Many times before in this blog, such as here and here and here, we have discussed effective communication rules. On October 6, 2021, the American Bar Association issued Formal Opinion 500. Formal Opinion 500, here, now takes effective communication and makes it a matter of professional responsibility and a matter of legal ethics that attorneys must follow. This blog entry discusses Formal Opinion 500 and then offers my thoughts/takeaways on it, which are also the categories for this blog entry. While Formal Opinion 500 extends beyond persons with disabilities, the focus of this blog entry is just on persons with disabilities.

 

I

Formal Opinion 500

 

  1. Communication between a lawyer and a client is necessary for the client to participate effectively in the representation and is a fundamental component of nearly every client lawyer relationship.
  2. When a client’s ability to receive information from or convey information to a lawyer is impeded because the lawyer and the client do not share a common language or the client has a hearing, speech, or vision disability or other noncognitive physical condition, the duties of communication and competence are undiminished. In such a situation, the lawyer may be obligated to take measures appropriate to the client’s circumstances to ensure that those duties are capably discharged.
  3. When reasonably necessary, the lawyer should arrange for communication to take place through an impartial interpreter or translator capable of comprehending and accurately explaining the legal concepts involved and who will attend to and abide by the duty of confidentiality. The lawyer should also use other assistive or language translation technology when necessary.
  4. Where language considerations affecting the reciprocal exchange of information exists, a lawyer must ensure that the client understands the legal significance of translated or interpreted communications and that the lawyer understands the client’s communications.
  5. Assistive technologies include closed captioning, live transcription, screen readers, refreshable braille display, and speech recognition software. Other technologies include electronic text to voice translation software and devices, telecommunication relay services, video relay services, and video remote interpreting.
  6. Depending upon the circumstances, using technology instead of or in addition to the engagement of a human interpreter or translator may be appropriate and sufficient to satisfy the ethical obligations of communication and competence. Keep in mind, these technologies are rapidly changing and that underscores the duty of lawyers to develop an understanding of relevant technology.
  7. The adoption of the ADA has led to growing awareness among lawyers that clients seeking representation may not be able to hear, speak, or read without accommodation.
  8. The foundational rule of competence (Model Rule 1.1) and communication (Model Rule 1.4) in the ABA model rules of professional conduct prescribe a baseline that when a lawyer and client cannot communicate with reasonable efficacy, the lawyer must take steps to engage the services of a qualified and impartial interpreter and/or employing appropriate assistive or language translation device to ensure that the client has sufficient information to intelligently participate in decisions relating to the representation and that the lawyer is procuring adequate information from the client to meet the standards of competent practice.
  9. Lawyers must communicate with clients in a manner reasonably understandable to those clients so that clients know what is happening on their matters and can participate intelligently in the representation.
  10. Firms and other legal organizations may be legally required to provide and pay for auxiliary aids and services in order to provide a client with reasonable accommodations under the ADA because law offices are explicitly included in the definition of public accommodations per 42 U.S.C. §12181(7)(f).
  11. The ADA does not allow entities to pass along the cost of auxiliary aids and services to the person with the disability.
  12. The duty of communication under current Model Rule 1.4 includes the duties: 1) to promptly inform the client of information when the client’s informed consent is required; 2) to reasonably consult with the client about the representation; 3) to keep the client reasonably informed about the status of the matter; 4) to promptly comply with reasonable requests for information; and 5) to consult with the client on relevant limitations on the lawyer’s ability to provide legal assistance. It is also incumbent on the lawyer to ensure that the client has sufficient information to participate intelligently in the client lawyer relationship, to explain the matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
  13. Reasonably understandable client lawyer communication is not only necessary to enable the client to make important decisions, it is also an element of the lawyer’s obligation to provide the client with competent representation under Model Rule 1.1. If a lawyer does not communicate with the client in a mutually understood language, it is doubtful that the lawyer is exercising the thoroughness and preparation necessary to provide the client with competent representation.
  14. Communication between a lawyer and the client is both the means by which they client is provided with the advice and explanation needed to make important decisions and the vehicle as to how the lawyer obtains information required to address the client’s legal matter appropriately.
  15. The information that must be provided when discharging the duty to explain a matter reasonably is what is appropriate for a client who is a comprehending and responsible adult.
  16. If communications issues are such that the client cannot adequately comprehend the lawyer’s advice and other communication and therefore, cannot participate intelligently in the representation, or the lawyer is unable to ascertain the information needed to competently assist the client, the lawyer must take measures to establish a reasonably effective mode of communication. Ordinarily, that will require the engagement of a qualified impartial interpreter or translator or in some situations the use of an appropriate assistive or language translation device so that the lawyer and client can reasonably understand one another to a degree compatible with the lawyer’s professional obligations.
  17. Ordinarily, the mode of communication to be used during the representation of the matter is to be decided between the lawyer and the client. In the case of language access issues, consultation with the client is appropriate if possible.
  18. A lawyer cannot passively leave the decision to the client or thrust the responsibility for making arrangements for interpretation or translation entirely upon the client.
  19. Once it is reasonably apparent that without an interpreter, translator, or an appropriate assistive or language translation device that there cannot be a reliably understandable reciprocal exchange of information between the lawyer and the client, the lawyer must take steps to help the client understand the need for and purpose of an interpreter or translator, and when reasonably necessary, take steps to secure such services.
  20. It is the lawyer’s affirmative responsibility to ensure the client understands the lawyer’s communications and that the lawyer understand the client’s communications. Where doubts exist, that doubt should be resolved in favor of getting an interpreter, translator, or an appropriate assistive or language translation device.
  21. In general, an individual engaged to facilitate communication between the lawyer and the client must be qualified to serve as an interpreter or translator in the language required, familiar with and able to explain the law and legal concepts in that language, and be free of any personal or other potentially conflicting interest that create the risk of bias or prevents the individual from providing impartial interpretive or translation services.
  22. The ADA generally obligates the lawyer to bear the cost of procuring such services when they are necessary to accommodate a disability.
  23. In assessing the qualifications of the prospective interpreter or translator, the lawyer should verify that the individual is skilled in the particular language or dialect required. In addition, the lawyer should confirm that the individual has the expertise needed to comprehend the legal concepts/terminology at issue so that the legal advice being provided is communicated accurately in the language or format acceptable to the client.
  24. In most situations, the verification of a prospective interpreter’s or translator’s level of skill and capacity to convey legal concepts is best achieved through the engagement of the services of an outside professional to assist the lawyer in the delivery of legal services.
  25. Depending on the circumstances, alternative arrangements may suffice. For example, a lawyer may look to a multilingual lawyer or a nonlawyer staff member within the firm to facilitate communication with the client. If a nonprofessional interpreter is contemplated, the lawyer should proceed cautiously in light of the reduced ability to assess the nonprofessional’s level of proficiency and the increased risk of inaccuracies in interpretation or translation.
  26. In some instances, a client’s friend or a family member may function as a viable interpreter or translator. However, particular care must be taken when using a client’s relatives or friends because of the substantial risk that an individual in a close relationship with the client may be biased by a personal interest in the outcome of the representation. In such situation, the lawyer must exercise appropriate diligence to guard against the risk that the lay interpreter is distorting or altering communications in a way that skews the information provided to the lawyer or the advice given to the client.
  27. A lawyer should be able to verify a prospective translator’s or interpreter’s professional qualifications in the same manner use when engaging the services of an expert, i.e., by evaluating the individual’s training, experience, certification, and professional standing.
  28. Relatives and friends of the client may also be less reliable in providing interpretation and translation services when needed because they lack accountability to the lawyer or firm derived from an employment or other contractual relationship.
  29. If obtaining necessary services would place an unreasonable financial burden on the lawyer or if necessary services are unavailable, the lawyer should ordinarily decline or withdraw from the representation or associate with the lawyer or law firm that can appropriately address the language access issue.
  30. Under Model Rule 5.3, the lawyer must make reasonable efforts to ensure that the interpretive or translation services are provided in a manner compatible with the lawyer’s ethical obligations, particularly Model Rule 1.6, duty of confidentiality.
  31. Lawyer should look for cues indicating that the nonprofessional interpreter is speaking for the client or filtering the attorney’s statement rather than impartially conveying the communications. In such situation, it is prudent for the lawyer to consult with the client about the risks and benefits of using a family member as an interpreter or translator.
  32. Attorneys representing clients through interpreters should ensure that the interpreter has a clear understanding of the obligation to keep the attorney-client communication confidential.

 

II

Thoughts/Takeaways

 

  1. Compliance with the ADA’s effective communication regulations is now more than a matter of ADA compliance. It is also now a matter of professional responsibility and compliance with legal ethical rules.
  2. Just when is the communication not effective? As a preventive law matter, lawyers would do well to read Silva I, which we discussed here.
  3. Lawyers should always use an impartial qualified interpreter.
  4. With respect to the culturally deaf, keep in mind that it is not unusual for the Deaf to not be able to read beyond a fourth grade reading level. So, live interpreters may be your only option. Further, video remote interpretation may not be so great either. Conversations over the phone where the culturally deaf individual uses a video relay phone to talk to an interpreter who responds to the lawyer can work well but it depends upon how technical the information is because of the skill of the video relay interpreter can vary considerably.
  5. Live transcription (AI) may work well depending upon how technical the information is. It is also going to depend upon the reading level of the prospective client.
  6. Technology is rapidly changing and lawyers have an ethical obligation to keep on top of the rapidly changing technology when it comes to being able to accommodate their clients so that effective communication occurs.
  7. Firms and other legal organizations are legally required to provide and pay for auxiliary aids and services in order to provide the client with reasonable modifications under the ADA in order to have effective communication with the client. The actual opinion uses the term, “may be legally required.” There is no “may be,” about it. Since the entire resources of the entity are looked at when it comes to undue burden, a lawyer is going to have a hard time showing that the costs of providing the auxiliary aid and service is going to be too much under the ADA. The lawyer is also going to have a hard time showing that providing such an auxiliary aid or service fundamentally alters the nature of their business. In fact, I don’t see how that is even possible.
  8. The ADA does not allow cost of auxiliary aids and services to be passed along to the person with the disability.
  9. While it is debatable whether the interactive process is required under title III of the ADA, it is certainly good preventive law to engage in the interactive process. Engaging in the interactive process with the person with the disability will prevent a lot of future problems down the road. It will also likely save you money. I would submit that the interactive process is necessary under title III and title II of the ADA because the very nature of providing reasonable modifications presumes an interactive process in the first place. For the do’s and don’ts of the interactive process, see this blog entry. Keep in mind, as we discussed here, that effective communication obligations may extend beyond the interactive process.
  10. While a lawyer cannot thrust the responsibility to make arrangement for interpretation or translation entirely upon the client, there isn’t anything wrong with asking the client for assistance as they may know the people to go to. The lawyer still bears the ultimate responsibility for paying for it and for making it happen.
  11. Qualified interpreters are so important. Definitely do not use family members or friends for interpreting. It is a really bad idea for many of the reasons noted in the opinion.
  12. I don’t think I understand where the authors of Formal Opinion 500 get the idea that the ADA generally obligates the lawyer to bear the cost of procuring auxiliary aids and services. The ADA obligates the lawyer to bear those costs. As mentioned above, it is unlikely that a defense will exist for not bearing those costs.
  13. Lawyer should confirm that the individual has the expertise needed to comprehend the legal concepts and terminology before providing any interpreter services.
  14. In the absence of some kind of extraordinary circumstance, I would not use nonprofessional interpreters, including family members, because of confidentiality issues, issues of bias, and accuracy issues.
  15. The ADA standard for providing auxiliary aids and services when necessary is undue burden. The formal opinion 500 talks about “unreasonable financial burden.” Undue burden has a completely different meaning and looks to the entire resources of the entity.
  16. A qualified interpreter for a culturally deaf individual is bound by their rules of ethics to keep communications between attorney and client confidential, which is yet another reason to use a qualified interpreter.
  17. To be fair to the authors of Formal Opinion 500, they note that the ADA is very much involved here and that the opinion’s purpose is not to set forth a lawyer’s ADA obligations. Similarly, I am not opining on a lawyer’s obligation to provide interpreters for non-disability reasons.
  18. Technology is changing rapidly. For example, Zoom is nowhere the same as it was six months ago when it comes to its accessibility features and its usability by deaf and hard of hearing individuals.
  19. As we know, title II and title III of the ADA use the term reasonable modifications and not reasonable accommodations but the terms, with one case as an outlier, mean the same thing.
  20. As we also know, the effective communication rules for title II and for title III are not precisely the same either. Title II has a primary consideration rule for the person with the disability while title III does not. Instead, title III presume some sort of interactive process.

Go Braves!

Today’s blog entry deals with two questions when it comes to regarded as claims. First, just what does a person have to show to qualify for a regarded as claim? Second, for the transitory and minor exception to apply, must that be a situation where the illness is both transitory AND minor? As we will see, plaintiff survives a motion to dismiss on both grounds even though the court applies a pre-ADA amendments standard to the first question. The case of the day is Matias v. Terrapin House, Inc. decided by the United States District Court for the Eastern District of Pennsylvania on September 16, 2021, here. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning why plaintiff’s regarded as claim survives the motion to dismiss; transitory and minor; and thoughts/takeaways. Of course, the reader is free to read any or all of the categories.

 

I

Facts

 

Plaintiff was employed with Terrapin from approximately August 28, 2020 until November 22, 2020 as a direct support professional. She alleged that she received no discipline during the course of her employment until her termination on November 22, 2020. On that date, she informed Terrapin of her need for leave under the Family First Coronavirus Relief Act and disclose to Terrapin that she had received a positive Covid-19 test result. More particularly, on November 19, 2020 she texted a representative Terrapin to inform them that she felt ill. When the representative inquired into whether she was experiencing symptoms, she responded that she was losing her sense of taste and smell. Rather than provide leave, Terrapin terminated her on the same date she informed them of her positive Covid-19 test saying that she was not a good fit. She brought suit alleging violations of the Family First Coronavirus Response Act, the ADA, and the Pennsylvania Human Relations Act.

 

II

Court’s Reasoning Why Plaintiff’s Regarded as Claim Survives the Motion To Dismiss

 

  1. An individual meets the requirement of being regarded as having such an impairment if the individual establishes that he or she has been subjected to an action prohibited by the ADA because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.
  2. To prevail, a plaintiff has to show that her employer misinterpreted information about her limitations to conclude that she was unable to perform a wide range or class of jobs.
  3. A plaintiff must show that the employer believed that a major life activity was substantially limited by the plaintiff’s impairment.
  4. An exception for ADA regarded as claims exists for impairments that are transitory and minor.
  5. In order to make out a regarded as claim, plaintiff must allege that her employer perceived her to have a disability and that her employer perceived that disability to substantially impair a major life activity.
  6. Citing to the joint guidance on long-haul Covid-19 put out by the DOJ and HHS, which we discussed here, Covid-19 is a physiological condition affecting one or more body systems.
  7. The guidance states that certain forms of Covid-19 can substantially limit major life activities, such as respiratory function, gastrointestinal function, and brain function for periods lasting months after first being infected.
  8. Loss of taste or smell is one of the common symptoms of long-haul Covid-19, and plaintiff felt that she was losing her sense of taste and smell.
  9. The immediate temporal proximity between plaintiff’s disclosure of her Covid-19 symptoms, her positive test result, and her termination raises a strong inference that her employer regarded her as disabled.

 

III

Transitory and Minor

  1. Courts have made clear that transitory and minor are two separate criteria and a defendant must establish both in order to prevail in its defense.
  2. CDC indicates that Covid-19 carries with it symptoms, including fever, chills, cough, shortness of breath, difficulty breathing, fatigue, muscle or body aches, headaches, new loss of taste or smell, sore throat, congestion, runny nose, nausea or vomiting, and diarrhea.
  3. According to the CDC, Covid-19 can damage the heart, blood vessel, kidneys, brain, skin, eyes, and gastrointestinal organs.
  4. The CDC recommends one seek immediate medical care if they experience trouble breathing, persistent pain or pressure in the chest, new confusion, inability to wake or stay awake, or pale, gray, or blue colored skin, lips, or nail beds.
  5. In a footnote, the court noted that it was taking judicial notice of certain facts regarding Covid-19 “posted by the CDC on its official website.
  6. On November 22, 2020, the day plaintiff was terminated, the CDC recorded over 176,000 new Covid-19 cases in the United States alone.
  7. The hospitalization and mortality profiles of the seasonal flu pale in comparison to those associated with Covid-19. While an average of 422,000 people in the United States are hospitalized each year due to the seasonal flu, domestic Covid-19 hospitalization between August 1, 2020 and September 10, 2021 totaling over 2,876,000 people. So when viewed from the perspective of mortality, Covid-19 proves to be more deadly than the seasonal flu. Therefore, Covid-19 viewed objectively is not minor as contemplated by the amendments to the ADA.
  8. An employer may not defeat regarded as coverage of an individual simply by demonstrating that it subjectively believed the impairment was transitory and minor. Instead, the covered entity must demonstrate that the impairment is (in the case of an actual impairment) or would be (in the case of a perceived impairment) both transitory and minor.

IV

Thoughts/Takeaways

  1. Plaintiff survived a motion to dismiss despite the court applying the wrong standard in numerous places. You don’t see that a lot.
  2. The court refers to a plaintiff having to show that she was unable to perform a wide range or class of jobs. The only time this comes up is where the plaintiff alleges that working is the major life activity. Considering the amendments to the ADA, it is legal malpractice for a plaintiff’s attorney to allege working as the major life activity unless he or she absolutely has no other alternative. The wide range or class of jobs comes from Sutton v. United Airlines, here, which was overruled in many respects by the amendments to the ADA but not with respect to working as the major life activity.
  3. A plaintiff for a regarded as claim does not have to show that an employer believed that a major life activity was substantially limited. After the amendments, all a plaintiff has to show is that the employer regarded the individual as having a physical or mental impairment.
  4. Transitory and minor means exactly that. That is, for the transitory and minor exception for regarded as claims to come into play, the condition at issue must be BOTH transitory and minor. They are two separate criteria. As the court makes clear, Covid-19 is certainly not minor and it may or may not be transitory.
  5. Proximity between the adverse action and the right exercised always matters in these cases.
  6. Transitory and minor is an affirmative defense that must be established by the employer.
  7. The transitory and minor exception only applies to regarded as claims, though it can be helpful as a tool for figuring out whether a temporary disability is an actual disability per the actual disability prong.
  8. CDC guidelines was given judicial notice by the court. This could be very important for plaintiff attorneys to keep in mind when dealing with refusal to accommodate in the face of anti-mask and anti-vaccine policies where their client is immuno-compromised or at a much higher risk of severe consequences of getting Covid-19 due to underlying conditions.
  9. Transitory AND minor is an objective standard that is not dependent on an employer’s subjective belief.

Go Braves and White Sox! Congratulations to the Red Sox.

Today’s blog entry come from a case that I found through Law 360. It is a decision by Judge John Kness of the United States District Court for the Northern District of Illinois Eastern Division. The case is Magee v. McDonald’s USA, here, decided on October 5, 2021. The Law 360 article says we can expect an appeal. The issues raised by the case are just who is an operator for purposes of title III of the ADA and whether facially neutral policies can discriminate against persons with disabilities in violation of the ADA. As usual, the blog entry is divided into categories and they are: facts; McDonald’s is not an operator; McDonald’s facially neutral policy and plaintiff cannot show causation; and thoughts/takeaways. Of course, the reader is free to read any or all of the categories.

 

I

Facts

  1. Plaintiff is legally blind, suffers from macular degeneration, and cannot drive a car in the McDonald’s drive-through lane.
  2. Certain McDonald’s USA franchises only serve food late at night through the drive-through lane meaning that the plaintiff cannot order McDonald’s food late at night from those restaurants while at those McDonald’s unless he was in someone else’s vehicle.
  3. Plaintiff’s vision disability precludes him from operating a motor vehicle.
  4. Many McDonald’s restaurants close their dining lobby during late-night hours and offer only drive-through service. Late-night patrons of those restaurants have two options to obtain McDonald’s food. They can either order from a motorized vehicle through the restaurant’s drive-through window or they can order through Uber Eats.
  5. Plaintiff tried to walk through the drive-through lane during late-night hours. Each restaurant denied him service.
  6. Plaintiff’s visits to the California restaurant were part of a lawyer planned test of other McDonald’s restaurant to strengthen his case. His attorneys gave him the list of California-based McDonald’s restaurant to visit. His attorney suggested, plan, and paid for his California trip. Plaintiff visited many of the restaurants on the attorney provided list during the late-night hours. In fact, a friend of the plaintiff’s drove to the restaurants and parked in the lot where he then attempted to order food from the drive-through lane as a pedestrian to no avail. Plaintiff never attempted to order food from the drive-through as a passenger in a motorized vehicle.
  7. Neither the franchise agreement nor the operations and training manual include mandatory policies for serving restaurant patrons during the late-night hours. Both documents are also similarly silent concerning which parts of the restaurant must remain open during late-night hours. Finally, restaurants are authorized to decide whether to allow pedestrians to use the drive-through lane.

 

II

McDonald’s as the Franchisor Is Not an Operator

 

  1. The word operates means an entity that performs effectively the whole function of operating a business.
  2. Where the entity does not perform the whole function of operating a business, case law in the Seventh Circuit has said that such an entity is not an operator for purposes of title III.
  3. Some courts have even gone further by requiring for the operator label to apply to a franchisor, that the franchise agreement must specifically reflect the franchisor’s right to direct the franchisee to make an accessibility related change.
  4. Under the franchise agreement, franchisees are bound to certain mandatory policies and procedures. For example, the franchise agreement requires franchisee’s to comply with all federal, state, local laws, ordinances, and regulations affecting the operation of the restaurant at their own expense.
  5. The operations and training manual also provides for both mandatory and suggested procedures for the franchisees to implement.
  6. The operations and training manual includes an explicitly permissive chapter and procedures for keeping a restaurant lobby open or closed during late-night hours. That chapter of the manual allows the franchisee to establish its own policies, and allows the franchisee to choose the information helpful to it in operating its business. That chapter also notes that the franchisees are independent employers making their own employment policies and decisions and that they may choose to use part, all, or none of the content contained in the manual.
  7. Neither the franchise agreement nor the operations and training manual provide any required late-night service procedures for franchisees. It is up to the franchisees to independently decide whether they will be open for late-night hours, how they will be open, and what policies they will implement if they choose to remain open. In fact, some restaurants elect to stay open late at night and offer services via drive-through’s only. Others choose to keep their lobbies open and hire security guards to ensure safety. The late-night operation decision is left to the franchisees.

III

McDonald’s Policy Is Facially Neutral and Plaintiff Cannot Show Causation

  1. Title III of the ADA talks about causation in terms of whether an entity discriminates against a person on the basis of his disability. The “on the basis,” standard requires a plaintiff to prove that but for his or her disability, he or she would have been able to access the services or benefits desired.
  2. The court in a footnote cites to a previous case where a person also sued McDonald’s because of their refusal to accommodate her during late-night hours. However, at the time of that case McDonald’s did not offer delivery. Since that time, McDonald’s now offers late-night delivery through Uber Eats.
  3. The policy of denying pedestrians service in the drive-through affects all patrons of the restaurant regardless of disability. It is not the disability preventing the plaintiff from purchasing McDonald’s food during the late-night hours, rather it is the pedestrian status that limits his access.
  4. The policy prohibits both sighted and blind pedestrians from walking up and placing an order at drive-through lanes intended for customers in motor vehicles. Any bias in the policy lies in favor of customers in motor vehicles and against all manner of, “perambulating gourmands.”

IV

Thoughts/Takeaways

  1. Very interesting that the court talks about how the plaintiff financed the California trip. That in combination with the term “perambulating gourmands,” indicates that the court has had enough of serial plaintiffs, especially since neither how the California trip was financed nor a person being a “perambulating gourmand,” is germane to the decision.
  2. I am not optimistic about an appeal, which according to the Law 360 article is going to happen, because the Seventh Circuit is not a friendly place for people with disabilities.
  3. If you are a franchisor, this case makes the point that the franchise agreement and the training and operation manuals are critical pieces. On the franchisor side, giving as much leeway to the franchisee as possible is the way to go.
  4. I suppose the reason why the franchisee itself was not sued was because the deep pockets lie with McDonald’s.
  5. If you define operates as an entity that performs effectively the whole function of operating the business, does this mean you can delegate parts of the function of the business to others and not have to worry about ADA compliance? I believe the answer to that question is no as seen in this blog entry.
  6. In my opinion, it goes too far to say that an operator only exists with the franchise agreement specifically reflects the franchisor’s right to direct the franchisee to make an accessibility related change.
  7. Franchisees, at least with McDonald’s, have to comply with federal law at their own expense.
  8. Facially neutral policies are perfectly okay. In this case, the policy discriminated against pedestrians as a whole and not individuals with disabilities. To my mind, this raises a larger question about whether disparate impact cases are allowable. Whether disparate impact cases are allowable under the Rehabilitation Act will be heard by the Supreme Court within the next couple of months.
  9. With respect to plaintiff’s visit to California McDonald’s, plaintiff would have been able to use the drive-through as he was driven to those McDonald’s by a friend who waited for him in the car. One wonders if that didn’t affect the decision in some sort of subtle way.
  10. “But for” causation, has a completely different meaning than what it used to after Bostock v. Clayton County, which we discussed here. For an excellent law review article by Professor D’eandra Shu on the coming sea change in causation, see here.

Good luck to all your teams in the baseball playoffs. Go Atlanta Braves and Chicago White Sox!

I was really busy this week on a pressing client matter. So, the blog entry for the week is a bit late, which occasionally does happen. This week’s blog entry is a response to a push by those very much leading the professional recovery program efforts to expand those efforts to include cognitive screening for all physicians no matter what the situation. The article comes from an article written by Christopher C. Bundy, MD, MPH and Betsy White Williams, PhD, MPH entitled, “Cognitive Screening for Senior Physician: Are We Minding the Gap?” The article, which was published in the Journal of Medical Regulation and can be found here, concludes by saying that, “proactive, mandatory health screening for all physicians would be more effective than age-based screening and mitigating patient safety risk due to performance deficits, while also creating individual and systemic accountability aimed at health protection and workforce sustainability.” The point of this blog entry is to go through various pieces of that article and point out that the article’s suggestions are not in accordance with the provisions of the ADA or §504 the Rehabilitation Act. As usual, the blog entry it divided in the categories and they are the medical model of disability and point counterpoint. Considering the layout of the blog entry, you are probably going to want to read the whole thing.

 

I

The Medical Model of Disability

 

Professional recovery programs working in conjunction with medical licensing boards operate on the medical model of disability. Just what is that model? The best description I have seen of that model is from Prof. Kat MacFarlane’s forthcoming article in the Fordham Law Review, which is entitled, “Disability without Documentation, here.” Her view is that the ADA should operate more like the religious accommodation world does when it comes to accommodating people with sincerely held religious beliefs. When it comes to accommodating sincerely held religious beliefs, you assume that religious belief is sincere and work from that. Whereas with the ADA, to some extent there is an assumption that the disability is not something to take on face value but must be confirmed to some degree. It is a very interesting approach, and I commend the article for anyone to read. A couple of things that I will point out are: 1) the process of confirming disabilities has gotten much better for persons with disabilities with the advent of the amendments to the ADA and their final accompanying implementing regulations; and 2) employers are clamping down on their employees that do not want to get vaccinated. So, I am seeing the religious accommodation process moving away from the assumption that the belief is automatically sincere. I have been reading reports of employers putting in systems to confirm, much in the way a disability is confirmed, a sincerely held religious belief.

All this said, Prof. MacFarlane does a wonderful job of explaining the medical model and how it operates, which is very much the way the professional recovery programs working in conjunction with medical licensing boards go about their business. More specifically, Prof. MacFarlane says in her forthcoming article the following:

“The ADA was intended to reject the medical model, which focuses on diagnoses, treatment, and rehabilitation. The medical model sidelines individuals with disabilities, giving them little say over their own identity. Prior to the ADA, federal 45 29 C.F.R. § 1630.2(o)(3) (emphasis added). 46 Id. 47 Flake, supra note 34, at 75 (quoting 29 C.F.R. app. § 1630.9). 48 Id. at 76–77. 49 Id. 50 Id. 51 29 C.F.R. § Pt. 1630, App. § 1630.9. 52 Id. Electronic copy available at: https://ssrn.com/abstract=3781221 8 disability law and policy “focused on changing, fixing, or training the disabled person to help him overcome his disability and adapt to the ways of ‘normal’ society.”53 Disability was treated as a biological condition. Pursuant to the medical model, a disabled individual is helped through either “rehabilitation efforts to enable the individual to overcome the effects of the disability, or medical efforts to find a cure for the individual.”54 The medical model perceives an individual’s disability as “personal misfortune” with no social cause.55 The medical model of disability grants tremendous power to healthcare professionals. Physicians “validate the existence of disability” and serve as gatekeepers to social assistance.56 Pursuant to the medical model, “[t]he individual’s own subjective experience of impairment or limitation is irrelevant unless it can be professionally validated.” 57 Validation requires a physician, who alone can “diagnose or categorize the cause of an impairment” and also “measure and document its functional impact.”58” (Prof. Kat MacFarlane, Disability Without Documentation, forthcoming article in volume 90 of the Fordham Law Review, at pages 7-8).

I could not have said what the medical model is better myself.

II

Point/Counterpoint

 

  1. On page 42 of the Bundy article, which can be found here, this statement appears: “… cognitive impairment afflicts physicians across the career span, not just older physicians. If the overarching goal is to prevent patient harm through early detection of cognitive impairment in physicians, older physicians may, in fact, be too narrow a target.” 107 Journal of Medical Regulation 42. The problem with this statement is that it is not in accordance with the ADA and §504 of the Rehabilitation Act because preventing harm through early detection is not what the ADA or the Rehabilitation Act are all about. Rather, the question is in the case of employment is whether the person is a qualified individual with a disability. That is, do they meet the requisite requirement for the job by way of training, education, skills, etc. and whether they can do the job’s essential functions with or without reasonable accommodations without constituting a direct threat to self or others. Similarly, when it comes to medical licensing boards the only question is whether the licensee is a qualified individual with a disability per the ADA. Under title II, the question becomes Selectman raise whether they meet the essential eligibility requirements of the program and whether they can do that program with or without reasonable modifications and without constituting a direct threat to others. So, the premise of the paragraph is to weed out people with disabilities or show an early need to fix or cure a person with a disability. That is just not the way the ADA and the Rehabilitation Act roll. Also, keep in mind that the ADA per 42 U.S.C. §12102, protects all of the following categories: 1) a person with an actual disability; 2) a person with a record of a disability; and 3) a person who is regarded as having a disability. So, the emphasis in the ADA and in the Rehabilitation Act is not on whether the disability can be fixed or cured, which is in essence a personal choice, but rather whether the person is qualified per the ADA for the job or the program and does not constitute a direct threat. Finally, direct threat is a much higher standard, as we have discussed numerous times such as here, than the amorphous, “patient harm.”
  2. On page 43 of the article, the authors say, “age-based cognitive screening of physicians has received considerable pushback from the medical community and raises ethical and legal issues regarding age discrimination.” 107 Journal of Medical Regulation 43. This is absolutely true. The EEOC has currently sued Yale University hospitals for such a program. That case is ongoing. The EEOC also is in the process of settling with Yale University hospitals a lawsuit involving how they implement their wellness programs. What is missing from this paragraph is any recognition that such cognitive screening creates serious issues of noncompliance with the ADA and §504 of the Rehabilitation Act.
  3. On page 44 of the article, the authors say, “if our overarching goal is to prevent patient harm through early detection of cognitive impairment in physicians, older physicians may be too narrow a target.” 107 Journal of Medical Regulation 44. Patient harm is not the standard under the ADA. As mentioned above, the question is whether the individual is a direct threat to self or others if the individual’s employer is doing the evaluation, or whether the individual is a direct threat to others if it is the medical licensing board or the professional recovery program doing the evaluation. Such an overarching goal creates problems with respect to giving people a record of a disability, which they may or may not actually have, and certainly creates problems by regarding people as having a disability.
  4. Also on page 44, the authors say, “…merely focusing on concerns related to aging may be a convenient and more comfortable proxy for the larger problem of proactive identification of potentially impairing health conditions at any age.” Id. (Emphasis mine). “Potentially impairing health conditions,” is a term you see all over the Federation of State Medical Boards Policy on Physician Impairment. With respect to ADA compliance, using such a term as your touchstone, will keep ADA defense lawyers very busy and allow plaintiffs lawyers to gravitate to such cases. The term “potentially impairing health conditions,” is simply not consistent with the ADA or the Rehabilitation Act. The question is under the ADA/Rehabilitation Act whether you have an actual disability, a record of a disability, or are regarded as having a disability. Using “potentially impairing,” means that you are automatically regarding that individual as having a disability and allowing him or her to be protected by the ADA. Remember, for a person to be protected under the ADA all they have to show is one of the three definitions of disability.
  5. Again on page 44, the authors state, “we suggest that the value of the physician as healthiest self be woven into the physician identity beginning in medical school and reinforced throughout the career span.” Id. No one can argue with the idea that everybody should be as healthy as they possibly can. However, the language clearly suggests that people with disabilities are simply not healthy. Whether you are healthy or have a disability are two completely different concepts.
  6. On page 45, the authors state, “other safety sensitive professions-such as airline pilot, air traffic controllers, police officers, and firefighters-recognize the link between health and performance and undergoing routine compulsory health screening. The absence of such screening for physicians is a conspicuous gap in the professional self-regulation of physicians. If we are truly committed to protecting our workforce and promoting patient safety, then we should mind this gap and consider the merits of mandatory routine health screening for all physicians. This is particularly important, and physicians may have difficulty acknowledging that they are unwell and tend to underutilize health services.” 107 Journal of Medical Regulation 45. The problem with this particular statement with respect to ADA/Rehabilitation Act compliance are numerous. First, under title I of the ADA medical examinations and disability related inquiries of current employees can only be done when there is reason to believe that such a medical exam/inquiry is necessary because it is job-related and consistent with business necessity. We have discussed job-related and business necessity many times before in the blog, such as here and here. Second, the ADA in both title I and title II prohibits policies and procedures that screen out people with disabilities. Clearly, compulsory health screening is such a policy. Finally, if my experience in my practice is any indication, such compulsory screening would not take into account whether the person is qualified per the ADA or whether the person constitutes a direct threat to self or others or to just others, depending upon what title of the ADA is at issue.
  7. Also, on page 45 of the article, this appears, “we recognize that the prospect of mandatory health screening over the career span is likely to be met with resistance. However, we have argued that health conditions that could negatively (emphasis mine), impact physician performance and patient safety are not limited to older physician; thus, the rationale for screening is valid for all physicians. We have also suggested that age is but one factor, probably less important than health, in the complex interplay between cognition and practice performance.” Id. This paragraph also has several problems with respect to ADA/Rehabilitation Act compliance. First, “that could negatively,” is really the same term as, “potentially impairing.” Those terms are not consistent with the ADA/Rehabilitation Act. Second, patient safety is not the issue either under the ADA or the Rehabilitation Act. The question is direct threat. Further, direct threat is a high standard as we have discussed here. Finally, the prospect of mandatory health screening over the career span should be met with resistance because it is not in accordance with the ADA or the Rehabilitation Act.
  8. On page 46 of the article, the authors say this, “physicians who have positive screen that result in the need for further health evaluation could be directed to their State Physician Health Program. State Physician Health Programs (PHP’s) have a highly effective model to address and rehabilitate impairing health conditions in physicians and other health professionals.” 107 Journal of Medical Regulation 46. While one may or may not quibble with the substance of the statement, the statement by itself is neutral enough on its face. However, title I of the ADA final implementing regulations and the technical assistance memorandums for title II and title III of the ADA make clear that any such evaluations need to be narrowly focused, which, if my experience in my practice is any indication, does not happen with regularity.
  9. Also, on page 46 of the article, the authors say, “should health screening and follow-up reveal an impairment, substantial risk of impairment, or risk of dyscompetence/incompetence, the PHP and physician would work together along the traditional PHP pathway with the goal of rehabilitating the physician’s safe continuation of, or return to, practice.” Id. There are numerous problems here with respect to ADA/Rehabilitation Act compliance. First, absolutely nothing wrong with having an impairment. All kinds of people have impairment. The question is under title I and II of the ADA is whether they are a qualified person per the ADA with a disability. Second, as mentioned previously, the potential for impairment plays no role in ADA analysis. The question is whether the individual is a direct threat to self or others should an employer be doing the evaluation or whether the individual is a direct threat to others should the medical licensing board or the PHP be doing the evaluation. Finally, the language makes it very very clear that what is going on here is the medical model of disability which the ADA as amended largely, but certainly not entirely, does away with.
  10. As I have mentioned, public safety is not the standard rather direct threat is. However, public safety may come into play with respect to the burden of proof for establishing direct threat, as we discussed here. That said, direct threat and who has the burden of proof for establishing direct threat are not at all the same thing.
  11. The term qualified does not appear in title III of the ADA at all, but the paradigm of the ADA is such that the term must be implied. Otherwise, how can a title III entity convincingly show that a reasonable modification is a fundamental alteration to how their business operates.
  12. The medical model described in this article also has serious implications for the healthcare sector because many ADA qualified healthcare providers will be and are being pulled from the profession so that their disability can be fixed or cured even though they are perfectly capable of performing the essential functions of their job with or without reasonable accommodations and do not constitute a direct threat to others. They also meet all the essential eligibility requirements for their profession as well.
  13. Fortunately, my understanding is that the legal profession has not yet gone the route of the medical profession with respect to the “potentially impaired,” attorney. For the reasons laid out in this article, I sincerely hope that the legal profession does not go down this path. Since lawyers worry about complying with the law, I would hope that we would know better. Finally, I would also refer readers to the blog entry I previously wrote on the issues contained in this blog entry as well.

Go Braves and go White Sox. Good luck to all of your teams in the baseball playoffs.

Emotional support animal fraud is a big deal for not only businesses but for people with disabilities with service animals. Businesses and landlords have to manage it. People with disabilities with service animals wind up in a situation where their service animals might be in jeopardy. Also, the emotional support animal abuse creates a presumption that the person with the disability does not have a service animal. Accordingly, various states are passing laws to deal with this issue. We previously discussed what Illinois did here. Just recently, on September 8, 2021, California enacted a law dealing with emotional support animals, and I thought it would be worthwhile discussing. Before going further, I do have to disclose that I am not a licensed attorney in California even though my first law degree was from the University of San Diego. I knew early that I did not want to practice in California, so I never took the California bar. So, what is offered here is just a look at the plain meaning of the statute. If you have any questions, you do want to consult an attorney licensed in California. As usual the blog entry is divided into the categories, which are the provisions of Assembly Bill #468 and thoughts/takeaways. The blog entry is such that you will want to read the whole thing.

 

I

What Are the Provisions of Assembly Bill #468

  1. A business or a person selling or providing a dog for use as an emotional support dog “shall,” provide a written notice to the buyer or recipient of the dog stating all of the following: 1) the dog does not have the special training required to qualify as a guide, signal, or service dog; 2) the dog is not entitled to the rights and privileges accorded by law to a guide, signal, or service dog; and 3) knowingly and fraudulently representing oneself to be the owner or trainer of any canine license as, to be qualified as, or identified as, a guide, signal, or service dog is a misdemeanor.
  2. A person or business selling or providing a certificate, identification, tag, vest, leash, or harness for an emotional support animal “shall,” provide a written notice to the buyer or recipient stating all of the following: 1) the item does not entitle an emotional support animal to the rights and privileges accorded by law to a guide, signal, or service dog; 2) knowingly and fraudulently representing oneself to be the owner or trainer of any canine license as, to be qualified as, or identified as, a guide, signal, or service dog is a misdemeanor; 3) the written notice “shall,” be made in at least 12 point bold type, and shall be provided on the receipt for the emotional support dog or the product described or on a separate piece of paper.
  3. A healthcare practitioner “shall,” not provide documentation relating to an individual’s need for an emotional support dog unless the healthcare practitioner complies with all of the following: 1) possesses a valid, active license and includes the effective date, license number, jurisdiction, and of professional license in the documentation; 2) is licensed to provide professional services within the scope of the license in the jurisdiction in which the documentation is provided; 3) establishes a client-provider a relationship with the individual for at least 30 days prior to the providing the documentation requested regarding the individual’s need for an emotional support dog; 4) completes a clinical evaluation of the individual regarding the need for an emotional support dog; and 5) provides a verbal or written notice to the individual that knowingly and fraudulently representing oneself to be the owner or trainer of any canine license as, to be qualified as, or identified as, a guide, signal, or service dog is a misdemeanor.
  4. A healthcare practitioner may be subject to discipline from the healthcare practitioner’s licensing board for a violation of the statute.
  5. Violation of the statute are subject to a civil penalty of $500 for the first violation, $1000 for the second violation, and $2500 for the third and any subsequent violation.
  6. The Atty. Gen. may bring an action for civil penalties as well as a district attorney, County Counsel, and city attorneys.
  7. The statute does not preempt any rights afforded under the California Fair Employment and Housing Act, the Unruh Civil Rights Act, or the Disabled Persons Act.
  8. Emotional support animal means an animal that provides emotional, cognitive, or other similar support to an individual with a disability, and that does not need to be trained or certified.
  9. Emotional support dog means a dog providing emotional, cognitive, or other similar support to an individual with a disability, and that does not need to be trained or certified.
  10. Guide, signal, or service dog references back to specific California statutory provisions in the Penal Code and in the Civil Code.

II

Thoughts/Takeaways

 

  1. I have to confess that much of the statute doesn’t make a lot of sense to me.
  2. “Shall,” can have up to seven different meanings, which is why the word appears in quotes in this blog entry. Commonly, it has up to four different meanings. For example, if your child says “I shall clean up my room,” what does that mean in terms of timeframe? As we all know, it may mean immediately, soon, not so soon, or never. So, we are left with the question of whether “shall,” is mandatory or whether it just means maybe maybe not.
  3. California has a misdemeanor statute for people who knowingly and fraudulently represent their animal as a service animal, which is not the case in all other states in the country.
  4. A dog by existing is an emotional support animal. Therefore, a real question arises whether everyone selling a dog in California must provide the notice described in the statute.
  5. I realize that California has specific meaning for guide, signal, or service dog. Keep in mind, that the ADA doesn’t break it down that way. The animal is a service animal or not. Under the ADA, as we discussed here, a service animal must be a dog, though miniature horses get similar treatment after a balancing test is applied. Also, the Fair Housing Act circular has its own set of rules, discussed here. Whether that circular is at all persuasive to the courts is another question per this blog entry because the circular is not based upon any regulation or even any statutory provision.
  6. With respect to the healthcare provider, the statute says that the healthcare provider must be licensed to provide professional services within the scope of the license and in the jurisdiction in which the documentation is provided. I don’t have a problem with understanding what is the scope of the license. However, what does “in the jurisdiction in which the documentation is provided,” mean? Are we talking at the state level or are we talking at some level below that? It just isn’t clear.
  7. It can be somewhat problematic that a client-provider relationship must be in place 30 days before submitting any documentation of the need for an emotional support dog. What if a person who needs an emotional support animal has just moved to the state? They can’t use an out-of-state provider per the statute. So, are they supposed to go without their emotional support animal for 30 days until they can find a healthcare practitioner to meet with them and recognize that they need an emotional support animal?
  8. A healthcare practitioner that does not follow the statutory provisions of this law is subject to discipline by their licensing board.
  9. Civil penalties are in order for violations of the statute.
  10. Emotional support animals and emotional support dogs are not certified. Why the language of certification appears in the definition of emotional support animal and emotional support dog in this statute is hard to figure out.
  11. The written notice must be in 12 point bold type, but nothing is said about making the notice accessible to a person with a visual impairment. So, don’t forget about the ADA.
  12. The statute has all kinds of problems. I prefer the Illinois statute on the subject, which we discussed here.
  13. I am not a California licensed attorney. Be sure to get such an individual at this law has all kinds of questions arising from it.

Next week, my daughter is on break and will be making college trips with each of her parents to different parts of the country. Then, all of us will meet up to see both sides of the family at the end of the week. So, I am hoping that I can get a blog entry up next week on either Wednesday, Thursday, or Friday. That said, it is going to be very hectic. So, do not be surprised if a blog entry does not go up next week. I anticipate my next blog entry will be posing a rebuttal to those pushing the medical model of disability in a big way when it comes to physician competency.

 

Today’s blog entry is a two for one. We are going to discuss two short cases. In the first, we will discuss the case, Nix v. Advanced Urology Institute of Georgia, that we previously blogged on here. The 11th Circuit in an unpublished decision affirmed that case. In the second, we will discuss the case of Heck v. The Copper Cellar Corporation, which presents the interesting question of what happens when you have an ADA disability discrimination case and statewide procedural hurdle for matters arising out of the Covid-19 pandemic. As usual, the blog entry is divided into categories and they are: why plaintiff justifiably appealed the lower court decision in Nix; the 11th Circuit Nix decision; Nix takeaways; Heck facts; Heck reasoning; and Heck takeaways. Of course, the reader is free to concentrate on any or all of the categories.

 

I

Why Plaintiff Justifiably Appealed the Lower Court Decision in NIX

 

Previously, here, we discussed the lower court decision in Nix v. Advanced Urology Institute of Georgia. If you recall, the lower court granted summary judgment to Advanced Urology. In that blog entry, I said that the plaintiff should appeal it for the following reasons:

 

  1. While the court found that effective communication was not present here, it didn’t mention the standard in Silva I, which is: “To be ineffective communication, it is sufficient if the patient experiences a real hindrance, because of her disability, which affects her ability to exchange material medical information with her health care providers. This standard is consistent with the requirement that hospitals afford a level of communication to a deaf patient about medically relevant information that is substantially equal to that afforded to non-disabled patients.”
  2. To show deliberate indifference in the 11th Circuit, Liese v. Indian River Community Hospital District, which we discussed here, a plaintiff has to show that the defendant: (1) knew they had failed to provide plaintiff with appropriate auxiliary aids necessary to ensure effective communication; (2) had the authority to order that aid be provided; and (3) was deliberately indifferent as to defendant’s failure to provide aid. A deliberate refusal to provide the auxiliary aid and service does constitute deliberate indifference under Silva I, discussed here.
  3. The court frequently cited to Silva II, here, which vacated the summary judgment on deliberate indifference but threw out the injunctive relief claim due to policy changes of the Defendant (the policy changes required: the provision of live in person interpreters upon request by a patient or guest; provided for VRI while waiting for a live interpreter; and provided for the scheduling of live interpreters for regularly scheduled appointments), as a basis for their decision. However, the impression created is not right. In Silva II, here, the 11th Circuit said that deliberate indifference by itself is not the exacting standard, per Nix’s understanding for example, rather deliberate indifference requires that the indifference be a deliberate choice, which is not the same thing.
  4. Silva II said that deliberate indifference occurs when the defendant knew that the harm to a federally protected right was substantially likely and failed to act on that likelihood. In other words, plaintiff must show ineffective communication done with knowledge that it was substantially likely to occur.

 

II
The 11th Circuit Nix decision

 

The 11th Circuit wasn’t having any of it. In particular, the 11th Circuit in an unpublished opinion reasoned as follows:

 

  1. The most plaintiff established was negligence in selecting an interpreter and not deliberate indifference to plaintiff’s rights.
  2. Defendant’s administrative personnel believed that the person she hired was a qualified interpreter.
  3. Defendant’s administrative personnel was told by a friend of the interpreter that the interpreter was qualified.
  4. Advanced Urology did not ignore plaintiff’s request for an interpreter.
  5. Plaintiff simply cannot prove deliberate indifference and therefore cannot recover any monetary damages, whether it be compensatory or nominal.

 

III

Nix Takeaways

 

The takeaways that I mentioned in my prior blog entry with additional modifications and additions, bear repeating.

 

  1. I, with co-counsel, have previously represented culturally deaf individuals (Deaf). From my experience, the culturally deaf can be a little too trusting of the hearing community at times. If you are representing a culturally deaf individual seeking medical care, you absolutely have to insist that he or she not go through with the appointment the minute they realize that a qualified interpreter is not there. They just HAVE TO WALK AWAY IMMEDIATELY. You have to tell the culturally deaf individual to not even engage in the exchange of written notes except for the purposes of saying that he or she needs a qualified interpreter.
  2. The court creates a higher standard for deliberate indifference than what was created in Liese, which we discussed here. It resembles more the deliberate indifference standard adopted by the Seventh Circuit in a case we discussed here.
  3. While the court says effective communication did not occur, they didn’t bring up the Silva I standard, which is whether communication was hindered.
  4. If you are representing a culturally deaf individual in a case like this, it becomes really important to have a table interpreter, an interpreter that acts very much as part of the legal team, who really understands how interpreting can go awry when a qualified interpreter is not involved. Also, be prepared to have an expert talk about the English ability levels of the plaintiff and the importance of ASL given that English ability (with respect to a culturally deaf individual, it is not unusual for such individuals to have English reading skills not higher than fourth grade if that).
  5. Prior to a culturally deaf individual walking away from the appointment, it is really helpful if the culturally deaf individual makes clear in writing that the interpreter is not qualified and that they will not take any medical care offered until a qualified interpreter is present. Make sure the person keeps a copy of that written notification as well.
  6. Depending upon your state, there may be informed consent concerns as well when a qualified interpreter is not provided for a culturally deaf individual. In the case that I served as co-counsel on, we had both informed consent claims as well as ADA claims in our complaint.
  7. Since the interpreter was not a qualified interpreter and not bound by an interpreter code of ethics, there may be a breach of confidentiality claims against the physician in this kind of scenario.
  8. Another problem I have with this opinion is that it rewards ignorance of the culturally deaf community. Anybody with familiarity of the culturally deaf community would not have hired this particular interpreter in the first place and would have instantly known that the interpreter was not qualified. Yet under this decision, the defendant is rewarded for their ignorance.
  9. One wonders if an en banc hearing would not be requested in light of the panel ignoring Silva I and its narrowing of Liese. I did not see anything in the docket to suggest that this is happening, at least not yet.
  10. The decision is unpublished. Even so, while its precedential value is limited, attorneys are going to look at this decision for guidance. Also, depending upon the jurisdiction there are ways that even an unpublished decision could be cited. I suppose the nature of an unpublished decision could be one reason why people focusing on disability rights might hope that an en banc review is not sought. That said, the 11th Circuit is generally very pro-disability rights and how this decision rewards ignorance of the culturally deaf community is not a good thing. Also, the decision severely narrows Silva I and Liese. So, maybe an en banc rehearing request is in order and might be successful.

 

IV

Heck Facts

 

  1. Plaintiff asserted claims for violation of the Tennessee Disability Act and the ADA based upon termination of her employment. In particular, she alleged that she was discriminated against because of her asthma and increased risk of serious illness from Covid-19 and that the defendant discharged her rather than accommodate her by limiting her risk of exposure. She sought compensatory damages for lost wages and emotional distress.
  2. Tennessee has a Covid-19 recovery act containing the following salient provisions: 1) a clear and convincing evidence standard; 2) requirement of a verified complaint pleading with specific facts from which a finder of fact could reasonably conclude that the injury was caused by the defendant’s gross negligence or willful misconduct; 3) requirement of a certificate of good faith from plaintiff’s counsel saying that he or she has consulted with a Covid-19 knowledgeable physician duly licensed to practice in Tennessee or in a neighboring state and that the physician believes the Covid-19 was caused by the alleged act or omission of the defendant. Failure to meet the requirements laid out in this particular paragraph of the blog entry results in granting a motion to dismiss with prejudice.

 

V

Heck Reasoning

 

  1. The Tennessee law does not deprive federal courts of subject matter jurisdiction simply because some of the allegations relate to Covid-19.
  2. Plaintiff’s claims arise from the alleged discrimination and retaliation related to her asthma.
  3. While her request for accommodation related to her increased vulnerability to Covid-19, her claims do not arise from Covid-19 for purposes of the Tennessee law.
  4. The expansive reading of the Tennessee law advocated by the defendant would deprive federal courts of their ability to hear federal claims when there are state legislative procedural hurdles. Such a reading violates the most basic principles of federalism and leads to inconsistent application of federal law and inconsistent access to federal court based upon the forum state’s policy concerning state law claims.
  5. Plaintiff asserts a federal claim, and therefore the federal court plainly has jurisdiction.

 

VI

Heck Takeaways

 

  1. A lot of states have coronavirus liability laws now. This case shows that such laws are not going to bar federal disability discrimination claims nor should they.
  2. The decision denies a motion to dismiss. So, a trial is next. Of course, plaintiff will have to get by summary judgment.
  3. You are going to see a lot of claims dealing with failure to accommodate people who are an increased risk should they get Covid-19, especially in states with anti-mask and anti-vaccine mandates or policy preferences. The EEOC just filed such a claim in Georgia, here, and others are on the way no doubt. In those situations, objective medical science will be critical. Plaintiffs will want to have access to the medical science, which is publicly available, and access to coronavirus experts wouldn’t hurt either.
  4. Individual cases may go differently depending upon the location you are in. For example, if you are in a jurisdiction that is mandating vaccines and mandating mask wearing, the whole accommodation process can go quite a bit differently. In jurisdictions with anti-mask and anti-vaccine mandates/policy preferences, work from home is going to be something that will have to be seriously considered.
  5. Definitely read Chevron v. Echazabal, here, and School Board of Nassau County, Florida v. Arline, here. Both of those cases discussed direct threat and direct threat as discussed in those cases has been incorporated into ADA final regulations, here (title I), here (title II), and here (title III).

Previously, I mentioned that the upcoming Supreme Court term will have two cases before it pertaining to the rights of people with disabilities. One of those cases asks the question of whether disparate impact claims exist under §504 of the Rehabilitation Act. On August 24, 2021, the Ninth Circuit over a dissent said that such claims were allowed in Payan v. Los Angeles Community College District, here. As usual, the blog entry is divided into categories and they are: facts; what happened at the district court level; majority opinion/private right of action exists for disparate impact claims; majority opinion/disparate impact should not have been applied to all claims; dissenting opinion by Judge Lee; and thoughts/takeaways. Of course, the reader is free to concentrate on any or all of the categories.

 

I

Facts (Taken from Opinion)

 

Upon their enrollment at LACC, Payan and Mason each registered for disability accommodations through the college’s Office of Special Services (“OSS”). Payan and Mason’s approved accommodations included tape-recorded lectures, preferential seating, receiving materials in electronic text, and test-taking accommodations, and Mason received additional accommodations in the form of weekly tutoring. Both Payan and Mason use a screen reading software called Job Access with Speech (“JAWS”) to read electronic text. Screen reading software allows blind users to read electronic text by converting electronic text and images into audio descriptions or a Braille display.

 

Despite being granted individual accommodations, Payan and Mason each encountered accessibility problems while taking classes at LACC. While some of these accessibility barriers affected Payan and Mason individually, others affected blind LACC students generally. Plaintiffs categorized these accessibility barriers into the following five general inaccessibility claim categories: (1) in-class materials; (2) textbooks; (3) educational technology; (4) websites and computer applications; and (5) research databases in the LACC library.

 

First, Payan and Mason each took LACC classes in which they were not provided with in-class materials, such as handouts and PowerPoint presentations, in an accessible format at the same time that their classmates received the materials. LACC has a general written Alternate Media Production Policy (“AMPP”) which requires all instructional materials be made accessible to students with disabilities. Despite this written policy and being approved for individual accommodations, Payan took a philosophy course in which his professor did not provide him with class handouts in an accessible format. Similarly, Mason took a psychology course in which the professor utilized a handbook for in-class discussion, but Mason was only provided with a paper copy which she was unable to review. Mason took another psychology class in which the professor lectured using PowerPoint presentations, which Mason was able to download for review after class but which were not accessible because they were not fully compatible with screen reading software.

 

Second, Plaintiffs alleged they were unable to access certain textbooks required for their LACC courses. The AMPP requires that instructional materials purchased from third parties, such as textbooks, be made accessible to students with disabilities, that the college must proactively evaluate the accessibility of its instructional materials, and it establishes a process by which students with disabilities may request inaccessible materials be reproduced to them in an accessible format. Despite this policy and his individual accommodations, Payan enrolled in a math class in which he was not timely provided an accessible version of his textbook. Payan was required to take his math textbook to OSS to have it converted to an accessible format in a piecemeal manner. However, because OSS could not digitize Payan’s textbook quickly enough for Payan to keep up with his course, he received his accessible assignments late and fell behind in the course as a result.

 

Third, despite the requirements of the AMPP and his individual accommodations, Payan took multiple LACC courses which utilized inaccessible computer programs to facilitate class work. Payan’s math class required students to complete and submit homework assignments through a computer program called MyMathLab. MyMathLab was not compatible with screen reading software. Because Payan was unable to complete homework assignments using MyMathLab, and because he was not timely provided with accessible textbook assignments, he fell behind in his coursework.

 

Fourth, Plaintiffs identified a variety of accessibility barriers to utilizing LACC’s website resources which impacted all blind students. LACC’s front-facing website, as well as its internal online student portal—operated through a program called PeopleSoft—were not compatible with screen reading software. Plaintiffs put forward evidence that reasonable website programming modifications existed which could resolve these accessibility barriers, and LACCD failed to offer any evidence to rebut or contradict this evidence.

 

Fifth, Plaintiffs identified accessibility barriers in LACC’s library research databases, many of which were not compatible with screen reading software. Despite the AMPP and her individual accommodations, Mason was unable to complete a research paper for a psychology course because the professor required use of an inaccessible research database for the assignment. Although some of the library’s online databases were accessible to blind students, the library did not conduct regular accessibility checks and did not test programs for accessibility before the library acquired them, as the AMPP required. Instead, accessibility was only tested when a blind student reported an accessibility problem.

 

II

What Happened at District Court Level (Taken from Opinion)

 

After the district court instructed Plaintiffs to reframe their disability discrimination arguments through a disparate impact framework only, it granted summary judgment for Plaintiffs on the claims related to Payan’s access to his math textbook and MyMathLab assignments. The district court also found that LACCD discriminated against blind students as a matter of law based on the accessibility barriers present in the LACC websites and library database, but it declined to impose liability at that time because Plaintiffs had not yet met their burden to show reasonable modifications existed to remedy this discrimination.

 

After a two-day bench trial on liability, the district court additionally found that LACCD violated the ADA and Section 504 by providing Mason with an inaccessible handbook in her psychology class and through its use of the inaccessible LACC website and library databases. Then, after a three-day jury trial on damages, the jury found LACCD’s discrimination against Payan was deliberately indifferent and awarded $40,000 in compensatory damages to Payan but no damages to Mason. Following the bench and jury trials, the district court entered a permanent injunction and final judgment in favor of Plaintiffs. The permanent injunction requires LACCD to: (1) come into compliance with its AMPP; (2) evaluate its library databases for accessibility and establish means of alternate access to inaccessible databases for blind students; (3) designate a Dean of Educational Technology; (4) make the LACC website and embedded programs accessible to blind students; and (5) assess educational materials for accessibility before acquisition and to establish means of providing accessible alternative materials to blind students in a timely manner. LACCD appealed, and Plaintiffs conditionally cross-appealed.

 

III

Majority Opinion (Judge Tallman)/ Private Right of Action Exists for Disparate Impact Claims.

 

  1. Since 1996, the Ninth Circuit has recognized disparate impact claims in title II of the ADA cases.
  2. In 2001, the Supreme Court in Alexander v. Sandoval, here, held that no private right of action exists to enforce the disparate impact discrimination regulations promulgated under title VI of the Civil Rights Act of 1964.
  3. A close read of Sandoval reveals that title VI’s limitation to only intentional discrimination is not based upon the statutory text of the Civil Rights Act. That is, Sandoval relied on two prior United States Supreme Court cases considering the scope of title VI. Accordingly, the similar statutory language in §504 and the ADA does not create an analogous limitation on disparate impact disability discrimination claims. So, Sandoval did not upset the historical understanding that §504 and the ADA were specifically intended to address both intentional discrimination and discrimination caused by thoughtless indifference or benign neglect, such as physical barriers to access public facilities.
  4. The ADA must be construed broadly in order to effectively implement the ADA’s fundamental purpose of providing a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.
  5. Following Sandoval through the equal protection jurisprudence governing disability-based classifications, you get to the same place. That is, legal classifications based upon disability are subject only to rational basis review unlike race-based distinctions.
  6. Unlike title VI’s prohibition of race-based discrimination, equal protection jurisprudence surrounding disability-based classifications permits civil rights statutes to prohibit disparate impact discrimination.
  7. Nothing in Sandoval disturbs prior case law saying that disparate impact disability discrimination claims remain enforceable through a private right of action.

 

IV

Majority Opinion (Judge Tallman)/The Disparate Impact Framework Should Not Have Been Applied to All of Plaintiff’s Disability Discrimination Claims

 

  1. Title II of the ADA prohibits public entities from discriminating on the basis of disability. §504 does the same with respect to recipients of federal funds.
  2. The two laws get interpreted in the same way because there is no significant difference in the analysis of rights and obligations created by the two acts.
  3. To state a prima facie case for violating title II of the ADA, a plaintiff has to show: 1) he is a qualified individual with a disability; 2) he was either excluded from participation in or denied the benefits of a public entity’s services, program, or activities, or was otherwise discriminated against by the public entity; 3) such exclusion, denial of benefits, or discrimination was by reason of his disability.
  4. The elements of a prima facie case under §504 are similar with the additional requirement that a plaintiff has to prove that the program receives federal financial assistance.
  5. The only question at issue in this case is whether defendant’s action, practices, and policies discriminated against the plaintiffs.
  6. Prohibited forms of disability discrimination include, 28 C.F.R. §35.130(b)(1), denying individuals with disabilities the opportunity to participate in a program or service, providing an unequal opportunity to participate in the program or service, and providing the entity’s program or service in a way that is not effective in affording the individual with the disability an equal opportunity to obtain the same result as provided to others.
  7. 28 C.F.R. §35.130(b)(7)(i) requires public entities to make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that the making the modifications would fundamentally alter the nature of the service, program, or activity.
  8. Disability discrimination claims can be based on any of three different theories of liability: 1) disparate treatment, 2) disparate impact; or 3) failure to make a reasonable accommodation.
  9. In a footnote, the court notes that “reasonable modification,” (title II, title III), creates identical standards to the ADA’s title I term “reasonable accommodation,” and the two may be used interchangeably.
  10. In a disparate impact claim, a plaintiff must allege that a facially neutral government policy or practice has the effect of denying meaningful access to public services to people with disabilities.
  11. To state a reasonable accommodation claim, a plaintiff need not allege either disparate treatment or disparate impact.
  12. If a public entity’s practices or procedures deny people with disabilities meaningful access to its programs or services causing a disparate impact, then the public entity is required to make reasonable modifications to its practices or procedures.
  13. Although failure to make a reasonable accommodation and disparate impact are two different theories of a title II claim, a public entity may be required to make reasonable modifications to it facially neutral policies that disparately impact people with disabilities.
  14. The difference between the two theories is that a reasonable accommodation claim is focused on an accommodation based on an individualized request or need, while a reasonable modification in response to a disparate impact finding is focused on modifying a policy or practice to improve systemic accessibility.
  15. Ninth Circuit case law provides no justification for limiting disability discrimination claims to only the failure to accommodate theory of liability in the higher education context. That said, the district court did err in requiring plaintiffs to present all of their claims as disparate impact claims.
  16. Some of the claims in the complaint are true disparate impact claims, such as: 1) allegations pertaining to systemic accessibility barriers and campus websites or the library; and 2) the defendant had facially neutral practices of selecting classroom material from third parties and only evaluating the accessibility of those materials on an ad hoc, complaint-driven basis rather than in compliance with the campus’s own policies.
  17. Where a plaintiff challenges a program’s policy or practice of failing to remedy systemic barriers rather than the individual’s experience with requesting accommodations to address those barriers, this type of claim is more appropriately evaluated under the disparate impact framework than under the failure to reasonably accommodate framework.
  18. Certain claims are specific to the individual plaintiffs in the case and should have been considered through the individual failure to accommodate framework rather than through the disparate impact framework, such as those pertaining to receiving materials and accessible e-text and certain classroom accommodations.

V

Dissenting Opinion by Judge Lee

 

  1. 504 and title II of the ADA statutory claim language prohibits intentional discrimination only and a court must abide by Congress’ policy choice.
  2. The Supreme Court has suggested that the ADA and §504- like title VI of the Civil Rights Act of 1964- do not permit disparate impact claims.
  3. Nothing in either text remotely suggests encompassing a disparate impact theory, which holds that even facially neutral laws are discriminatory if they have an unintended disproportionate effect on certain groups.
  4. Title II of the ADA provides, 42 U.S.C. §12132, that no qualified individual with a disability shall by reason of such disability (emphasis in the dissent), be excluded from participation in or denied the benefits of the services, program, or activities of a public entity, or be subjected to discrimination by any such entity.
  5. The phrase “by reason of,” means “because of,” or “due to.” That is, title II prohibits discrimination only because of or due to disability status. Accordingly, it requires intentional discrimination based upon disability and does not contemplate disparate impact.
  6. 504 is an even clearer case because causation, per 29 U.S.C. §794a, is “solely by reason of.”
  7. The Sixth Circuit has held that §504 does not contemplate a disparate impact theory.
  8. When the Supreme Court has found that a statute prohibits disparate impact discrimination, it has relied on language like “otherwise adversely affect,” or “otherwise make unavailable,” both of which refer to the consequences of an action other than an actor’s intent. No such language appears in §504. So, for better or worse, Congress apparently prohibited only intentional discrimination against people with disabilities. It did not authorize a disparate impact theory and a private right of action should not be inferred.
  9. In Sandoval, the Supreme Court specifically left open whether a disparate impact claims survive under statute analogous to title VI or those directly depending upon it.
  10. In a footnote, the dissent notes that the Supreme Court has agreed to hear a case addressing the question of whether disparate impact claims are available in §504 cases or under statutes depending upon §504.
  11. The 10th Circuit has held that the Rehabilitation Act allows for a disparate impact claim because the Rehabilitation Act has a different aim and was enacted in different contexts from the Civil Rights Act of 1964. On the other hand, the Sixth Circuit has adopted a contrary view.
  12. The ADA contains an explicit mandate that federal regulations adopted to enforce the statute be consistent with the Rehabilitation Act. Indeed, the remedies for violating title II of the ADA are specifically by statute hooked into the Rehabilitation Act.
  13. In Sandoval, the Supreme Court held that §601 (title VI) prohibits only intentional discrimination. Therefore, §602 reveals no congressional intent to create a private right of action to enforce disparate impact regulations. In other words, if title VI does not allow a disparate impact claim, then the Rehabilitation Act cannot allow such a claim either because it derives its remedies and rights from title VI. Same goes for the ADA because title II of the ADA relies on the Rehabilitation Act for its remedies and rights. Such a domino effect is unavoidable because the Rehabilitation Act and the ADA both rely on the same statutory language in title VI for their causes of action, and the Supreme Court has held that it is beyond dispute that title VI prohibits only intentional discrimination.
  14. Any interpretive inquiry begins with the text and structure of the statute and ends once it has become clear that Congress did not provide a cause of action. You start by looking at the rights creating language and structure. If that does not clearly imply the cause of action, the inquiry ends even where regulations provide rights creating language.
  15. 504 only prohibits discrimination against an individual, “solely by reason of her or his disability.” The ADA is “by reason of his or her disability.”
  16. Though the ADA must be construed broadly, it cannot be construed any more broadly than the text of the statute allows.

 

VI

 

Thoughts/Takeaways

 

  1. The majority and dissenting opinion tee up nicely the arguments on both sides as to whether title II of the ADA and §504 of the Rehabilitation Act allow for disparate impact claims.
  2. The majority opinion is not correct when it says that persons with disabilities are always in the rational basis class when it comes to equal protection jurisprudence. They most certainly are not per Tennessee v. Lane. In fact, it is a case by case analysis. As far as I know, persons with disabilities are the only group of people whose actual equal protection status depends upon the individual facts of the case.
  3. You see all the time the statement that there are no significant differences in the rights and obligations under §504 and title II of the ADA. That is only sort of correct. As noted in this opinion, causation is very different. Also, the notion of program accessibility doesn’t get the same treatment between the two laws. For example, title II of the ADA allows for program accessibility. However, depending upon the type of entity you are, under §504 of the Rehabilitation Act all of your operations may need to be meaningfully accessible to persons with disabilities. See 29 U.S.C. §794(b)(1),(2).
  4. The majority opinion seem to suggest that causation under §504 and title II of the ADA are the same. As the dissent notes, that isn’t the case.
  5. Reasonable modifications and reasonable accommodations do mean the same thing. It has always been a mystery to me why “reasonable accommodation,” appears in title I and “reasonable modification,” appears in title II and title III. That there is a difference at all, is used by the majority to suggest a reason as to why title II of the ADA allows for a disparate impact claim, which I find to be a very interesting approach.
  6. The majority opinion does a nice job of explaining the difference between what situations are disparate impact claims and what situations are traditional failure to accommodate claims. For a real world example, one has to look no farther than the Georgia voting bill that was signed by the governor making it a crime for other people standing in line to give food or water to another person standing in line. Such a policy, seemingly neutral on its face, definitely has a disparate impact on persons with disabilities.
  7. The trend is absolutely clear that failure to accommodate is a separate cause of action, though I know not all courts agree with that.
  8. I have absolutely no idea how the Supreme Court is going to approach the case it has before regarding whether §504 allows for a disparate impact claim. As I mentioned previously, the Supreme Court has been very good for persons with disabilities outside of the employment context. The strongest arguments I see against the allowance of disparate impact claims is the causation language in title II of the ADA and especially the Rehabilitation Act. On the other hand, the argument that the ADA and §504 have different aims and arise in different contexts than traditional title VI claims, makes intuitive sense to me as well. I look forward to reading the oral argument in the disparate impact case when it gets to the United States Supreme Court. I am not going to make a prediction on any possible outcomes.

Today’s blog entry is something I came across by way of my subscription to the Wait A Second blog, which focuses on all things in the Second Circuit and can be found in my blogroll. The case of the day is Winegard v. Newsday LLC decided by United States District Court of the Eastern District of New York on August 16, 2021. It talks about whether a place of public accommodation can be an Internet based business. As you may recall, there are several lines of jurisprudence regarding this: never; always; gateway; if one of the businesses in 42 U.S.C. §12181(7) is involved; and never but that isn’t the question (11th Circuit). This particular case shows how the never line of cases is beginning to make a comeback. Will it last? Personally, I don’t think so providing attorneys start making use of South Dakota v. Wayfair, which we discussed here. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning; important footnotes; and thoughts/takeaways. Of course, the reader is free to concentrate on any or all of the categories.

 

I

Facts

 

Plaintiff is a deaf individual residing in Queens New York. Newsday distributes newspapers throughout New York, but it operates no physical retail operations. The newspaper is also available on Newsday’s web site along with other web-based content. Plaintiff alleged that he visited Newsday’s website to watch various videos, including programs entitled “Dumpling Craze Hits Long Island: Feed Me TV,” and “High And Mighty: Feed Me TV,” but was unable to view them because the videos lack close captioning. Defendant moved to dismiss for failure to state a valid ADA claim.

 

II

Court’s Reasoning

 

  1. At common law, the phrase “public accommodation,” referred to a subset of businesses that had heightened duties of service-often relating to lodging and transportation-because of the public nature of their physical facilities.
  2. Antidiscrimination statutes like the ADA have used the term “place of public accommodation,” for over a century. In fact, you can find the phrase in a New York statute passed in 1895.The ADA’s definition of “public accommodation,” is consistent with that history.
  3. Of the 50 examples found in 42 U.S.C. §12181(7), at least 49 of them are indisputably physical places.
  4. Congress could have said, “all businesses operating in interstate commerce,” or “retail,” or “service,” operations. However, it didn’t do that and chose to focus on physical places instead. If Congress had wanted to capture business operation rather than places, it could have said as much but didn’t. Congress could easily have also included newspapers but didn’t. All of this demonstrates Congress’s decision to apply the ADA’s antidiscrimination provision to physical places rather than to business operations generally.
  5. Countless types of businesses operating outside of brick-and-mortar premises existed in 1990, including some that had been in operation for decades. For example, the Sears Roebuck catalog dated back to 1888. If Congress had wanted to, it could easily have required catalog to be printed in braille and TV shows to include closed captioning by including such media within the scope of the phrase, “public accommodation.”
  6. While it is true that each of the categories in 42 U.S.C. §12181(7) has a residual clause, that clause must be read in light of the specific list it follows. Ejusdem generis teaches that a residual clause’s meaning should be confined to the characteristics of the specific items listed before it.
  7. Other Circuits (9th and 11th), have limited 42 U.S.C. §12181(7) to physical places.
  8. Dictionaries overwhelmingly define “place,” to mean a physical location.
  9. United States Supreme Court in a non-disability discrimination case talked about a physical place being a public accommodation. Since that decision came down after the ADA in 1990, places of public accommodation are presumptively physical locations in federal court.
  10. PGA Tour v. Martin also emphasized a physical location.
  11. No allegations exist that Newsday operates public-facing physical places where newspapers or any other goods or services are sold.
  12. Cases saying that a website is a place of public accommodation in its own right just don’t add up according to this particular judge because it would mean allowing considerations of policy to divorce from the statute’s text and purpose to override its meaning, which is not something a court should do.

 

II

 

Important Footnotes

 

In law school, they teach you to always read the footnotes. In law school anyway, I tried not to do that because it meant a lot of additional time. As a lawyer, that is a mistake and this case illustrates the point. Let’s take a look at several of the footnotes.

 

  1. In footnote 1, the court says that “travel service,” appears to refer to travel agencies and to facilities, such as American Express counters, offering traveler’s checks, currency-exchange services and the like. Those businesses routinely operated out of physical facilities when the ADA was adopted and still do to a lesser extent.
  2. In footnote 2, the court refers to the District Court decision in National Association of the Deaf v. Netflix when that court stated that since web-based services did not exist when the ADA was passed in 1990, web-based services could not have been explicitly included in the Act.
  3. In footnote 3, the court said that Congress knew well by 1990 that the Internet was coming. The Senate held hearings in 1989 to explore the potential of a national information superhighway. Even so, the ADA wasn’t written to account for that.
  4. In footnote 11, the court notes that the ADA was amended in 2008 and that Congress could have easily amended the definition to clarify the inclusion of the Internet with the 2008 amendments but it did not do so.
  5. In footnote 12, the court says the maxim noscitur a sociis says that individual items appearing in the list should be read to share common attributes.
  6. In footnote 14, plaintiff argues that Newsday has its own television and video Internet studio in addition to its publishing and advertising production facilities and offices. However, plaintiff does not allege that those facilities are open to Newsday’s customers, or that Newsday sells it newspapers or any other goods or services that those locations.
  7. In footnote 16, the court notes that plaintiff is a serial plaintiff having filed at least 44 ADA lawsuits in the Eastern District of New York alone as of August 16, 2021.
  8. In footnote 17, the court says that while many district courts within the Second Circuit have held that websites qualify as a place of public accommodation under the ADA, the reasoning goes too far. Absent some limiting principle, their reasoning means that every operator of the website-every blogger, vlogger, and the like-must provide closed captioning and any other accommodation required by the ADA. The argument that such a rule would only apply to websites offering goods and services also does not wash because the textual basis for such a limitation in the ADA is unclear.

 

III

Thoughts/Takeaways

 

  1. The two strongest arguments in favor of the never line of cases are that Congress did not add phrasing that would include the Internet in 2008, and the term “place,” presumptively refers to physical places.
  2. The counterargument is that the United States Supreme Court has recognized technological evolution in other contexts, such as free speech, which we discussed here, and taxation, which we discussed here (As we know, South Dakota v. Wayfair is very recent. So by the logic of the court in this opinion, the term place would not presumptively refer to physical locations).
  3. Very curious why South Dakota v. Wayfair was not raised in this decision. For lawyers advocating that the Internet is a place of public accommodation, failure to raise South Dakota v. Wayfair may border on malpractice (see this blog entry discussing legal malpractice). Perhaps, on appeal plaintiff will raise S.D. v. Wayfair then.
  4. DOJ in the Trump administration, as we discussed here, strongly suggested that they were going to take the approach of Internet sites having to be accessible if it was of the type of business operating in 42 U.S.C. §12181(7). I would suspect that under a Biden administration that approach would continue.
  5. There clearly is a circuit court split already (9th-Gateway v. 11th never but that isn’t the question) and more to undoubtedly come. When it goes to the Supreme Court, all bets are off with respect to the never line of cases succeeding, particularly in light of South Dakota v. Wayfair. To my mind, the Supreme Court would be more likely to go with the gateway theory or, relying on South Dakota v. Wayfair, with the of the type of business theory.
  6. That plaintiff is a serial plaintiff should not affect the analysis. However, it isn’t unusual for a court’s analysis to be affected by that fact in subtle ways, sometimes significantly so.

Before moving on to the blog entry of the week, some of you may be wondering what happened to the comments section of the blog/website. The host of my blog/website has decided to discontinue that feature for the reasons mentioned here. While very few comments were made on each of the blog entries over the years, the ones that were posted were very incisive. I will miss them. What this means any updates to the blog entries will have to occur within the blog entry itself or be a separate blog entry linking to the prior blog entry. Also, some readers of the blog utilized the comments section as a way to reach out to me privately. You can still do that by emailing me at wgoren@williamgoren.com. All of this will take some time getting used to for all of us. The host of the blog/website says that this adjustment will definitely improve the impact of the blog.

 

Today’s blog entry discusses the imposition of psychiatric exams on a federal employee as a matter of course without considering whether the exams were job-related and consistent with business necessity. The case is Litowitz v. Garland decided by the United States District Court for the District of Connecticut on August 19, 2021. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning mootness/standing (declaratory and injunctive relief); court’s reasoning monetary damages; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

Since on or about April 6, 2003, the plaintiff has been employed by the Federal Bureau of Investigation (“FBI”) as a Victim Specialist. Within the United States Department of Justice, the FBI is responsible to the Attorney General of the United States. Since 2014, the plaintiff has been assigned to the New Haven Field Office. As a Victim Specialist, the plaintiff works directly with FBI Special Agents to ensure that victims of crimes investigated by the FBI are afforded their rights and are connected to necessary support, services, and resources. The plaintiff provides written and [*2]  oral information to victims about their rights and available services, keeps victims informed about case status, provides on-scene assistance to victims, and creates and maintains an appropriate space within the FBI office for victims.

The Assessment and Therapeutic Intervention Program (“ATIP”) is a psychological fitness for duty examination composed of a questionnaire and a psychological assessment. The ATIP is administered by a third-party contractor, Modern Psych Network.

 

In 2019, the FBI required Victim Specialists to complete the ATIP questionnaire and then undergo a psychological assessment. The purpose of requiring Victim Specialists to participate in the ATIP was to uncover mental health disabilities and psychological impairments from which a Victim Specialist may be suffering, and the finding could result in alterations to conditions of employment or removal from the Victim Specialist position.

On October 19, 2018, Assistant Director of the Victim Services Division Kathryn M. Turman introduced the ATIP through a division newsletter. On November 23, 2018, Unit Chief Pamela S. Elton notified all Victim Services Division personnel that they must complete the ATIP as an annual [*3]  performance assessment review objective, beginning in Fiscal Year 2019. On March 13, 2019, Turman officially announced the initiation of the ATIP.

On March 27, 2019, the plaintiff filed a complaint with the Office of Integrity and Compliance (“OIC”) about the implementation of the ATIP.

In April 2019, the plaintiff asked OIC if she could delay participating in the ATIP while her complaint was being investigated. OIC advised the plaintiff that because the matter was still being reviewed, she should contact the Victim Services Division for guidance. Since Victim Services Division leadership had repeatedly stated that the ATIP was mandatory, the plaintiff completed phase one of the ATIP, i.e. the questionnaire, on June 8, 2019.

On June 19, 2019, during a telemedicine conference with the ATIP psychologist, the plaintiff was required to sign a waiver which stated that she was voluntarily completing the ATIP assessment and acknowledging the fact that the ATIP psychologist was not bound by doctor-patient confidentiality. The plaintiff informed the ATIP psychologist that she was not comfortable signing the waiver because the assessment was not voluntary; rather she had to complete it if she wanted [*4]  to keep her job. The session was discontinued without the plaintiff signing the waiver in order to provide time to seek clarification.

In a series of email communications with the ATIP administrators and Victim Services Division leadership, the plaintiff was told that the ATIP was mandatory. Victim Services Division leadership indicated that the plaintiff’s failure to participate in the ATIP would lead to her being removed from her role as a Victim Specialist.

Under threat of losing her employment, the plaintiff completed the ATIP psychological assessment on June 27, 2019. The psychologist performing the ATIP assessment told the plaintiff that “being a member of the LGBTQ community is a ‘red flag’ as she would have a higher rate of suicide.” (Compl., ECF No. 1, ¶ 38.) The psychologist also “indicated to the plaintiff that depending on the plaintiff’s response, how often one was intimate with self or partner and how often one received massages could likewise be a ‘red flag.'” (Compl., ¶ 39.) The psychologist “implied that the plaintiff’s answer to whether she was religious was inadequate, questioning the plaintiff if she was ‘at least spiritual’ and to explain her answer.” (Compl., ¶ [*5]  41.)

The plaintiff was informed that she would be required to complete the ATIP annually as a condition of her employment and that after the first two years, the Victim Services Division and the ATIP administrators would assess whether the plaintiff would be required to complete the ATIP annually or every other year.

On August 8, 2019, the plaintiff commenced the Equal Employment Opportunity (“EEO”) process for her claim that her rights under the Rehabilitation Act had been violated. On September 6, 2019, an EEO Counselor issued a “NORTF,” a notice of right to file a formal EEO complaint, to the plaintiff. On September 19, 2019, the plaintiff filed a discrimination complaint with the Office of Equal Employment Opportunity Affairs (“OEEOA”) alleging that she was the subject of unlawful disability discrimination because she had been required to take the ATIP, a psychological fitness for duty examination that was neither job-related nor a business necessity, as a condition of her continued employment. On December 19, 2019, the OEEOA advised the plaintiff that it had accepted for investigation the following issue: “Whether complainant was discriminated against based on disability (mental) [*6]  when: 1) On June 8, 2019, she was required to complete the Assessment and Therapeutic Intervention Program (ATIP) questionnaire[, and] 2) On June 27, 2019, she was required to complete the ATIP psychological assessment.” (Compl., ¶ 4(d).) On March 4, 2020, the OEEOA completed its investigation into the plaintiff’s complaint. On March 11, 2020, the plaintiff elected to have a final decision on her complaint made by the Department of Justice. On May 14, 2020, the Department of Justice informed the plaintiff that it had received her case and that a final decision would be rendered as soon as possible. More than 180 days have expired since the plaintiff filed her complaint with the OEEOA and the Department of Justice has not rendered a final decision on the plaintiff’s complaint. So, plaintiff filed suit.

The Department of Justice files a motion to dismiss and the District Court winds up denying the motion for the reasons below.

II

Court’s Reasoning Mootness/Standing (Declaratory and Injunctive Relief)

  1. While it is true that the FBI voluntarily ceased the administration of this particular test, that doesn’t end the inquiry. The Department of Justice has the formidable burden of showing that it is absolutely clear that the test will not be reinstated on a mandatory basis and that the FBI is committed to that course permanently. It is a burden they simply cannot meet under the facts of this case despite an affidavit from one of their employees to the contrary for several reasons: 1) the FBI rescinded its policy of requiring the test only since the filing of the case. The complaint was filed in May 2020, and the FBI stopped administering the test in July 2020. The timing tracked the development of the litigation and raises questions about whether the rescission of the policy was timed to head off an adverse determination on the merits; 2) there have been inconsistent messages from the division implementing this test making it difficult to conclude that there is no reasonable expectation that the allegedly wrongful behavior will recur in the future. While plaintiff was required to sign a waiver stating that her completion of the test was voluntary, her division leadership has previously notified all personnel that they must complete the test as an annual performance assessment review objective and repeatedly stated that the test was mandatory. In an employee newsletter, a message from the assistant director of the division stated that they had completed the first year of the testing program and were now pausing it to evaluate and determine the future of the program. During that time, the test would be suspended; 3) the division’s cessation of the mandatory psychological testing is not irreversible. Therefore, if the court were to dismiss the plaintiff’s claim as moot nothing would prevent the victims services division from reverting to its former policy. This is especially true since the affidavit and the employee newsletter emphasized the benefits of the psychological testing. The fact that the psychological testing was a significant part of the wellness and resilience strategy for the division and a key component of a strategy suggests that not only that leadership has a strong desire to continue the program but that it also sees value in the testing being mandatory. So, the case is not moot because the Department of Justice has not shown that it is absolutely clear that the psychological testing will not be reinstated on a mandatory basis in the future. For that matter, the Department of Justice has not shown that events have completely and irreversibly eradicated the effects of the alleged violation.
  2. While past injuries supplies a predicate for compensatory damages, it does not supply one for prospective equitable relief since the fact that such practices have been used in the past does not translate into a real and immediate threat of future injury. Therefore, the motion to dismiss gets granted with respect to plaintiff’s declaratory and injunctive relief claims.

III

Court’s Reasoning Monetary Damages

  1. Per 42 U.S.C. §12112(a), the ADA prohibits discrimination against a qualified individual on the basis of disability in regards to job application procedures, hiring, advancement, discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.
  2. Per 42 U.S.C. §12112(d)(1), the general prohibition against discrimination includes medical examinations and inquiries. Under that particular provision, a covered entity cannot require a medical examination and cannot make inquiries on employee as to whether such employee is an individual with a disability or ask as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity. 42 U.S.C. §12112(d)(4)(A).
  3. The implementing regulations make it unlawful for a covered entity to require medical examination of an employee or to make inquiries at the whether an employee is an individual with a disability or as to the nature or severity of such disability. 29 C.F.R. §1630.13(b). This particular section of the ADA is made applicable to the plaintiff as an employee of the FBI through Rehabilitation Act at 29 U.S.C. §§791(f), which says that the rules of title I of the ADA are what applies to a federal employee alleging disability discrimination.
  4. A plaintiff does not have to prove that he or she has a disability known to his or her employer in order to challenge a medical inquiry examination because the statutory language here does not refer to qualified individuals with disabilities. Instead, it refers merely to employees. Also, it makes little sense to require an employee to demonstrate that he has a disability to prevent his employer from inquiring as to whether or not he has a disability, an interpretation supported by EEOC enforcement guidance.
  5. The ADA and the Rehabilitation Act generously confer the right to be free from disability-based discrimination by public entities and federally funded programs and thereby confer standing for person claiming such discrimination to enforce that right.
  6. Plaintiff alleges that she has suffered emotional distress, which constitutes an injury in fact, as a result of an inquiry prohibited by the ADA and the Rehabilitation Act. That allegation is a sufficient predicate for compensatory damages and sufficient to confer standing to enforce plaintiff’s rights under 29 U.S.C. §§791, 794 to be free from disability-based discrimination.
  7. Medical examinations and inquiries are prohibited unless they are job-related and consistent with business necessity.
  8. Plaintiff did not need to allege a disability. For that matter, plaintiff does not need to allege an adverse employment action to state a claim for violation of the medical exams and disability related inquiries provision.
  9. A plaintiff asserting a claim under 42 U.S.C. §12112(d)(4)(A) must show: 1) that he is an employee of the defendant-employer; and 2) the defendant-employer required him to undergo a medical exam or made a disability related inquiry of him.
  10. A plaintiff need not prove that he or she has a disability unknown to his or her employer in order to challenge a medical inquiry or examination because the statutory language refers to employees and not to qualified individuals with disabilities.
  11. For a 42 U.S.C. §12112(d)(4)(A) claim, plaintiff is not required to allege that he or she suffered any adverse employment action.
  12. The complaint alleges that the plaintiff was required to complete the psychological testing and then undergo a psychological assessment. The complaint also alleged that those questions were discriminatory and intimidating and that she suffered emotional distress because of the discriminatory conduct. Therefore, plaintiff’s allegations are sufficient to state a claim.

IV

Thoughts/Takeaways

  1. 501, 29 U.S.C. §791, and §504, 29 U.S.C. §794, are very different from each other. §504, which applies to any entity receiving federal assistance, says that causation is, “solely by reason of.” On the other hand, §501, which applies to federal employees, gets hooked into title I of the ADA. Under title I of the ADA, causation is “on the basis of.” As we discussed in this blog entry, that distinction makes all the difference in the world.
  2. If you are going to do psychological testing, it needs to be job-related and consistent with business necessity. You would also do well to look at the questions themselves to see whether the questions themselves may be problematic (the court refers to allegations that the questions were both discriminatory and intimidating). Psychological exams have come up before in this blog, such as here. A well-known case from 2005 for discussing psychological exams and the problematic nature of the test questions can be found here.
  3. The court here sets a high burden for the Department of Justice to show that the matter is moot. In particular, the court said that it has to be absolutely clear that the offending action will not be reinstated, the FBI is committed to that course permanently, and that events have completely and irreversibly eradicated the effects of the alleged violation. Further, the court looked behind the hood so to speak to question whether the affidavit satisfied this standard.
  4. When it comes to medical exams and disability related inquiries, it doesn’t matter whether the plaintiff has a disability.
  5. No question here that emotional distress damages are allowed when it comes to prosecuting a claim under §501 of the Rehabilitation Act, 29 U.S.C. §791.
  6. For a medical exam or disability related inquiry to be required of an employee, the exam or inquiry has to be job-related and consistent with business necessity. We have talked about both of those concepts previously many times, such as here.
  7. I haven’t seen a lot of cases laying out what are the elements of a medical exam or disability related inquiry violation but this court does lay it out: 1) person is an employee of the defendant-employer; and 2) the defendant-employer required that individual to undergo a medical examination were made a disability -related inquiry of him or her.
  8. Forcing a person to sign a document that they are voluntarily submitting the testing when the test is mandated by the employer did not hold up here.
  9. For medical exam/disability related inquiries claims, an adverse action is not required.

Today’s blog entry is a discussion of two related cases. The comes from the first case comes out of the 11th Circuit. It is Behr v. Campbell, here, and it discusses the Rooker-Feldman doctrine. That decision is a published decision decided on August 12, 2021. The second decision is Lund v. Cowan, a published decision out of the Ninth Circuit decided on July 15, 2021. Lund discusses judicial immunity. As you will see, the two cases very much relate to each other.

 

Behr is an extremely significant decision for people with disabilities. As I have mentioned before, at least once a month I get phone calls from around the country involving state courts that have discriminated against a person with the disability in violation of their title II obligations. I have also written before on how going after state court systems is possible but difficult. See here for example. When you have a situation where a state court has violated their title II obligations but it gets folded into a decision that they actually make, federal courts have been reluctant to step in because of the Rooker-Feldman doctrine, which prohibits challenging a state court judgment. Making it even harder is that courts have frequently looked to how intertwined the complained of conduct was to the decision before allowing any challenges. Previously, here, we discussed in this blog entry how the Seventh Circuit was not going to buy off on Rooker-Feldman necessarily but required a deeper look when dealing which state court disability discrimination. Now, the 11th Circuit has made it quite clear that Rooker-Feldman is a narrow doctrine that will permit many challenges to the actions of state courts with respect to, in our case, actions violating a state court’s title II obligations. As usual, the blog entry is divided into categories and they are: Behr facts; Rooker-Feldman does not preclude claims; Behr thoughts/takeaways; Lund v. Cowan facts; mootness of Lund’s claims; applicability of sovereign immunity; judicial immunity bars Lund’s claim; and Lund thoughts/takeaways. Of course, the reader is free to concentrate on any or all of the categories.

 

I

Behr Facts

 

After a difficult series of child custody interventions and stay proceedings, plaintiff and two of his children filed a 30 count pro se complaint in federal district court asserting a wide variety of constitutional, statutory, and tort claims against a team named defendants. The lower court throws out the case on Rooker-Feldman grounds. In particular, plaintiffs believe that a host of defendants conspired to deprive him of custody through state child custody proceedings. They alleged violations of the fourth and 14th amendment to the U.S. Constitution.

 

II

 

11th Circuit’s Reasoning That Rooker-Feldman Does Not Preclude the Claims

 

  1. Over the years, Rooker-Feldman has become a sweeping jurisdictional doctrine.
  2. Rooker-Feldman has come to include not only claims presented or adjudicated by a state court but also claims inextricably intertwined with a state court’s judgment. The result of both of that is to effectively bar federal courts jurisdiction over all issues that seem sufficiently related to an earlier state court case.
  3. In 2005, United States Supreme Court restored Rooker-Feldman to its original boundaries when it said that a person cannot come to federal district courts complaining of injuries caused by state court judgments rendered before the district court proceeding commenced and inviting district court review and rejection of those judgments.
  4. Only when a losing state court litigant calls on a district court to modify overturn an injurious state court judgment does a claim get dismissed under Rooker-Feldman. That is, district courts do not lose subject matter jurisdiction over a claim simply because a party attempts to litigate in federal court a matter previously litigated in state court.
  5. Rooker-Feldman does bar all appeals of state court judgments regardless of whether the person appealing calls it as such.
  6. For Rooker-Feldman purposes, the critical question is whether a plaintiff’s claim directly challenges a state court loss.
  7. A claim at its heart that challenges the state court decision itself and not the statute or law underlying the decision falls within the doctrine because it complains of injuries caused by the state court judgment and invites review and rejection of those judgments.
  8. A claim is barred by Rooker-Feldman when it amounts to a direct attack on the underlying state court decision.
  9. Rooker-Feldman does not block claims that require some reconsideration of the decision of a state court if the plaintiff presents some independent claim, albeit one that denies a legal conclusion that a state court has reached in a case to which he was a party.
  10. Rooker-Feldman is not a broad means of dismissing all claims related in one way or another to state court litigation.
  11. Rooker-Feldman bars only cases brought by state court losers complaining of injuries caused by state court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments. That is, the injury must be caused by the judgment itself. Full Stop (the court actually uses the word “Period).”
  12. The concept of whether something is inextricably intertwined with a state court judgment is not a second prong of the Rooker-Feldman analysis, rather it is merely a way of ensuring that courts do not ask exercise jurisdiction over the appeal of a state court judgment simply because the claimant does not call it an appeal of the state court judgment.
  13. District courts should keep one thing in mind when Rooker-Feldman is raised. That is, it almost never applies.
  14. Under Rooker-Feldman, the question is whether resolution of each individual claim requires review and rejection of the state court judgment.
  15. In the case before the court, plaintiffs are not seeking to undo the state court’s child custody decision. Instead, they seek money damages for constitutional violations. In other words, plaintiffs are not raising due process claim to review and reject the state court’s child custody judgment. Instead, they only ask the court to consider whether their constitutional rights were violated during the proceedings and whether they are entitled to damages for those violations. Those kinds of claims fall outside Rooker-Feldman’s boundaries.
  16. Here, the claims fall outside Rooker-Feldman because they seek relief for violations that happened during the state processes and are not seeking the rejection of the state court judgment.
  17. Asking for damages for violations of a person’s constitutional rights is not the same as seeking to an appeal or undo a state court judgment.
  18. Claims seeking damages for constitutional violations of third parties and not relief from the judgment of the state court are permitted and are not barred by Rooker-Feldman.
  19. While Rooker-Feldman will bar far fewer cases from going forward, that does not mean plaintiffs have free reign to relitigate in federal court any and all issues related to their state court proceedings. Other preclusion and abstention doctrines remain alive and well and a federal court may be bound to recognize such preclusion and abstention doctrines.

 

III

 

Behr Thoughts/Takeaways

 

  1. This decision, which is precedential, will have a huge impact in favor of persons with disabilities. Unfortunately, many state courts simply do not understand their title II obligations. The result of that is litigators with disabilities are not able to effectively represent their clients and clients with disabilities do not get the fair shake they should in litigation. This decision changes all that. Where title II discrimination occurs, affected individuals can now say that they are not challenging an underlying state court decision that went against them. Rather, they can now say that disability discrimination should not have occurred during those proceedings and they should have redress for it in some respect.
  2. Georgia does a fantastic job of training judges on disability rights issues. Other states may want to take a page from Georgia, especially now in light of this decision. If you are interested in more information about how Georgia accomplishes this, feel free to reach out to me and I can give you a couple of names.
  3. As a published decision, it becomes something any court around the country can rely upon. Look for attorneys for those with disabilities to use this case quite a bit whenever a state court proceeding involves disability discrimination during the process of reaching its decision.
  4. Training, training, training for the state judiciary on what are the rights of people with disabilities (I do quite a bit of training of judges on exactly these questions), is now more important than ever.
  5. Federal judges do not have to worry about §504 or the ADA yet but time may be a changing. See here. That said, this particular piece of legislation would only apply to the employer employee relationship and not to disability discrimination by litigators, litigants, or family members of litigants during court proceedings.

 

 

Speaking of other preclusion and abstention doctrines…….

 

IV

 

Lund v. Cowan Facts

 

Bradford Lund is the great-grandson of Walt Disney and has been engaged in a long-running dispute with family members and trustees. The fortune involved is estimated to be worth $200 million. In 2019, it appeared that Lund would finally receive his rightful inheritance when he reached a proposed settlement. However, the judge rejected it suggesting with questionable factual basis that Lund has Downs Syndrome. He then appointed a guardian ad litem over Lund without holding a hearing. Frustrated at that turn of events, Lund sued Judge Cowan and the Superior Court arguing that the appointment of the Guardian without notice or hearing violated his due process rights. He also argued that the judge’s comments violated the ADA. In November 2020-after Lund filed his opening brief on appeal but before the defendants had filed an answering brief-Judge Cowan issued three orders: 1) discharging the Guardian ad litem; 2) granting Lund’s motion to reassign the case to a new judge in the probate division; and 3) issuing an order to show cause whether to disqualify Lund’s attorney for conflict of interest. Judge Cowan commented that if Lund’s attorney was disqualified for conflict of interest, then the new judge might want to consider reappointing the Guardian ad litem to help deal with the aftermath of the disqualification.

 

V

 

Mootness of Lund’s Claims

 

  1. Lund no longer faces any harm from the appointment of the Guardian ad litem because Judge Cowan lifted the order appointing her.
  2. Any future harm is speculative because Judge Cowan transferred the case to another judge (in fact, Judge Cowan no longer serves in probate court).
  3. Judge Cowan did not direct the reappointment of a guardian ad litem. Instead, he only said that if a new judge disqualified Lund’s counsel for conflict of interest, the new judge may wish to consider appointing a guardian ad litem. Any such decision to reappoint the Guardian ad litem would remain within the sole discretion of the new judge.

 

VI

 

Applicability of Sovereign Immunity

 

  1. The 11th amendment bars individuals from bringing lawsuits against a state for money damages or other retrospective relief.
  2. State officials in their official capacity are generally entitled to 11th amendment immunity.
  3. The 11th amendment does not permit retrospective declaratory relief regardless of whether that claim is characterized as prospective or not.
  4. Relief serving to compensate a party injured in the past by an action of a state official in his official capacity that was illegal under federal law is precluded even when the state official is the named defendant.
  5. Relief serving directly to bring an end to a present violation of federal law is not barred by the 11th amendment even though it has a substantial effect on the state treasury.
  6. This particular claim involved past conduct. Further, Judge Cowan has since reassigned the case to a new judge and no longer serves in the probate division. So, Judge Cowan cannot handle Lund’s probate matter again at any point in the future. Therefore, any opinion declaring the Judge Cowan acted unconstitutionally would be advisory.

 

VII

 

Judicial Immunity Bars Lund’s ADA Claim

 

  1. Judges are generally immune from suit for money damages.
  2. Judicial immunity only applies to judicial acts and not to the administrative, legislative, or executive functions that judges may on occasion be assigned by law to perform.
  3. To determine whether an act is judicial, the following factors are considered: 1) the precise act is a normal judicial function; 2) the events occurred in the judge’s chambers; 3) the controversy centered around the case then pending before the judge; and 4) the events at issue arose directly and immediately out of a confrontation with the judge in his or her official capacity.
  4. Lund does not identify any case law suggesting that judicial statements are protected only when they are embedded in an official judicial ruling rather than made during a court hearing more generally.
  5. Even when a proceeding is informal and ex parte, that does not necessarily deprive an act otherwise within a judge’s lawful jurisdiction of a judicial character.
  6. Judicial immunity ensures that challenges to judicial rulings are funneled through more efficient channels for review, such as the appellate process.
  7. Judicial immunity apparently originated in medieval times as a device for discouraging collateral attacks and thereby helping to establish appellate procedures as the standard system for correcting judicial error.
  8. Judicial immunity also serves the goal of judicial independence. That is, the proper administration of justice requires that a judicial officer, in exercising the authority vested in him or her, shall be free to act upon its own convictions without apprehension of personal consequences to himself.
  9. Subjecting judges to liability for the grievances of litigants would destroy their independence without which no judiciary can be either respectable or useful.
  10. While it is true that the commitment to judicial independence might result in unfairness to individual litigants, it is precisely in those types of unfair or controversial situations that judicial immunity may be more necessary to preserve judicial independence.
  11. Judge Cowan made the statement from the bench during an official settlement approval hearing in a probate case. The comment directly related to his effort to decide whether to approve a proposed settlement agreement that would have given Lund access to a large sum of monetary distributions. Therefore, it was not unreasonable for him to comment on Lund’s capacity to manage money since Lund’s competency was central to the litigation.
  12. Judicial immunity shields even incorrect or inappropriate statements if they were made during the performance of a judge’s official duties. In fact, a judicial act does not stop being a judicial act even if the judge acted with malice or corruption of motive.
  13. When it comes to judicial immunity, the relevant inquiry focuses on the particular act’s relation to a general function normally performed by a judge and not necessarily on the judicial act itself. To do otherwise would mean that any mistake of a judge in excess of his authority would become a nonjudicial act, which goes too far.
  14. Congressional representatives enjoy immunity for comments made on the congressional floor. For that matter, lawyers have immunity for comments made during litigation. So, no reason exists to treat differently a judge making a comment from the bench during a judicial proceeding. So, judicial immunity applies when a judge makes a statement from the bench during a court proceeding in a case before the judge.
  15. The claims against the judge’s employer also gets thrown out because of the underlying judicial immunity.
  16. Lund’s proposal to add §504 claims doesn’t work because judicial immunity bars money damages claims. Also, judicial immunity bars retrospective relief.

 

 

VIII

Lund Thoughts/Takeaways

 

  1. Behr and Lund dovetail nicely with each other because they say that even if you can get by Rooker-Feldman, you may still very well be dealing with sovereign immunity and judicial immunity (two preclusion doctrines).
  2. A critical piece in Lund was that the judge removed himself from the case and did not direct a subsequent judge to do anything. Those actions precluded prospective relief on behalf of the plaintiff.
  3. In failure to accommodate cases involving a judge, the question will be whether the failure to act on the accommodation was a normal judicial function. In an effort to enhance the prospects of judicial immunity, I have seen courts turn the accommodation process over to the judge thereby trying to make it a, “normal judicial function.” Personally, I don’t believe turning over the accommodation process to the judge makes it a normal judicial function, rather it remains an executive function. After all, all kinds of people decide on accommodations when dealing with accommodation requests under title I, title II, and even title III and almost none of those people are judges.
  4. If the disability discrimination claim against the state court involves something other than a failure to accommodate, it may be easier to activate judicial immunity. That said, activating judicial immunity isn’t going to be a slam dunk. Rather it is going to depend on the particular facts and circumstances.
  5. I am not sure I follow the sovereign immunity discussion and Lund because the Supreme Court in Tennessee v. Lane, has already upheld the ADA’s forcible waiver of sovereign immunity when it comes to persons with disabilities accessing the courts.
  6. Bottom line: If you are a litigant with a disability, a litigant’s family member with a disability, or a litigator with a disability and are facing discrimination in state court proceedings, Behr gives you a lot of possibilities to address those grievances that you did not have before, though you still have to be thinking about sovereign immunity and judicial immunity. Sovereign immunity may be the easier one to crack because under Tennessee v. Lane persons with disabilities fall into at least the intermediate level of scrutiny for purposes of the equal protection clause when it comes to the courts. If you recall, that case said that the ADA forcibly waived sovereign immunity with respect to persons with disabilities accessing the courts. Judicial immunity will be the tougher one. If it is a failure to accommodate situation, then personally I don’t think judicial immunity will be much of a problem. Outside of the accommodation process, it may be trickier but still may be possible to get around.