of the facility open to the public at large. Like the competitive areas “behind the ropes,” on golf courses, the areas of the ice arena restricted to members of Team Illinois are no less a place of public accommodation in the areas that are open to the general public.
  7. The Martin cases are directly applicable in the following ways: 1) plaintiff tried out for and was accepted as a member of Team Illinois; and 2) plaintiff alleges that Team Illinois discriminated against her by restricting her from the portions of a place of public accommodation reserved for Team Illinois members.
  8. Team Illinois cannot distinguish Martin on the basis that it lacks a sufficient nexus with the place of public accommodation because it leases parts of the ice arena, has its office at the ice arena, and uses the ice arena at the primary location for its activities.
  9. 5-102(A) does not subject all activities of an organization to the Act. Rather, it is strictly limited to action denying a person the full and equal enjoyment of the place of public accommodation.
  10. It isn’t necessary to decide the question of whether Team Illinois itself is a place of public accommodation because the gravamen of the complaint is that Team Illinois denied the plaintiff the full and equal enjoyment of the facilities, goods, and services of the ice arena. Thus, it is unnecessary to determine whether the complaint states a separate cause of action based on an alternate reading of the factual allegations.
  11. The Illinois Supreme Court declined to provide guidance regarding how far the private club exemption might go. Even if the private club exemption applied, the gist of plaintiff’s complaint doesn’t rise or fall on whether Team Illinois is a place of public accommodation. Further, Team Illinois does not contend that the ice arena is a private club. Therefore, any guidance that the Illinois Supreme Court may provide on this exception would amount to an advisory opinion, which isn’t something that it does.

 

IV

 

Thoughts/takeaways

 

  1. The Illinois Human Rights Act has a very peculiar definition of disability that I have not seen in any of the other States that I have come across. In particular, it’s focus on “unrelated,” is very confusing.
  2. State’s often have their own disability nondiscrimination laws and those laws should be looked at. Not every state has such laws. For example, Alabama doesn’t. For that matter, Georgia doesn’t either, except for a very limited law directed to state employees of Georgia.
  3. Whether a place is a place of public accommodation is a distinct question from whether a person has been denied the privileges and benefits associated with that place.
  4. I am licensed in Georgia, Texas, and Illinois in reverse chronological order. I can tell you that both Illinois and Texas include public conveyances on air, water, or land in their statutes as being a place of public accommodation. I can also tell you that with respect to air, there may be preemption issues with the Airline Deregulation Act. So, if you are dealing with discrimination by the airlines, you will want to be looking at the Air Carrier Access Act as well as title II of the ADA with respect to the airport facility. By way of full disclosure, I have consulted on cases involving the intersection of negligence laws, the Airline Deregulation Act, the Air Carrier Access Act, and title II of the ADA.
  5. You can’t forget about the importance that disability nondiscrimination laws apply to privileges and benefits. This topic, which we have discussed here for example, is being litigated more and more every day.
  6. The Supreme Court in Martin, as well as the Illinois Supreme Court in this case, does not differentiate between the portions of places of public accommodations open to competitors in the portions of places of accommodations open to spectators.
  7. Interesting that the court brings up the nexus issue. As we know, in the area of Internet site accessibility, such as what we discussed here, nexus can be a very big deal indeed.
  8. One thing that comes across my desk frequently is the question of what happens if an outfit like Team Illinois uses at the facility of a nonfederal governmental entity. In that case, the public entity per 28 C.F.R. §35.130(b)(1)(v), cannot provide significant assistance to an agency, organization, or person that discriminates on the basis of disability. So, the public entity can use that as leverage to get the actor doing the wrong thing to do the right thing.
  9. While the Illinois Supreme Court was just saying in this case that the case could go forward, the facts are pretty egregious. It is also pretty clear from the decision how the Illinois Supreme Court sees it playing out, assuming the facts as stated, given the applicable law. So, I would be surprised if this case doesn’t settle quickly.
  10. Illinois years ago did away with the unpublished v. published distinction. Every case gets a citation that can be easily found by way of a computer. So, all Illinois decisions at any level are fair game.

Today’s blog entry is one of those situations where I read a case and asked myself whether the court could have gotten to the same place more elegantly than the way it did. The case of the day is Bruno v. Chasity Wells-Armstrong, here, decided by the Seventh Circuit on February 23, 2024. As usual, the blog entry divided into categories and they are: facts; court’s reasoning that failure to accommodate claim fails; court’s reasoning that disparate treatment claim fails; court’s reasoning that retaliation claim fails; and it was entirely possible to get to the same place in a different way/thoughts- takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

Jeffrey Bruno, a veteran firefighter with the Kankakee Fire Department suffered a severe cardiac event in September 2017. After he recuperated and returned to work, Mayor Chasity Wells-Armstrong promoted him to Deputy Chief. But in the summer of 2019, after Bruno had worked in that position for over a year, Wells-Armstrong denied him a raise and then presented him with an employment contract that conditioned additional compensation on his enrollment in college courses. Bruno asked James Ellexson, the Human Resources Director for the City of Kankakee, to remove this education condition as an accommodation under the Americans with Disabilities Act because his heart condition prevented him from attending classes. But Ellexson refused. Bruno signed the contract nonetheless and retired soon thereafter. Plaintiff brought suit under the ADA and under the Illinois Human Rights Act for discrimination and retaliation. Other relevant facts include:

 

  1. After recovering, he returned to work in December 2017 and applied to be Assistant Chief later that month. Despite knowing that Bruno lacked a bachelor’s degree, in early 2018, Mayor Chasity Wells-Armstrong selected Bruno to be the Assistant Chief (the title was later changed to Deputy Chief) over candidates with bachelor’s and master’s degrees. After his promotion, Bruno reenrolled in college courses for the 2018 spring semester but did not continue beyond that semester because his doctor advised him to stop attending.
  2. Bruno worked as Deputy Chief for the entirety of 2018 without a contract. In January 2019, Wells-Armstrong and Ellexson presented him with a contract covering February 6, 2018, to April 30, 2019, that required him to enroll in college courses to keep his position. Bruno asked that the provision be removed. Ellexson agreed, and Bruno was permitted to remain Deputy Chief without enrolling if he obtained a doctor’s note excusing him from taking classes, which he did.
  3. Months later, in the summer of 2019, Wells-Armstrong decided to deny Bruno a raise because of his perceived insubordination—a failure to “separate from the ranks.” This stemmed from concerns that Bruno had leaked information from a confidential management discussion and criticized Ellexson’s management decisions to rank-and-file firefighters. In July 2019, Ellexson directed Bruno to cease speaking with a Kankakee Fire Department firefighter who had sued the City for sex discrimination. But Bruno defied that directive and continued to speak with her. Ellexson and Wells-Armstrong believed that Bruno had shared information with the firefighter because her lawsuit included information known only to Ellexson, Bruno, and the Kankakee Fire Department Chief. Bruno claimed he was unaware of any issue of trust until August 2019. But before that date, he had participated in a counseling session with Ellexson to discuss leadership and the expectations for the position which covered the importance of confidentiality.
  4. Wells-Armstrong decided to not give Bruno a raise, Wells-Armstrong (and Ellexson) but still offered Bruno a new contract on July 31, 2019, covering May 1, 2019, to April 30, 2020, that would entitle him to additional compensation if he returned to college. Bruno again requested that the education condition be removed as an accommodation under the ADA. This time, Ellexson refused to waive the provision, asserting that its removal was not a reasonable accommodation. Bruno signed the contract anyway, but soon after submitted his retirement paperwork and ceased his employment with the Kankakee Fire Department.

 

II

Court’s Reasoning That Failure to Accommodate Claim Fails

 

  1. Recovery under a failure to accommodate theory requires proving that: 1) the plaintiff was a qualified individual with a disability; 2) the defendant was aware of the plaintiff’s disability; and 3) the defendant failed to reasonably accommodate the plaintiff’s disability.
  2. A reasonable accommodation is something that enables the employee to perform the essential functions of the employment position.
  3. Reasonable accommodations are expressly limited to those measures enabling the employee to work.
  4. The duty of reasonable accommodation is satisfied when the employer does what is necessary to enable the worker with a disability to work in reasonable comfort.
  5. An adverse employment action is not needed to prevail on a failure to accommodate theory.
  6. Bruno’s request to waive the education condition was not a request for a measure that would enable him to do his essential job functions and therefore not a request for reasonable accommodation. That is, Bruno would’ve needed to go beyond his duties to obtain the pay bump. The defendant did not need to provide accommodation to allow Bruno to go beyond his essential job functions and thus attain the pay bump, let alone allow him to obtain the pay bump without satisfying the education condition.
  7. Since the pay bump did not depend on Bruno performing his essential duties, the defendants did not have to provide an accommodation enabling him to obtain it because doing so would have been awarding him compensation that he did not earn.
  8. Attending college was not a requirement of his job.

 

III

 

Court’s Reasoning That Disparate Treatment Theory Fails

 

  1. The defendants prevail because they are able to show that they had independent reasons for terminating Bruno and that the reasons were not a pretext.
  2. Bruno admitted that Ellexson believed he had leaked information from a confidential discussion and that he had a counseling session with Ellexson covering the importance of keeping such discussion confidential.
  3. Bruno also admitted that he went against Ellexson’s order to not speak with a firefighter that had sued the city before he was presented with the second contract. Therefore, Bruno effectively admits that he not only engaged in insubordination but also that the defendant genuinely believed that he had done so.

 

IV

Court’s Reasoning That Retaliation Claim Fails

 

  1. Bruno only identified as a protected activity his continued contact with the firefighter who filed a sex discrimination claims against the city. That doesn’t have anything to do with an ADA protected activity. Therefore, the retaliation claim fails.

 

V

It Was Entirely Possible to Get To The Same Place In A Different Way/Thoughts- Takeaways

 

  1. This case could have more elegantly gone off on the principle that an employer does not have to modify an essential function of the job. There is plenty of evidence from the opinion that a college degree was an essential eligibility requirement for the position Bruno sought.
  2. I don’t understand why Bruno could not have completed his college classes over the Internet. Colleges offer online degrees and classes over the Internet all the time. Even colleges that are predominantly residential, will offer classes over the Internet. It doesn’t seem like the record was fully developed on this.
  3. Personal liability, with one exception for retaliation claims occurring within the 11th Circuit involving employees of a nonfederal governmental entity, is not a thing under the ADA. That is, individual liability is not something seen under title I, title II, or title III, with the exception of what is noted above (see this case). State laws may vary of course, so be sure to check your jurisdiction on that.
  4. An employer is free to adjust essential qualifications for a job at any time.
  5. I do note that employers are moving away from requiring college degrees as a matter of course for every job.
  6. In order to be a qualified person with a disability, an employee must satisfy the requisite training, skills, and experience for that position. Arguably, Bruno did not have that here.
  7. The court’s statement, citing to another case, that “reasonable accommodation is expressly limited to those measures that will enable the employee to work,” raises the question of whether essential functions of the job are what is accommodated or whether it is the disability that is accommodated. As we have discussed in our blog, such as here for example, depending on the place, courts are a bit all over the place as to whether they are focusing on the disability or the essential job function when it comes to accommodation.
  8. The court’s statement, citing to another case, that “the duty of reasonable accommodation is satisfied when the employer does what is necessary to enable the disabled worker to work in reasonable comfort,” is problematic. It is not a question of whether a person with a disability can work in reasonable comfort, the rather the question is whether the person with the disability can get to the same starting line as a person without a disability. In other words, can a person with a disability perform the essential functions of their job with or without reasonable accommodations.
  9. As we have seen from our blog entries, such as here, it isn’t the rule everywhere that an adverse employment action is not needed to prevail on a failure to accommodate theory. Check your jurisdiction on that.
  10. Also, as we discussed here, McDonnell Douglas as a summary judgment tool is very much up in the air. Check your jurisdiction on that as well.
  11. The case does not appear to be published, but I am not 100% certain of that.

Previously, we have blogged on a case involving Julian Vargas and the inaccessibility of kiosk equipment used by Quest diagnostics. It turns out that he is involved in a similar case involving Laboratory Corporation of America Holdings with another plaintiff, Luke Davis. A district Court in California approved a class under the California antidiscrimination law, Unruh Act, as well as a nationwide class under the ADA. Laboratory Corporation appealed. As usual, the blog entry is divided into categories, and they are: facts; court’s reasoning that Vargas had standing; court’s reasoning that the Unruh act class action as certified by the district court goes forward; court’s reasoning that the district court did not abuse its discretion in certifying the nationwide class under the ADA by determining that a nationwide injunction could provide relief to all members; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

The facts are pretty straightforward. That is, as far as I can tell, they closely resemble the facts of the case we discussed in this blog entry, here. In short, as a result of being blind, mandating the use of inaccessible kiosks interfered with the full and equal enjoyment of Lab Corporation’s services.

 

II

Court’s Reasoning That Vargas Had Standing

 

  1. When it comes to disability discrimination, it is not necessary for standing purposes that the barrier completely preclude the plaintiff from entering or from using a facility in any way. Rather, a plaintiff need only demonstrate that the barrier interferes with the plaintiff’s full and equal enjoyment of the facility.
  2. Citing to Robles, which we discussed here, and to a Code of Federal Regulation, 28 C.F.R. §36.303(c)(1), full and equal enjoyment of the facility requires effective communication with individuals with disabilities.
  3. As a result of the inaccessibility of the kiosk, Vargas was unable to immediately preserve his place in the patient queue, as sighted patients could, or to access other kiosk features, such as the ability to privately alter account information. Therefore, Vargas was denied effective communication and by extension, the full and equal enjoyment of Lab Corporation’s services. As a result, he suffered an injury adequately concrete to convey Article III standing.

 

III

Court’s Reasoning That the Unruh Act Class Action as Certified by the District Court Goes Forward

 

  1. To certify a class under Rule 23, a plaintiff has to show two things: 1) commonality, numerosity, typicality, and adequacy of representation; and 2) that the class also fits into one of three categories. In this case, the category at issue is whether questions of law or fact common to class members dominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.
  2. A showing of difficulty, discomfort, or embarrassment is only required to recover damages in construction -related Unruh act claims. Since this case concerns effective communication and not construction, such as showing for each plaintiff is not required.
  3. It is also not required that each plaintiff suffer identical harm. Instead, the relevant inquiry, is whether class members were subject to the same injuring behavior. Since all class members maintain their injury resulted from the inaccessibility of a Lab Corporation kiosk, the commonality requirement is satisfied.
  4. The district court identified six common issues whose answers would determine key elements of the case and the district court did not abuse its discretion in coming to those conclusions.
  5. Rule 23’s typicality requirement is a permissive standard satisfied when representative claims are reasonably co-extensive with those of absent class members. Those claims need not be substantially identical to the claims of absent members. In this case, Vargas is blind, tried to access Lab Corporation’s services, and was unable to do so using a kiosk. Therefore, his claims are typical of the class.
  6. Identifying class members would not be difficult because Lab Corporation knows how many patients checked in, and has information on those patients from their provided ID and insurance. When it comes to validating claims of class members, administrators, auditing processes, and other techniques can be used.

 

IV

The District Court Did Not Abuse Its Discretion in Certifying the Nationwide Class under the ADA by Determining a Nationwide Injunction Could Provide Relief to All Members

 

  1. All class members were injured by the complete inaccessibility of Lab Corporation’s kiosks for blind individuals.
  2. As mentioned by the district court, kiosks could be rendered accessible to the blind with the addition of technological accommodations. Therefore, that would address the injuries of the entire class.
  3. It doesn’t matter if some class members may still prefer to not use the kiosks because the ability to make a choice of doing it that way or by using an accessible kiosk in the first place relieves any current injuries.
  4. The district court did revise the class definitions in its June 13 order. However, Lab Corporation never attempted to amend or refile its interlocutory appeal to include June 13 order. So, the June 13 order is not properly before the court.

V

Thoughts/Takeaways

 

  1. When it comes to class actions, the whole key comes down to whether a class is certified in the first place. If a class is certified in the first place, the stakes go up exponentially. So, it wouldn’t surprise me to see this case head towards settlement rapidly.
  2. The case is not published.
  3. Standing for a person with a disability is conferred when the allegations show that the person with the disability was denied full and equal enjoyment of the facility.
  4. This case makes you wonder why Quest Diagnostics, which we discussed here and which involved the same plaintiff, appealed their case. While this case is unpublished, the facts are essentially the same.
  5. As mentioned previously, I am involved with the Kiosk Manufacturers Association on an informal basis. There are companies making accessible kiosk and it is a significant point of emphasis of the Kiosk Manufacturers Association.
  6. It is significant that the court said that full and equal enjoyment of facilities includes effective communication because now effective communication becomes a statutory requirement rather than just a regulatory requirement. That distinction can sometimes be important when it comes to being able to claim a cause of action as not every final regulation can automatically serve as the basis for a cause of action.
  7. While discomfort, difficulty, or embarrassment was not required in this case, a blind individual having to go through this would certainly suffer difficulty, discomfort, and embarrassment.
  8. Interesting that the first name on the pleading at the Ninth Circuit is not Vargas but someone else, since Vargas is the subject of the appeal
  9. One wonders why Lab Corporation litigated all this because my understanding is that fixing the situation with accessible kiosks is not terribly difficult or expensive, especially considering the resources of the defendant, and would certainly be much cheaper than litigating the matter.

The blog entry for the week is actually not an ADA case at all but it may have a substantial impact on the ADA universe. The case of the day is Murray v. UBS securities, LLC, a unanimous decision written by Justice Sotomayor, from the Supreme Court decided on February 8, 2024, here. It actually explores what a plaintiff has to show when it comes to proving discrimination in a Sarbanes-Oxley case. As usual, the blog entry is divided into categories, and they are: facts; Court’s reasoning that Sarbanes-Oxley does not reference or include a retaliatory intent requirement; Court’s reasoning that Sarbanes-Oxley has a contributing factor burden shifting framework built into the statute that also dictates there be no retaliatory intent requirement when it comes to whistleblowers proving retaliation; Justice Alito concurring opinion joined by Justice Barrett; and thoughts/takeaways and how Murray might impact ADA jurisprudence. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

In 2011, Trevor Murray was employed as a research strategist at securities firm UBS, within the firm’s commercial mortgage-backed securities (CMBS) business. In that role, Murray was responsible for reporting on CMBS markets to current and future UBS customers. Securities and Exchange Commission (SEC) regulations required him to certify that his reports were produced independently and accurately reflected his own views. See 17 CFR §242.501(a) (2022). Murray contends that, despite this requirement of independence, two leaders of the CMBS trading desk improperly pressured him to skew his reports to be more supportive of their business strategies, even instructing Murray to “clear [his] research articles with the desk” before publishing them. 1 App. in No. 20–4202 (CA2), p. 254. Murray reported that conduct to his direct supervisor, Michael Schumacher, in December 2011 and again in January 2012, asserting that it was “unethical” and “illegal.” App. 28. Schumacher expressed sympathy for Murray’s situation but emphasized that it was “very important” that Murray not “alienate [his] internal client” (i.e., the trading desk). Ibid. When Murray later informed Schumacher that the situation with the trading desk “was bad and getting worse,” as he was being left out of meetings and subjected to “constant efforts to skew [his] research,” Schumacher told him that he should just “write what the business line wanted.” Id., at 29–30. Shortly after that exchange (and despite having given Murray a very strong performance review just a couple months earlier) Schumacher emailed his own supervisor and recommended that Murray “be removed from [UBS’s] head count.” Id., at 39. Schumacher recommended in the alternative that, if the CMBS trading desk wanted him, Murray could be transferred to a desk analyst position, where he would not have SEC certification responsibilities. The trading desk declined to accept Murray as a transfer, and UBS fired him in February 2012.

 

After the judge had instructed the jury, the jury sought clarification on the instructions. Once they received the clarification, the jury awarded $1 million to Murray and the court subsequently awarded $1.769 million in attorney’s fees and costs. When the court clarified the instructions, the clarification did not include any suggestion that discrimination per the Sarbanes-Oxley Act’s anti-retaliation provision required a whistleblower-employee to prove retaliatory intent. UBS appealed and won at the Second Circuit. Murray then appealed to the United States Supreme Court. In light of a conflict between the Second Circuit v. the Fifth and Ninth Circuits, the Supreme Court accepted the case.

 

II

Court’s Reasoning That Sarbanes-Oxley Does Not Reference or Include A Retaliatory Intent Requirement.

 

  1. Sarbanes-Oxley’s statutory text states that no employer subject to the act may be discharged, demoted, suspend, threaten, harass, or in any other manner discriminate against an employee in the terms and conditions of employment because of the employee’s protected whistleblowing activity. 18 U.S.C. §1514A.
  2. The placement of the word “discriminate,” in that section’s catchall provision suggests that it is meant to encompass other adverse employment actions not specifically listed. The clause is clearly drawing meaning from the terms “discharge, demote, suspend, threaten, and harass,” rather than giving those terms a new or different meaning.
  3. Prohibited discrimination occurs when an employer intentionally treats a person worse because of a protected characteristic.
  4. In Bostock, which we discussed here, the Court made clear that a lack of “animosity,” is irrelevant to a claim of discrimination under title VII.
  5. Any animus-like retaliatory intent requirement is absent from the definition of the word, “discriminate.”
  6. When an employee treats someone worse-whether by firing them, demoting them, or imposing some other unfavorable change in the terms and conditions of employment-“because of,” the employee’s protected whistleblowing activity, the employer violates §1514A. It does not matter whether the employer was motivated by retaliatory animus or motivated, for example, by the belief that the employee might be happier in a position that did not have SEC reporting requirements.
  7. Accepting that the word “discriminate,” is relevant to the intent inquiry, the only intent required by §1514A requires is the intent to take some adverse employment action against the whistleblowing employee “because of,” is protected whistleblowing activity.

 

III

Court’s Reasoning That Sarbanes-Oxley Has a Contributing Factor Burden Shifting Framework Built into the Statute That Also Dictates There Be No Retaliatory Intent Requirement When It Comes to Whistleblowers Proving Retaliation

 

  1. The statute is clear that whether an employer “discriminated,” has to be resolved through the contributing-factor burden-shifting framework applying to Sarbanes-Oxley whistleblower claims.
  2. Requiring a whistleblower to prove an employer’s retaliatory animus ignores the statute’s mandatory burden-shifting framework, the discussion of which was conspicuously absent from the Second Circuit’s opinion.
  3. The burden-shifting framework provides a means of getting at intent, and Congress here has decided that the plaintiff’s burden on intent is simply to show that the protected activity was a “contributing factor in the unfavorable personnel action per 49 U.S.C. §42121(b)(2)(B)(i).”
  4. While many statutes dealing with employment discrimination apply a higher bar by requiring a plaintiff to show that his protected activity was a motivating or substantial factor in the adverse action, the incorporation of the contributing-factor standard into Sarbanes-Oxley itself reflects a judgment that personnel actions against employees should quite simply not be based on protected whistleblowing activities-not even a little bit.
  5. The ordinary meanings of the words “contribute,” and “factor,” suggests the phrase “contributing factor,” is broad.
  6. The statute’s burden shifting framework provides at 49 U.S.C. §42121(b)(2)(B)(ii), that an employer will not be held liable where it “demonstrates, by clear and convincing evidence, that it would’ve taken the same unfavorable personnel action in the absence of,” the protected behavior. The right way to think about that kind of same-action causation analysis is to change one thing at a time and see if the outcome changes. Therefore, the question is whether the employer would have retained an otherwise identical employee who had not engaged in the protected activity.
  7. The contributing-factor framework Congress chose in Sarbanes-Oxley is not as protective of employers as a motivating-factor framework, which is by design. Congress has employed the contributing-factor framework in contexts where the health, safety, or well-being of the public may well depend on whistleblowers feeling empowered to come forward. This Court cannot override that policy choice by giving employers more protection than the statute itself provides.
  8. While a whistleblower invoking the retaliation provisions of Sarbanes-Oxley does have the burden to prove that his protected activity was a contributing factor in the unfavorable personnel action alleged in the complaint, the whistleblower is not required to make some further showing that his employer acted with retaliatory intent.

 

IV

Justice Alito Concurring Opinion Joined by Justice Barrett

 

  1. Sarbanes-Oxley makes no mention of any animus in any of its provisions and there is no ground for the Court to add it as an additional, non-statutory requirement.
  2. The rejection of a “animus,” requirement does not read intent out of the statute. That is, a plaintiff still has to show an intent to discriminate.
  3. The phrase “in any other manner discriminate,” suggests that the adverse action must be a form of discrimination.
  4. Discriminatory discharge that is made “because of,” a particular factor necessarily involves an intentional choice where that factor plays some role in the employer’s thinking. In other words, the plaintiff must prove that the employer intentionally treated the plaintiff worse because of the protected conduct.
  5. Proving intent means that the plaintiff must show that a reason for the adverse decision was the employee’s protected conduct. A plaintiff need not prove that the protected conduct was the only reason or even that it was a principal reason for the adverse decision. Showing that it helped to cause or bring about that decision is enough. If the plaintiff makes that showing, the statute’s intent requirement is met, and the only open question is causation. With respect to causation, Sarbanes-Oxley shifts the burden to the employer to prove by clear and convincing evidence that it would’ve taken the same unfavorable personnel action alleged in the complaint. In other words, the employer has to show then that the plaintiff’s protected conduct did not cause the challenged employment decision. If the employer satisfies that burden, then the element of causation has not been proved.

 

 

V

Thoughts/Takeaways and How Murray Might Impact ADA Jurisprudence

 

  1. This case may have significant repercussions with respect to the ADA. For example, the retaliation provision of the ADA, which can be found at 42 U.S.C. §12203(a) is written in the same way at the retaliation statute in Sarbanes-Oxley. That is, the word “discriminate,” leads off the statutory provision. As a result, a strong likelihood exists that any effort of a defense attorney to show that retaliation with respect to the ADA involves showing retaliatory animus will likely fail.
  2. What is missing from the ADA in terms of the statutory provisions is the burden-shifting baked into Sarbanes-Oxley. As we have discussed multiple times, such as here, McDonnell Douglas has over the years taken over summary judgment when it comes to ADA cases, particularly on the employment side. We know from this blog that whether that kind of approach will continue to make sense is very much up in the air. The hard thing to figure out from Murray is whether the discussion of burden shifting and motivating factor is expressing some kind of affinity for that kind of framework or whether the discussion is occurring because of the statutory provisions contained in Sarbanes-Oxley. The answer to that question matters because of trying to hazard a guess as to whether the Supreme Court will continue with McDonnell Douglas as a summary judgment tool or whether it will adopt an approach like the Seventh Circuit, which we discussed here, or an approach like the 11th Circuit, which we discussed here.
  3. It is also interesting to think about this case with respect to whether a person alleging retaliation can get damages, a point with the courts are all over the place on as we discussed here. As I mentioned in that blog entry, Justice Alito when he was on the Circuit Court bench wrote an opinion where he said that retaliation is discrimination. That decision combined with this decision does have you wondering whether damages are possible in a retaliation case.
  4. Bostock, which we discussed here, is an absolute must read when it comes to causation.
  5. As Justice Alito says, you still have to show intentional discrimination.
  6. We know that compensatory damages under title II are only possible upon a showing of deliberate indifference, see this blog entry for example. We also know that deliberate indifference can mean different things depending upon the jurisdiction you are in, such as here for example. As far as I can tell, “deliberate indifference,” is a judicially created standard for Rehabilitation Act cases and for title II cases. The language of this decision is broad enough to create a real issue in my mind whether “deliberate indifference,” for the reasons the Court describes in Murray, is still good law. Definitely look for plaintiffs attorneys to begin exploring this in title II and §504 cases. It also raises the issue of what might be the likelihood or not of the Court deciding whether emotional distress damages can be available under title II of the ADA. We already know from Cummings, here, that emotional distress damages are not available under the Rehabilitation Act absent a change in the law from Congress. The jury is still out so to speak, and especially now after Murray, as to whether the same analysis will apply to title II cases.