We now have a new Associate Justice on the United States Supreme Court, Amy Coney Barrett. For those interested in how she might rule on disability rights matters, see this blog entry1821206969198. Today’s blog entry came to me from my involvement with the Federal Bar Association civil rights section. Caryl  Oberman, a Pennsylvania attorney exclusively focusing on special education law, alerted me to this case. It isn’t a disability rights case per se. However, it applies to anyone, which of course includes persons with disabilities, in a public school. Also, it isn’t unusual for me to write unconstitutional law with respect to people with disabilities. The case of the day is B.L. v. Mahanoy Area School District1831217070199, 964 F.3d 170 (3d Cir. 2020), decided on June 30, 2020. As usual, the blog entry is divided into categories and they are: facts; First Amendment protection; punishment of student violated First Amendment; views from other courts and why a legal principle must be established; the Third Circuit approach and the policies behind it; student did not waive free speech rights; concurring and dissenting opinion; and thoughts/takeaways. Of course, the reader is free to read any or all of the categories.

 

I

Facts

 

B.L. is a student at Mahanoy Area High School (MAHS). As a rising freshman, she tried out for cheerleading and made junior varsity. The next year, she was again placed on JV. To add insult to injury, an incoming freshman made the varsity team.

B.L. was frustrated: She had not advanced in cheerleading, was unhappy with her position on a private softball team, and was anxious about upcoming exams. So one Saturday, while hanging out with a friend at a local store, she decided to vent those frustrations. She took a photo of herself and her friend with their middle fingers raised and posted it to her Snapchat story. The snap was visible to about 250 “friends,” many of whom were MAHS students and some of whom were cheerleaders, and it was accompanied by a puerile caption: “Fuck school fuck softball fuck cheer fuck everything.” To that post, B.L. added a second: “Love how me and [another student] get told we need a year of jv before we make varsity but that’s [sic] doesn’t matter to anyone else?.”

One of B.L.’s teammates took a screenshot of her first snap and sent it to one of MAHS’s two cheerleading coaches. That coach brought the screenshot to the attention of her co-coach, who, it turned out, was already in the know: “Several students, both cheerleaders and non-cheerleaders,”had approached her, “visibly upset,” to “express their concerns that [B.L.’s] [s]naps were inappropriate.”

The coaches decided B.L.’s snap violated team and school rules, which B.L. had acknowledged before joining the team, requiring cheerleaders to “have respect for [their] school, coaches, … [and] other cheerleaders”; avoid “foul language and inappropriate gestures”; and refrain from sharing “negative information regarding cheerleading, cheerleaders, or coaches … on the internet.” They also felt B.L.’s snap violated a school rule requiring student athletes to “conduct[] themselves in such a way that the image of the Mahanoy School District would not be tarnished in any manner.” So the coaches removed B.L. from the JV team. B.L. and her parents appealed that decision to the athletic director, school principal, district superintendent, and school board. But to no avail: Although school authorities agreed B.L. could try out for the team again the next year, they upheld the coaches’ decision for that year.

II

First Amendment Protection

 

  1. Supreme Court jurisprudence reveals that students First Amendment rights are subject to narrow limitations when speaking in the school context but are coextensive with those of an adult outside that context.
  2. A schoolyard’s physical boundaries are not necessarily coextensive with the school context.
  3. School officials may not reach into a child’s phone and control his or her actions to the same extent they can control that child when he or she participates in school sponsored activities. To do otherwise would twist Supreme Court jurisprudence limited accommodation of the special characteristics of the school environment into a broad rule restricting free speech of all young people who happen to be enrolled in public school.
  4. The digital revolution has made it very difficult to separate on from off-campus speech.
  5. While updating the line between on and off-campus speech may be difficult, it is still a task that must be done.
  6. A student’s online speech is not rendered on campus simply because it is about the school, mentions teachers or administrators, is shared with or accessible to students, or reaches the school environment. That principle was true before the digital age and remains true in the digital age.
  7. The student’s post on Snapchat easily falls outside the school context for several reasons. First, the relevant speech did not take place in the school sponsored forum. Second, the relevant speech did not take place in the context bearing the imprimatur of the school. Third, the place where the speech was posted was not one where the school owned or operated the online platform. Instead, the post was created on snap away from campus, over the weekend, without school resources, and shared on a social media platform unaffiliated with the school.
  8. Mere mention of the school and that it reached school officials and students is not enough for the court to hold that the speech occurred on campus.

III

Punishment of Student Violated the First Amendment

  1. The free speech rights of students are not limited to matters of public concern.
  2. Schools cannot punish students for speech in an area traditionally beyond regulation. Those concerns are equally valid where school seek to control student speech using even modest measures, much less participation in extracurricular activities, which are an important part of the educational program.

IV

Views from Other Courts and Why a Legal Principle Must Be Established

  1. Social media has continued its expansion in every corner of modern life. Even so, courts are completely without guidance when it comes to figuring out permissible lines of student speech.
  2. Courts take various approaches in trying to figure out when students speech can be regulated by the school.
  3. The approach of the Second Circuit is whether it is reasonably foreseeable that a student’s off-campus speech reaches the school environment.
  4. The Fourth Circuit takes the approach of asking the question whether off-campus speech has a sufficient nexus to the school’s pedagogical interests.
  5. Other Circuits use a case-by-case analysis.
  6. The reasonable foreseeability test doesn’t work in the digital age for the following reasons: 1) when a student speaks in the modern public square of the Internet, it is highly possible, if not a virtual certainty, that her speech will be viewed by fellow students and accessible from the school; 2) depending upon the privacy settings favored by the student’s friends or followers, her message will automatically pop up on the face of classmates phones in the form of notifications from Instagram, Facebook, Twitter, Snapchat, or any number of other social platforms; and 3) accepting that the Internet and social media have expanded the authority of the school to regulate the speech of students is not an assumption that can be accepted because it subverts the long-standing principle that heightened authority over student speech is the exception and not the rule.
  7. The nexus test doesn’t work either. The problem that test suffers from is that it erases the dividing line between speech in the school context and beyond it, a line vital to young people’s free-speech rights. The nexus test also raises the possibility of school officials asserting the power to regulate any student speech that interferes with the school’s educational mission, a power that can be easily manipulated in dangerous ways.
  8. None of the approaches taken by the other Circuits provide any clarity or predictability.

V

The Third Circuit Approach and The Policies behind It

  1. Schools do not have the authority to regulate off-campus speech.
  2. Off-campus speech is speech outside school owned, operated, or supervised channels that is not reasonably interpreted as bearing the school’s endorsement.
  3. The school’s ability to restrict the speech of students makes sense when a student stands in the school context and has a captive audience of his peers. However, it makes little sense where the student stands outside that context given that any effect on the school environment depends upon others choices and reactions.
  4. New communicative technologies open new territories where regulators might seek to suppress speech they consider inappropriate, uncouth, or provocative. Such efforts cannot be permitted regardless of their intentions without sacrificing the precious freedoms protected by the First Amendment.
  5. The consensus in the analog era was that controversial off-campus speech was not subject to school regulation, and that is an important principle to adhere to even as speech moves online.
  6. Holding off-campus speech off limits to school regulation has the advantage of offering upfront clarity to students and to school officials. Such a principal allows both students and school official to determine when they are subject to the authority of the school and when they are not.
  7. A test based upon the likelihood that speech reaches the school environment fails to provide that clarity. The same goes for whether a sufficient nexus exists.
  8. The scope of a test on whether speech occurs in the context owned, controlled, or sponsored by the school is much more easily applied and understood.
  9. The school still has the authority under this decision to deal with any student who shares or reacts to controversial off-campus speech in a disruptive manner.
  10. This case did not involve off-campus speech threatening violence or harassing particular students or teachers. Such a case raises different concerns and may well come out differently under the First Amendment.
  11. Both the U.S. Constitution and American history say that it is important that vulgar, uncouth, or, offensive speech be beyond the powers of schools to regulate because openness is the very basis of our national strength and of the independence and vigor of Americans growing up in a relatively permissive and highly contentious society.
  12. Careful lines of the authority of schools to regulate student speech is no less vital in today’s digital age in order to ensure adequate breathing room for valuable and robust speech.

VI

The Student Did Not Waive Her Free-Speech Rights

  1. The school had a rule stating: “please have respect for your school, coaches, teachers, other cheerleaders and teams. Remember, you are representing your school when at games, fundraisers, and other events. Good sportsmanship will be enforced; this includes foul language and inappropriate gestures.”
  2. The plain language of the rule suggests that it applies only at games, fundraisers, and other events.
  3. The rule would not cover speech or a post the snapshot unconnected with any game or school event and before the cheerleading season even began.
  4. A student would not believe she was waiving all rights to insult the school once safely off-campus and in the world at large. In fact, the rule doesn’t say anything about not being able to use foul language or inappropriate gestures away from school.
  5. The school had another rule saying that participation on an athletic team or cheerleading squad meant that the participants could not tarnish the school in any manner and that they would be subject to discipline if they did so. However, that rule fails for two reasons. First, it applies only during the sports season, but the student in this case posted her post after the previous season had ended and before practices for the next season began. Second, the language of the rule does not give clear markers applying where a student behavior would tarnish the school’s image in any manner. Such language is too dependent on the whims of school officials to give rise to a knowing and voluntary waiver of the student’s rights.
  6. The primary responsibility for teaching civility rest with parents and other members of the community.
  7. As arms of the state, public schools have an interest in teaching civility by example through persuasion and encouragement, but they cannot leverage the coercive power to do so. Otherwise, school administrators would be given the power to quash student expression deemed crude or offensive, which far too easily become the power to censor valuable speech and legitimate criticism.
  8. Enforcing the Constitution’s limits on upholding free-speech rights creates a deeper and more enduring version of respect for civility and the hazardous freedoms that is our national treasure and the basis of American national strength.

VII

Concurring and Dissenting Opinion (Judge Ambro)

  1. Judge Ambro agrees that the student prevails but, he disagrees with the majority holding that schools do not have the authority to regulate student speech done off-campus where such speech substantially disrupts the work and discipline of the school.
  2. This case is the first Circuit to hold that Supreme Court jurisprudence does not apply to off-campus speech. No other Circuit has come up with such a categorical assertion.
  3. The majority decision leave too many questions unanswered, such as: 1) how does the holding apply to off-campus racially charged student speech?; 2) can a school discipline a student who post off-campus Snapchat’s reenacting and mocking the victims of police violence where those Snapchat’s are not related to school, not taken a posted on campus, do not overtly threatened violence, do not target any specific individual but yet provoke significant disruptions within the school?

VIII

Thoughts/Takeaways

  1. This case is likely to go to the United States Supreme Court considering how the Circuits are all over the place. As mentioned at the very top of this blog entry, we now have a new Associate Justice on the Supreme Court. I have absolutely no idea how the United States Supreme Court with its new configuration will deal with this issue. This case doesn’t necessarily break down into convenient ideological lines.
  2. Even with this decision, a public school’s reach may still extend to off-campus speech where the speech involves: 1) a school sponsored form; 2) use of the school brand; or 3) school owned or operated online platform.
  3. I can see how the Third Circuit could say that the reasonable foreseeability test and the nexus test are not workable approaches. For example, in the world of Internet accessibility litigation, cases are all over the place as to what constitutes a sufficient nexus.
  4. Off-campus speech per this decision is speech done outside school owned, operated, or supervised channels that is not reasonably interpreted at bearing the school’s endorsement.
  5. The decision is very policy driven, which is not something you see all the time and certainly not to this extent.
  6. Unclear as to what “reacting in a disruptive manner,” means.
  7. Regardless of where the speech occurs, threatening violence and engaging in harassment are still off-limits.
  8. Broad restrictions on speech going to the image of the public school are going to be difficult to enforce.

It will be interesting to follow how this case shakes out at the United States Supreme Court.

Before getting started with the blog entry of the day, I want to congratulate the Tampa Bay Rays and the Los Angeles Dodgers for getting to the World Series. Tampa Bay won in seven games. The Dodgers came back and beat the Braves after trailing 3-1. Good luck to both. Sports are an escape in the very strange world that we are in now. We can all use a pick me up. With that in mind, a colleague of mine, Professor Len Sandler from the University of Iowa Law School, sent me this link18018312069200. It really was a great pick me up when I listened to it. I hope it does the same for y’all.

 

Sometimes the people who enforce discrimination laws get themselves into trouble as well. The case of the day, Menoken v. Dhillon18118412170201, decided by the District of Columbia Circuit on September 15, 2020, is one such example. In this case, the EEOC gets sued for violating title VII and the Rehabilitation Act by the creation of a hostile work environment. As usual the blog entry is divided into categories, but not the usual ones, and they are: hostile work environment, interference, unlawful medical inquiry, breach of confidentiality, and thoughts/takeaways. This blog entry is pretty short, and so the reader is probably going to want to read the whole thing.

 

I

Hostile Work Environment

 

  1. Plaintiff, an attorney, proceeded pro se at the trial level, but the appellate court appointed counsel as amicus curiae to present arguments in support of her at the appellate level.
  2. Incidents taking place while the plaintiff was on leave can support a retaliatory hostile work environment claim.
  3. Court can consider any negative actions an employer takes during an employee’s absence when assessing whether a plaintiff has plausibly alleged a hostile work environment.
  4. An employer’s deliberate attempt to affect an employee’s finances and access to healthcare is precisely the type of conduct that might dissuade a reasonable worker from making or supporting a charge of discrimination.
  5. The interactive process is viewed as a whole and not just based upon one particular point in the process.
  6. The agency did not engage in good faith efforts to determine what accommodation might be appropriate. Instead, plaintiff alleged that the EEOC deliberately delayed processing the request and then sought leverage to extract legal concessions designed to benefit the EEOC. That is, they offered to grant her reasonable accommodations on the condition she execute a general release absolving EEOC of liability with respect any claims arising from her employment.

 

II

Interference

 

  1. A retaliation claim and an interference claim are two different causes of action.
  2. The court mentioned two possibilities for analyzing interference claims: 1) Frakes, which we discussed here18218512271202; and 2) a test proposed by the EEOC.
  3. The proposed EEOC test would require the plaintiff to allege that the employer: 1) coerced, intimidated, threatened, or interfered with any individual; 2) in the exercise or enjoyment of, or on account of his or her having exercise or enjoyed, or on account of his or her having aided or encouraged any other individual in the exercise or enjoyment of; 3) any right granted or protected by the ADA/RA.
  4. Regardless of the standard, plaintiff survives the motion to dismiss. In this case, the amended complaint describes a 10 year pattern of hostile treatment rooted in the EEOC’s antagonism toward the plaintiff’s protected activities under title VII. Her complaint alleges that as a result of that hostile behavior she suffered significant physical and mental injuries, including depression, acute stress, severe hypertension, and complex posttraumatic stress disorder.
  5. Plaintiff has stated a plausible claim of interference with her allegations of the EEOC’s efforts to delay processing her reasonable accommodation requests and their efforts to persuade her to accept the settlement offer as a condition of granting her requested accommodations.
  6. Plaintiff’s interference claim survived because she described in her complaint: 1) the nature of her disability; 2) the EEOC’s persistent and intentional effort to undermine her exercise of statutorily protected rights; and 3) the EEOC’s apparent failure to engage with plaintiff in good faith to identify a reasonable accommodation (this is a nice roadmap for an ADA interference complaint).

 

III

Unlawful Medical Inquiry

 

  1. To state a claim for an unlawful medical inquiry, plaintiff must allege that the employer in fact conducted an impermissible inquiry into the plaintiff’s medical condition. That claim fails because the plaintiff did not allege that the EEOC attempted to access her files in any way that constituted an unlawful inquiry. That is, no allegations were made of an impermissible disability related inquiry.

 

IV

Breach of Confidentiality

 

  1. The confidentiality requirements attach to an employee’s medical information that is obtained in the course of a permissible medical inquiry.
  2. No allegations exist that the EEOC obtained her medical records in the course of an inquiry into her medical condition.
  3. Since the files were obtained by the Office of Worker’s Compensation Programs in connection with her occupational injury claim, the statutory obligation to treat those files as a confidential medical record rested with that agency and not the EEOC.

 

V

Thoughts/Takeaways

 

  1. Hostile work environment claims apply to the Rehabilitation Act.
  2. Interference and retaliation claims are two different animals.
  3. Frakes18318612372203 remains a plausible way to analyze interference claims. The EEOC test might be another possibility. It will be interesting to follow what test for interference claims the courts wind up adopting.
  4. Incidents taking place while on leave can support a hostile work environment claim.
  5. The interactive process is looked at a whole and not as separate discrete parts.
  6. Bad idea to insist on a waiver of liability in exchange for reasonable accommodations.
  7. An unlawful medical inquiry claim must be based upon an impermissible inquiry into the plaintiff’s medical condition.
  8. A breach of confidentiality claim only attach it to records obtained in the course of a permissible medical inquiry, and the confidentiality obligation goes to the agency making that permissible medical inquiry and not to another agency not involved with that inquiry.
  9. A person going pro se at the trial level can get a big boost when the appellate court either allows for an amicus curiae or an in forma pauperis attorney to get involved with the filing of the brief.
  10. Be sure to get the interactive process right as we discussed here18418712473204.

 

Have a real fine day y’all.

Before getting started on the blog entry of the day, I put my absentee ballot in a drop box yesterday. Whoever you are voting for, please do vote. Also, my Braves beat the Dodgers yesterday in game one of the National League championship series. Can they win another three? I see the Tampa Bay Rays are up two on the Houston Astros. If Tampa Bay somehow wins the World Series, Tampa Bay will have teams that have won two professional championships in the same calendar year as the Tampa Bay Lightning has won the NHL Stanley Cup already.

 

Turning to the blog entry of the day, we look at a Seventh Circuit decision holding that the ministerial exception does not apply to hostile work environment claims. The case is Demkovich v. St. Andrew the Apostle Parish172119119119119 decided by the Seventh Circuit on August 31 of 2020. As usual, the blog entry is divided into categories and they are: facts; majority opinion; dissenting opinion; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

Plaintiff Sandor Demkovich was hired in 2012 as the music director at St. Andrew the Apostle Parish, a Catholic church in Calumet City, Illinois. He was fired in 2014. Demkovich is gay. When he was hired, he had been with his partner (now husband) for over a decade. He also was overweight and suffered from diabetes and metabolic syndrome, and he had these conditions before St. Andrew hired him.

Demkovich’s supervisor was Reverend Jacek Dada. According to Demkovich, Reverend Dada subjected him to a hostile work environment based on his sexual orientation and his disabilities.120120120120173[1]14 Demkovich alleges that Reverend Dada repeatedly and often subjected him to comments and epithets showing hostility to his sexual orientation, and increased the frequency and hostility after learning that Demkovich intended to marry his partner and again as the date of the ceremony approached. After the ceremony, Reverend Dada demanded Demkovich’s resignation because his marriage violated Church teachings. Demkovich refused, and Reverend Dada then fired him.

Demkovich also alleges that Reverend Dada repeatedly harassed and humiliated him based on his weight and medical issues. According to Demkovich, his job did not call for any particular physical-fitness requirements, and Reverend Dada never connected his disparaging and humiliating comments to Demkovich’s job performance. Demkovich alleges that Reverend Dada’s harassment on both grounds “humiliated and belittled” him, causing serious harm to his physical and mental health.

Defendants persuaded the district court to certify under 28 U.S.C. § 1292(b) a broad legal question, not limited to the factual details of the particular case.  The district court certified the following question:

Under Title VII and the Americans with Disabilities Act, does the ministerial exception ban all claims of a hostile work environment brought by a plaintiff who qualifies as a minister, even if the claim does not challenge a tangible employment action?

II

Majority Opinion (Judge Hamilton), Holding That the Ministerial Exception Does Not Apply to Hostile Work Environment Claims

 

  1. The ministerial exception is an application of the First Amendment and not statutory interpretation.
  2. Plaintiff only challenges his work environment and not his termination.
  3. Churches are not exempt from federal employment discrimination laws as applied to their non-ministerial employees.
  4. All parties agree that plaintiff was a ministerial employee.
  5. The certified question assumes a hostile work environment.
  6. Religious organizations are not totally exempt from all legal claims by ministerial employees. For example, ministerial employees may be able to sue their employers and supervisors for breaches of contract and torts.
  7. The Ninth Circuit has drawn a line between tangible employment actions and hostile environment claims.
  8. The ministerial exception rationale simply doesn’t apply where harassment continues unrectified because it is impossible to claim that such harassment is a method of choosing clergy.
  9. Hiring, firing, promoting, retiring, transferring are all decisions that employers, including church related organizations, make to select those who carry out their work. Further employer control is available through a host of other tangible employment actions, such as decisions about compensation and benefits, working condition, resources available to do the job, training, support from other staff and volunteers, etc.
  10. Hostile environment claims involve different elements and specific rules for employer liability. Those differences show that a religious employer does not need an exemption from hostile work environment claims in order to be able to select and control its ministers.
  11. Hostile work environment claims are essentially tortious in nature. Such claims use different standards for holding an employer liable, and they do so precisely because of the behavior creating a hostile work environment is not essential for management supervision and control of employees.
  12. Hostile work environment claims have to meet a demanding standard.
  13. A hostile work environment is not a permissible means of exerting constitutionally protected control over employees to accomplish the mission of the business or the religious organization.
  14. Hosanna-Tabor175122122121121 made clear that its holding does not cover actions by employees alleging tortious conduct by the religious employers, and plaintiff is alleging classic tortious harassment.
  15. An employer’s need and right to control employees does not embrace harassing behavior that the Supreme Court has defined in numerous cases in terms of what unreasonably interferes with an employee’s work performance.
  16. The notion that such harassment is necessary to control or supervise an employee is an oxymoron. After all, one can presume that an employer is interested in maximizing the employee’s ability to perform his or her stated duties to further the organization’s objectives and not in favor of permitting an environment that actively inhibits job performance that is beyond the scope of that supervisor’s own employment.
  17. That the conduct may have been motivated by Catholic doctrine isn’t enough because the Catholic Church does not embrace such conduct as its own employment policy.
  18. Hosanna-Tabor’s decision not to extend constitutional protection to tortious conduct in combination with the Supreme Court’s understanding of hostile work environment as a tortious cause of action points toward allowing hostile work environment claim by ministerial employees so long as they do not challenge tangible employment actions.
  19. The ministerial exception protects the rights of religious employers and not supervisors within those organizations. Therefore, holding that tangible employment action directly attributable to employers are off limits makes sense. However, it equally makes sense that hostile environment claims should not come within the ministerial exception for the same reason.
  20. Supervisors within religious organizations have no constitutionally protected rights under the ministerial exception to abuse those employees they manage, whether or not they are motivated by their personal religious beliefs.
  21. The ministerial exception is not unlimited. Civil courts may hear and decide a range of other cases involving ministers and religious employers without violating the First Amendment.
  22. Successful hostile work environment claims frequently involve highly disturbing facts.
  23. An oral argument, defendants acknowledged that a religious employer could be civilly liable for a supervisor’s criminal or tortious conduct towards a ministerial employee.
  24. Accordingly, it is hard to fathom why a statutory case based on the same conduct would necessarily violate the First Amendment regardless of whether the supervisor claims a religious motive.
  25. The First Amendment would not give supervisors and coworkers of ministerial employees the right to leave nooses at the desk of a black minister while repeatedly subjecting him to verbal abuse with racial epithets and symbols. It also would not permit supervisors and coworkers to subject the teacher to pervasive and unwelcome sexual attention or to intimidating harassment based on national origin. Those kinds of harassment are not constitutionally necessary to control ministerial employees. Accordingly, an overarching ministerial exception goes too far.
  26. Religious employers have long been subject to employment discrimination suit by their non-ministerial employees.
  27. The Catholic Church has faced extensive litigation over torts committed by clergy in recent years and such litigation is not foreclosed by constitutional concerns.
  28. When it comes to cases involving churches, courts may get involved if they avoid issues of faith and stick to applying neutral, secular principles of law.
  29. Plaintiff is not asking the court to pass on religious doctrine or practices. After all, civil courts have nothing to say about whether the church should permit same-sex marriage or structure their organization in a certain way. The church is free to decide whether to retain the plaintiff or fire him. However, a hostile work environment claim is looked at under neutral generally applicable standards.
  30. As in cases applying secular legal rule to torts, contracts, or property disputes, courts may apply secular hostile environment jurisprudence to actions taken toward employees.
  31. An individual’s religious belief does not excuse him from compliance with otherwise valid law prohibiting conduct that the State is free to regulate.
  32. “Taking these lines of analysis together, we base our decision on three points. First, the Free Exercise Clause does not bar all hostile environment claims by ministerial employees. Second, the risk of procedural entanglement in such cases is modest because religious organizations have no generalized claim to immunity from litigation or regulation. Third, in hostile environment cases brought by ministerial employees, there is some risk of substantive entanglement, but that risk does not appear so severe that all such claims must be dismissed. We believe that risk can be managed by avoiding substantive decisions on issues of religious doctrine or belief and by balancing First Amendment rights with the employee’s rights and the government’s interest in regulating employment discrimination. We trust that district courts will manage these issues in their sound discretion. It is, of course, conceivable that certain cases may unavoidably present factual questions that would entangle courts excessively in substantive religious decision-making. District judges can narrow or dismiss such cases if they arise. But the possibility of some outlier cases does not persuade us that the First Amendment requires courts to bar an entire category of claims authorized by federal statute.”

 

III
Dissenting Opinion by Judge Flaum

 

  1. Plaintiff’s complaint alleged both a hostile work environment claim as well as claims based upon tangible employment actions.
  2. The 10th Circuit has held that the ministerial exception bars hostile work environment claims.
  3. A church must not be constrained in its dealings with ministers by employment laws that interfere with the church’s internal management, including antidiscrimination laws.
  4. The ministerial exception precludes any inquiry whatsoever into the reasons behind a church’s ministerial employment decision.
  5. The majority opinion will result in the encroachment by the State into an area of religious freedom that States cannot go into under the free exercise clause.
  6. Control of a minister necessarily includes telling a minister that his behavior does not conform with church doctrine and by instructing him to change his behavior.
  7. It is not for the court to regulate how a church communicates with its minister to further its religious objectives.
  8. Churches will now have the incentive to employ ministers that lessen their exposure to liability rather than hire those that best further there religious objectives.
  9. Deciding a hostile work environment claim with respect to a church necessarily means looking at the plaintiff’s terms and conditions of employment in matters involving the church’s governance and administration, including its employment relationship with the plaintiff, its control over the plaintiff, and the plaintiff’s workplace conditions.
  10. Remedies for outrageous acts do exist but they are not contained within federal employment law.

 

IV

 

Thoughts/Takeaways

 

  1. I certainly see this getting appealed to the United States Supreme Court. It is a topic of great interest to the Justices. Also, a Circuit Court split exists. If Justice Ginsburg was still on the court, I would say the swing vote would be Justice Roberts or possibly Justice Kavanaugh. It is impossible to predict what a person does once they are on the Supreme Court. That said, if Justice Barrett is confirmed the church may very well prevail easily. We already know from Justice Gorsuch’s writings and opinions that he would be very likely to find in favor of the church. Whether a Supreme Court decision deciding in favor of the church is good or bad, depends upon your own particular viewpoint.
  2. Judge Barrett was not on the panel hearing this case. Since it is likely that this case will come before the Supreme Court, she would be very unlikely to answer any questions about the scope of the ministerial exception at the confirmation hearings, which are taking place now.
  3. How high the bar is for deciding hostile work environment claims is being debated hotly. For example, Minnesota has said things have to change, as we discussed here176123123122122.
  4. This decision and jurisdictions following the Seventh Circuit will force plaintiffs to craft their complaint in such a way so as to make clear that hostile work environment claims are being alleged and not tangible employment actions. Plaintiffs will also want to make sure they allege as many facts as possible going to the severe and pervasive nature of the conduct. Finally, plaintiffs will also want to utilize the Minnesota case to give them more of a chance for succeeding in hostile work environment claims.
  5. There is lots of publicity about how the next Supreme Court justice may affect the affordable care act and abortion. This case might be another one where the next Justice may profoundly affect the outcome of the case.
  6. Interesting approach by the defense in this case to argue that church doctrine permitted a hostile work environment.
  7. If you are in a protected class, it is hard to recommend employment by a religious entity after Lady of Guadalupe177124124123123. A decision allowing religious organization to be immune from hostile work environment claims for their ministers would only strengthen that recommendation. It may be a pyrrhic victory because religious organizations may find it hard to hire people from protected classes, especially if the Supreme Court reverses Demkovich.

For those with teams continuing in the baseball playoffs, good luck this week. Both of my Chicago teams are out. However, my Braves are still in it. Today’s blog entry will discuss the legislation just filed in Congress this week by Representative Budd, a Republican from North Carolina, and by Representative Correa, a Democrat from California, entitled the Online Accessibility Act, here169119119119. Richard Hunt, a colleague of mine and frequent co-presenter, has an excellent blog entry on it where he goes into quite a bit of detail on it, here170120120120. He and I don’t always come out the same place. In this instance, we are pretty close, though there are some subtle differences worth discussing. So, I thought it would be a good idea to blog on this as well. As usual, the blog entry is divided into categories and they are: the Online Accessibility Act; my thoughts; and what Richard says/concluding thoughts. Of course, the reader is free to read any or all of the categories.

 

I

Online Accessibility Act

 

  1. Creates a separate title VI of the ADA.
  2. Applies to consumer facing websites and mobile applications owned or operated by a private entity.
  3. Prohibits discrimination by reason of a disability by any private owner or operator of a consumer facing website or mobile application with respect to excluding the person with the disability from participation or denying them the full and equal benefits of the services of a consumer facing website or mobile application. It also prohibits discrimination by any private owner or operator of the consumer facing website or mobile application.
  4. Compliance mean substantial compliance with the Web Content Accessibility Guidelines 2.0 and any subsequent revisions at their level A and AA levels.
  5. If a private entity owning or operating a consumer facing website or mobile application is not in substantial compliance, they have to provide an alternative means of access for individuals with disabilities that is equivalent to access the content available on that website or mobile application.
  6. The Architectural and Transportation Barriers Compliance Board is given the responsibility for issuing and publishing standards defining what is substantial compliance, alternative means of access, and consumer facing website or mobile applications. They also have the responsibility for issuing regulations concerning what is substantial compliance.
  7. After 180 days from enactment of the act, the Access Board must promulgate a notice of proposed rulemaking. They also have to periodically review and where appropriate amend the standards to reflect technological advances or changes in electronic and information technology. The final regulations must include flexibility for small business concerns.
  8. Requires exhaustion of administrative remedies with the Department of Justice before a claim by an individual can be filed.
  9. The Department of Justice has 365 days from when the comment period ends on the Access Board regulations to develop procedures for receiving and investigating complaints.
  10. Prior to filing a complaint with DOJ, an individual must first notify the private owner operator of a consumer facing website or mobile application that the website or mobile application is not in compliance with the standard for compliance.
  11. Once the private owner or operator of a consumer facing website or mobile application receives the complaint, they have 90 days to bring that website or application into compliance. If they don’t, the individual can then file a complaint with DOJ.
  12. If the individual does file a complaint with DOJ, a copy of that complaint must be provided to the owner or operator of a consumer facing website or mobile application.
  13. An individual has 90 days from the end of the 90 day notification period to the owner or operator of the website or mobile application to file a claim with DOJ.
  14. Once a complaint is filed with DOJ, DOJ has 180 days to determine whether a violation exists.
  15. A final determination by DOJ is either DOJ determining a lack of noncompliance or the 180 day period expires without DOJ having made a final determination.
  16. DOJ can certify that a state law or local ordinance establishing accessibility requirements meets or exceeds the minimum requirements of the Online Accessibility Act. If a State or local government has such certification, that is rebuttable evidence that the state or local ordinance meets or exceeds the minimum requirements of the Online Accessibility Act.
  17. DOJ has authority to bring its own civil actions if either a pattern or practice exist or if a person or group or person has been discriminated against and that discrimination raises an issue of general public importance.
  18. If DOJ brings the action, equitable relief, monetary damages to the persons harmed by the website or mobile application, and civil penalties are all in order. With respect to civil penalties, civil penalties are not to exceed $20,000 for the first violation and not to exceed $50,000 for any subsequent violation.
  19. Punitive damages are out.
  20. A determination in a single action by judgment or settlement that a consumer facing website or mobile application has engaged in more than one discriminatory act gets counted as a single violation for purposes of civil penalties.
  21. In considering the civil penalties, a court has to give consideration to any good faith efforts or attempts by the consumer facing website or mobile application to comply with the Online Accessibility Act.
  22. A private individual cannot bring a civil action against the website or mobile application if the Attorney General has instituted an enforcement action already.
  23. Any complaint alleging violations of the Online Accessibility Act must plead with particularity each element of the claim, including the specific barriers to access of the consumer facing website or mobile application.
  24. Consumer facing website means any website purposely made accessible to the public for commercial purposes.
  25. Mobile application means a consumer facing software application that can be executed on a mobile platform or a web-based software application tailored to a mobile platform but is executed on a server.
  26. Small business means anything described in 15 U.S.C. 632(a).

 

II

My Thoughts

 

  1. They have to fix the punctuation in §601(a) with respect to causation. Right now, “by reason of disability” is contained within commas. So, that leads one to wonder if causation is truly “by reason of a disability,” or if that is just one idea for causation. I am sure they meant causation to be “by reason of a disability,” and so they need to take the first comma out.
  2. 601’s title says that it pertains to requirement for consumer facing websites and mobile application owned or operated by a private entity. However, §601(a) says that it applies to discrimination, “by any private owner or operator of a consumer facing website or mobile application.” If Congress wants to match up this section with its heading they should take out the phrase “private owner or operator,” and replace it with “private owner or private operator.”
  3. Level AA and level A of WCAG are very different levels of compliance. Perhaps, the regulations will make clear which level is substantial compliance. As a matter of preventive law, you are better off with level AA. The reason level A may have been put in there is to allow for level A compliance for certain small businesses, which was the Obama administration approach in its proposed regulations.
  4. There is an assumption being made here that compliance with WCAG level AA or level A always equals meaningful access. That isn’t necessarily the case.
  5. Essentially what the Act does is set up an EEOC system for online accessibility complaints. That is, you have to file a complaint first and get a final resolution before you are able to proceed to court.
  6. I don’t see anything in this bill detailing the specificity of the notice an individual must make to the private owner operator of the consumer facing website or mobile application that is alleged to be in noncompliance.
  7. Once the 90 days period after the owner operator of the website or mobile application has received the notice has expired, the individual then has 90 days from that to file a complaint with DOJ.
  8. I don’t see anything in this bill requiring the DOJ to issue a right to sue letter. Instead, it seems if 180 days has expired without the DOJ making a final determination then the individual has a right to sue and a letter isn’t necessary. I wonder if regulations will address this point.
  9. I don’t understand where DOJ is going to get the technical expertise to certify that a state law or local ordinance meets or exceeds the requirements of the Online Accessibility Act when it is based upon WCAG 2.0 et. ff. level AA or level A. That stuff is really complicated and far beyond the expertise of most lawyers. Also, where is DOJ going to get the resources to investigate noncompliance. I think it is more likely that DOJ would just let the 90 day period go by. If there is a new presidential administration, we will know more in a month, perhaps we will see more resources devoted to DOJ for doing this. We also may see a completely different kind of regulations from both the Access Board and the DOJ depending upon the election results.
  10. The bill has a separate section for remedies for action brought by DOJ. However, I don’t see anything about the remedies for an action brought by a private individual once administrative remedies have been exhausted. That is something that has to be fixed. Presumably, the remedies might match up with title III of the ADA but this bill doesn’t say. Congress definitely needs to fix this so that the remedies for a private individual after exhaustion are specified.
  11. 603(a) of the act states, “in any action filed under this title (emphasis mine), the complaint shall plead with particularity each element of the plaintiff’s claim, including the specific barriers to access a consumer facing website or mobile application.” The use of the term “title,” means this requirement applies to both DOJ and to individual bringing a private cause of action. Questions remain as to what “pleading with particularity,” and “including the specific barriers…,” mean. It would seem strange that DOJ by regulation could specify all of that. It would seem that courts are going to have to figure out what “particularity,” and “specific barriers,” mean.
  12. Does the Access Board have the resources and expertise to develop these regulations?
  13. Nothing in the Act answers the question of whether religious entities are exempt from this title or not. They are from title III.

III

 

What Richard Says/Concluding Thoughts

 

  1. Richard lays out the following problems with the current scheme:

 

  • There is no recognized legal standard for website accessibility. A website that satisfies one court may not satisfy another, and a business that settles a lawsuit today may be sued tomorrow over the same website.

Agreed.

  • There is no recognized technical standard for website accessibility. It is often claimed that WCAG 2.0 AA is sufficient, but there is no statutory or regulatory authority for its application to business websites, so technical compliance will not guarantee freedom from lawsuits.

Agreed.

  • Even if WCAG 2.x AA were the technical standard it would not a suitable legal standard because conformance over an extended period of time is impossible and the standard itself does not recognize any level of conformance other than perfect conformance.(11) Modern websites are constantly in flux, and since those who develop them are human and therefore likely to make mistakes, a website that is in conformance one day may not be the next. A standard that requires constant perfection can never be met and therefore guarantees future litigation no matter how diligent any business might be.

Agreed

  • Although websites are by their nature available in all fifty states and U.S. territories there is no single law governing accessibility. A website operated from Topeka, Kansas is subject not only to the ADA and the laws of Kansas, but also to the laws of New York, New York City, California, and a host of other varying state and municipal standards. A website that passes muster in Florida may be unacceptable in Ohio or Puerto Rico.

Agreed.

  1. I agree with Richard that “substantial compliance,” is problematic because of its dual meanings. As Richard points out, it can either apply to nonconforming elements or it could apply to nonconforming elements interfering with meaningful access to the benefits or services of the website. I also agree with Richard that meaningful access, the standard in title II of the ADA, should be the overriding standard for legal compliance. As Richard points out, the advantage to using a meaningful access standard is that there may be elements of the website that are inaccessible but do not prevent meaningful access for the person with the disability.
  2. Richard points out that the bill lacks a grace period and that there was a grace period for physical access. He believes there should be a grace period for online accessibility. The problem is just how long would that grace period be?
  3. Richard also suggests that this title of the ADA should preempt state laws. I see where he is going with that. The Act tries to get around that by saying that DOJ can certify substantial compliance. That is kind of a similar thing as to how the EEOC certifies a state agency as being equivalent with respect to investigating civil-rights employment claims. The problem I have is how will DOJ have the expertise and the resources to certify that state requirements for online accessibility meet the standards laid out in the Act. I am generally not a fan of preemption, but there is something to be said for Richard’s point on this in light of the very nature of the online medium.
  4. I agree that meaningful access needs to be the overriding legal standard. It has worked well in title II and in title III non-architectural barrier matters. Also, this bill is a long way from becoming law. Right now, between the President having Covid-19 and the upcoming Barrett nomination, it is hard to see how anything will get through the Senate. It is entirely possible that in a month from now we will see a significant change in the makeup of the president and the Congress come January, but we don’t know. If there is a significant change come January, anything can happen.
  5. The causation paragraph definitely needs to be changed and the remedies available to a private individual bringing a claim after DOJ exhaustion need to be specified.

Go Atlanta Braves.

Before getting started on the blog entry of the day, I wanted to wish everyone with teams in the baseball playoffs good luck. I actually have three teams in the baseball playoffs: brave; cubs; and White Sox. No, I am not watching nine hours of baseball today, but I am recording all three of my teams. On the football side, my Bears are 3-0 while the Falcons are 0-3. The Falcons recently became the only team in NFL history to blow big leads in two consecutive games. Good luck to your baseball teams and to your football teams. Hope all of the players as well as all of my readers can stay healthy and safe.

 

Turning to the blog entry of the day, with the nomination of Judge Amy Coney Barrett to the Supreme Court I wanted to take a look at her cases dealing with persons with disabilities, and I also wanted to see if I could figure out her judicial philosophy. I have done similar blog entries for both Justice Gorsuch16868193119119119119119119 and for Justice Kavanaugh16969194120120120120120120. This process proved to be a little bit different than the other two. In particular, I couldn’t figure out much about her way of approaching cases from reading the opinions on disability rights. However, my research took me to a Law Review article that she wrote in 2010 entitled “Substantive Canons and Faithful Agency,” which appeared in the Boston University Law Review in 2010, and that article gave me some indication about how she goes about looking at cases. So, the blog entry is essentially divided into three categories and they are: disability (ADA or Rehabilitation Act cases that she has been involved with); her judicial philosophy; and thoughts takeaways. The reader is free to focus on any or all of the categories. With respect to disability rights cases that she has been involved with, the only cases I could find were cases involving the ADA or the Rehabilitation Act and a couple of excessive force cases or deliberate indifference to medical needs of prisoners. I did not find anything involving the Fair Housing Act or the Air Carrier Access Act for example. My search for cases involved using a casetext search, “Judge /7 Barrett and disability or disabled and 504 or ADA.” Then, Law Office Space blog posted a link to SCOTUS blog, which had a page listing all her cases, here17070195121121121121121121. Interestingly, SCOTUS blog missed one case, McCray v. Wilkie, which we have discussed previously in our blog and will mention later as well.

 

I

Cases

 

  1. Banks v. Patton17171196122122122122122122, a nonprecedential disposition order from July 26, 2018: In this case, a prisoner claimed that the jail did not reasonably accommodate his disabilities. Judge Barrett was part of the opinion holding that the prisoner seeking a change in security classification to be housed in a different location in the prison was asking for a fundamental alteration to the program. It also held that the accommodations were denied for reasons other than disability. Finally, the opinion held that the prisoner should not have had summary judgment entered against him for failure to exhaust administrative remedies as the prison never responded to his claims.
  2. Carello v. Aurora Policeman Credit Union17272197123123123123123123, unpublished decision decided July 15, 2019: In this case, the plaintiff sued the credit union for website inaccessibility. Judge Barrett wrote the opinion holding that the plaintiff had no standing since he could never be a member of the credit union. There really isn’t anything revolutionary about this case as my colleague Richard Hunt has discussed many times in his blog. The thing to note here is that the inability to become a member only works for a plaintiff that could never become a member. It is entirely possible that a membership only organization may wind up in a situation where the plaintiff using a screen reader could conceivably become a member. In that case, the standing strategy doesn’t work.
  3. Cook County v. Wolf17373198124124124124124124, unpublished decision decided June 10, 2020: This case involved the public charge rule. Judge Barrett dissented and said that the public charge rule was within the authority of the Department of Homeland Security. However, the case should have been remanded to see if the public charge rule violated other laws, such as but not limited to the Rehabilitation Act of 1973.
  4. Graham v. Arctic Zone IcePlex, LLC17474199125125125125125125, unpublished decision decided July 23, 2019: This case has been previously discussed recently by my colleague Eric Meyer, a partner with Fisher Broyles, in his blog17575200126126126126126126. Here, a plaintiff sued his employer for failure to accommodate his disability. Judge Barrett wrote the opinion and held: 1) plaintiff did not provide sufficient information to the employer to determine the necessary accommodations; 2) just because an employer does not act on one problem does not forfeit the employer’s right to act later; and 3) the plaintiff did not furnish sufficient evidence to indicate bad faith on the part of the employer with respect to intentional discrimination.
  5. Grussgot v. Milwaukee Jewish Day School Inc.17676201127127127127127127, 882 F.3d 655, decided February 13, 2018: This case involved the ministerial exception. Per curiam opinion that Judge Barrett joined. The opinion anticipate the Supreme Court decision in Lady of Guadalupe. In particular, the plaintiff was found to be a minister and language used in the opinion included: the plaintiff had a role connected to the employer’s religious mission; plaintiff participated in shaping the practice of faith; and the school intended her role to be a religious one. Since the opinion occurred before Lady of Guadalupe, the opinion went through all four opinions in Hosanna Tabor17777202128128128128128128 and found that the 2 to 2 split resolved itself in favor of the plaintiff being a minister.
  6. King v. Hendricks County Commissioners17878203129129129129129129, 954 F.3d 981, decided March 31, 2020: In this case, Judge Barrett joined an opinion by Judge Wood upholding a summary judgment and holding the following in an excessive force case involving a person with a disability. In particular, the opinion said that no reasonable accommodations were proposed by the plaintiff. Also, there is a discussion of but for causation, but that discussion in my opinion has now been superseded by Bostock, which we discussed here17979204130130130130130130.
  7. Marx v. Richland County18080205131131131131131131, nonprecedential disposition decided September 23, 2019: This case involved a failure to accommodate. Judge Barrett was part of an opinion holding that the plaintiff never triggered the interactive process because he never came out and said the accommodation was needed and why.
  8. Mayle v. City of Chicago18181206132132132132132132, nonprecedential disposition decided April 29, 2020. In this case, plaintiff had a hog that he trained to engage in recognition and response. He wanted to take the hog to public places just like a person could take a dog that has been trained to engage in recognition and response to public places. Judge Barrett joined an order saying: 1) the right to a service animal was not a fundamental right; 2) persons with disabilities are in the rational basis class; and 3) a rational basis existed for limiting service animals to dogs so the Department of Justice title II and title III regulations excluding service animals other than dogs are kosher. I just want to point out that the hog in this case would undoubtedly be considered an assistance animal under the latest HUD circular, which we discussed here18282207133133133133133133.
  9. Moens v. City of Chicago18383208134134134134134134, nonprecedential disposition decided May 20, 2020. In this case Judge Barrett joined an order saying that attendance was an essential function of the job and there was no evidence of a hostile work environment. I note that this decision came down after the pandemic but well after the case had been argued. Whether attendance is an essential function of the job is no longer subject to the same assumptions in place before the pandemic.
  10. Chaudry v. Amazon.com.Dedc, LLC18484209135135135135135135, a nonprecedential disposition decided February 12, 2019. In this case, she joined an order dismissing the case. Basically, plaintiff was pro se and simply could not craft an argument or a complaint that could be understood by the court.
  11. Parent v. Taylor18585210136136136136136136, 914 F.3d 467 decided January 22, 2019: This case involved a system in Wisconsin that allowed people to transfer from one school to another out of their district. In order to be able to do the transfer, a school had to find first that they had excess capacity. Plaintiff challenged that. Judge Barrett joined an opinion written by Judge Sykes saying that whether excess capacity existed was an essential eligibility requirement of the program. Also, removal of the excess capacity requirement would fundamentally alter the nature of the program. Finally, Judge Sykes quoting from another case stated that federal law forbids discrimination based upon stereotypes about a handicap, but it does not permit decisions based on the actual attributes of the handicap.” I must confess I am at a loss to understand the distinction between stereotypes and attributes. I can see how Judge Sykes could say that excess capacity was an essential eligibility requirement and that getting rid of that requirement would fundamentally alter the nature of the program.
  12. Pegues v. Coe18686211137137137137137137, nonprecedential disposition decided April 11, 2019: In this case, Judge Barrett joined an order finding that plaintiff did not make a showing that the prison was deliberately indifferent to his medical needs. Importantly, the case did not involve a failure to accommodate or it is possible that deliberate indifference may have been looked at differently as we discussed here18787212138138138138138138.
  13. Penny v. Lincoln’s Challenge Academy18888213139139139139139139, a nonprecedential disposition decided August 27, 2020: In this case, Judge Barrett joined an order affirming summary judgment saying that there was no evidence connecting any dislike for the plaintiff with her protected activity. The only thing I will say about this case is that there is a vibe that summary judgment can be used to screen out cases. Many Judges take that approach, though not all.
  14. Pierri v. Medline Industries18989214140140140140140140, unpublished decision decided August 6, 2020: This case involved an association discrimination claim. Judge Barrett joined an opinion by Judge Wood holding that no adverse action had occurred. The decision also talks about how association claims in the Seventh Circuit fall into three categories but that list was not exhaustive. We discussed the Seventh Circuit’s approach to association discrimination claims here19090215141141141141141141.
  15. Sansone v. Brennan19191216142142142142142142, 917 F.3d 975 decided March 6, 2019. In this case, Judge Barrett wrote the opinion holding that the jury instruction on reasonable accommodation given by the lower court was kosher, but the court erred in its ruling regarding expert testimony.
  16. Youngman v. Peoria County19292217143143143143143143, 947 F.3d 1037 decided January 24, 2020. In this case, Judge Barrett joined an opinion by Judge Rovner holding that the plaintiff could not link their symptom needing accommodation with the disability alleged.
  17. McCray v. Wilkie19393218144144144144144144, unpublished decision from July 16, 2020. In this case, which we discussed here19494219145145145145145145 , Judge Barrett joined an opinion holding that unreasonable delay in providing a reasonable accommodation is actionable.

 

II

Judge Barrett’s Approach

 

As mentioned before, you simply can’t by reading these decisions get a sense of how Judge Barrett approaches problems. Part of that is that a lot of the opinions involving people with disabilities were opinions she joined and did not write herself or were nonprecedential dispositions. Also, the opinions are relatively straightforward situations. So, where do you go to get a sense of how she approaches analyzing cases. I must admit I was stumped until in my research for trying to figure out how she might view Chevron deference, I got led to her law review article “Substantive Canons and Faithful Agency,” published in the Boston University Law Review in 2010. In college, I took a course called legal theory and reading this law review article reminded me very much of what I read in that course. It is a 75 page law review article, but I can condense it into the following key points. Before getting there, a word about canons of construction is in order. Canons of construction, as she points out in her law review article, have been around from the very beginning of this country. They are used in a variety of purposes. Sometimes, as a tiebreaker to figure out situations that are unclear. Other times they are used to carry out values when the statutes seem to violate those. She considers herself a textualist and so the use of these Canon can be problematic for someone that relies on text first. She also believes that Judges must be faithful to the legislature when it comes to laws that they make because it is the legislature’s job to make the laws. Also as a result of Marbury v. Madison, she also believes that the courts must be faithful to the Constitution as well. So, after her exhaustive research she concludes the power to develop and apply substantive canons (something that could change how a case is decided rather than just a procedural item), of construction is consistent with constitutional structures subject to important limitations below.

 

  1. The Constitution affords federal courts the ability to part from the best interpretation of a statute in favor of one that is less plausible yet still bearable because the power to do that derives from the power of judicial review. However, a court may exercise this power only in pursuit of constitutional values.
  2. Canons promoting values beyond the Constitution may be employed only as a presumption guiding the choice where equally plausible interpretations of the statute exist.
  3. Language pushing canons must be tied to relatively specific constitutional norms and must be consistent with the constitutional value they purport to promote.
  4. Canons permitting a court to qualify clear text run headlong into the obligation of faithful agency and are inconsistent with the constitutional structure.
  5. Absent a clear statement, a court will not interpret a statute to raise a serious constitutional question nor will it interpret a statute to abrogate customary international law.
  6. No justification exist for departing from the plain text of a constitutional statute.

 

III

Thoughts/Takeaways

 

  1. A couple of these cases might be decided differently now that Bostock has been decided. As we discussed here19595220146146146146146146, Bostock has fundamentally changed what but for causation means in the context of discrimination cases.
  2. Her opinion upholding the lack of standing in the credit union case is straightforward. As mentioned earlier in this entry, the strategy doesn’t work if a plaintiff could conceivably become a member of the credit union.
  3. Nothing on Auer or Chevron deference. I do think you can say from §II of this blog entry that she would not like Auer deference and would support getting rid of it or severely narrowing it as the Supreme Court did in Kisor v. Wilkie, which we discussed here19696221147147147147147147. Regarding Chevron deference, that is a closer call because all legislation has an enabling clause in them that allows a particular agency to implement the regulation. That kind of implementing clause might give someone who is a believer in faithful agency that Chevron deference makes perfect sense. Some States, such as Illinois, have a separate agency serving under the legislature whose purpose is to ensure that proposed regulations are consistent with legislative intent. One wonders if Judge Barrett would approve of such arrangements as being constitutional because it ensures faithfulness to the legislature, which has the ultimate authority for making laws.
  4. Judging from Grussgot as well as her strong religious faith, she is likely to be a strong supporter of reading the ministerial exception broadly.
  5. Unclear as to where she stands with respect to summary judgment motions. Many Judges use it as a screen out tool to prevent only but the best cases from getting to the jury. Justice Gorsuch is on the other hand does not like summary judgment tools at all. He looks for genuine issue of material facts and does not care for how summary judgment is often used as a screen out tool.
  6. I considered blogging at one point in time on the hog case. I may have even alluded to it in a comment to a previous blog entry. Keep in mind, the hog would be an assistance animal under the HUD circular. So, while the plaintiff could not take his hog out into public places, he certainly is able under the latest HUD circular19797222148148148148148148 to have the hog at his place of residence as an assistance animal.
  7. Any judicial opinion involving facts before March 2020 holding that attendance is an essential function of the job is suspect in light of what has happened since. As I have mentioned previously in the blog, I expect lots of litigation over whether attendance is a personal preference or an essential function of the job.
  8. Deliberate indifference for purpose of medical needs in a prison is not the same as deliberate indifference for purposes of pursuing damages against a title II entity for failure to accommodate. For the leading case discussing damages under title II of the ADA, see this blog entry19898223149149149149149149.
  9. Likely to go before the Supreme Court is just how to deal with association discrimination claims. Must they fit into one of three categories as the Seventh Circuit suggests, or can association discrimination claim go beyond those three categories. It is unclear where she stands on that.
  10. Also, not clear on how close the link between the disability and the accommodation must be. For example, how close of a link does have to be to the essential functions of the job where an individual needs a service animal in order to function in the mainstream world. That service animal is going to do a lot of different things that have nothing to do with an individual’s job. However, an individual could not do the job but for the service animal.
  11. Justice Scalia’s impact on jurisprudence has been absolutely huge. As Justice Kagan has said, “we are all textualist now.” However, what that means is not the same for every single judge.. For example, it is pretty clear from reading the law review article discussed in §II of this blog entry that Judge Barrett would not have agreed with Justice Gorsuch in Bostock.
  12. Unclear as to what equal protection class Judge Barrett would place persons with disabilities into.
  13. When it comes to persons with disabilities, what I have found is that people who get disability so to speak either have a disability themselves or are closely associated with someone who does. It has been widely reported that Judge Barrett has a child with Down syndrome. How that might seep into her disability related decisions is far from clear.

 

Voting has already started in many places. Regardless of your views, make sure you vote.

First off, I want to wish all of my Jewish brethren a happy new year, and a nice period of reflection leading up to Yom Kippur. A bit different this year with massive synagogue gatherings not being in the cards. Some of us just reflected while others may have gone online and participated with their synagogue that way. Regardless of the means used, I hope your reflection went well.

 

I have quite a few cases that I could blog on in my pipeline, but today I opted to blog on HR 2694, the Pregnant Workers Fairness Act168119119119186117 that passed with large bipartisan majorities in the House on September 17. A few of my colleagues who blog on labor and employment law have already mentioned it, such as Eric Meyer and Jon Hyman. It wouldn’t surprise me if Robin Shea and many others weigh in as well. I thought I would break it down. So, here goes.

 

As we know from this blog entry, it makes sense as a preventive law matter to analyze accommodations for women who are pregnant in the same way that you would go about doing it for the ADA. However, that is just a matter of preventive law. This particular bill would mandate that whenever dealing with accommodation for women who are pregnant, you want to have your ADA hat on. The blog entry is divided into categories, all of which except the thoughts/takeaways section focuses on the Act itself. You are definitely going to want to read the whole thing as focusing on just parts of the Act doesn’t make any sense. Also, readers consistently tell me that my thoughts/takeaways section is very valuable. So, that means you need to read the whole thing. It isn’t very long anyway.

 

I

Unlawful Employment Practices Include

 

  1. Not making reasonable accommodations to the known limitations related to the pregnancy, childbirth, or related medical conditions of a qualified employee unless the covered entity can show an undue hardship on the operation of the business;
  2. Requiring a qualified employee affected by pregnancy, childbirth, or related medical conditions to accept an accommodation other than any reasonable accommodation arrived at through the interactive process;
  3. Denying employment opportunities to a qualified employee if the denial was based upon the need of the covered entity to make reasonable accommodation to the known limitations related to the pregnancy, childbirth, or related medical conditions of a qualified employee;
  4. Requiring a qualified employee to take leave, whether paid or unpaid, if another reasonable accommodation can be provided to the known limitations related to the pregnancy, childbirth, or related medical conditions of a qualified employee;
  5. Taking adverse action and terms, condition, or privileges of employment against a qualified employee on account of the employee requesting or using a reasonable accommodation to the known limitations related to the pregnancy, childbirth, or related medical conditions of the employee.

 

II

Remedies

 

  1. Remedies are tied into title VII of the Civil Rights Act of 1964.
  2. Attorney fees and expert witness fees are recoverable.
  3. Prohibits retaliation.
  4. Prohibits coercion, intimidation, threats, or interference.
  5. Good faith is a defense to damages.
  6. There is a forcible waiver of sovereign immunity.

 

III

Applicability to Federal Government

 

  1. Applies to Congress.
  2. Applies to employees of the federal government.

 

IV

Definitions

 

  1. Covered entity under this Act is defined in the same way as §701(n) of the Civil Rights Act of 1964, 42 U.S.C. 2000e(n).169120120120187118
  2. “Known limitation,” means a physical and mental condition related to, or affected by, or arising out of pregnancy, childbirth, or related medical conditions that the employee or employee’s representative has communicated to the employer whether or not such condition meets the definition of a disability under the ADA.
  3. “Qualified employee,” means an employee or applicant who, with or without reasonable accommodation, can perform the essential functions of the employment position. However, a person is still qualified if all of the following are true: 1) any inability to perform the essential function is for a temporary period; 2) the essential function could be performed in the near future; and 3) the inability to perform the essential function can be reasonably accommodated.
  4. “Reasonable accommodation,” and “undue hardship,” mean the same thing as found in 42 U.S.C. §12111170121121121188119, title I of the ADA.

 

V

Thoughts/Takeaways

 

  1. When I talked to my colleague Robin Shea, a partner with Constangy et. al., about this, she thought the bill was a good idea because while doing all this is great preventive law. Young v. United Parcel Service171122122122189120 can get fuzzy at times, as discussed later. I agree with her. After Young v. United Parcel Service, this bill is exactly what best practices for any employer would be and it would be codified.
  2. Covered entity tracks the Civil Rights Act and NOT what is a place of public accommodation under 42 U.S.C. §12181172123123123190121(7).
  3. Must have 15 or more employees, which is the same number as four title I of the ADA.
  4. Requires an interactive process and that process if done right is a defense to damages, which matches up with the remedies provisions associated with the ADA at 42 U.S.C. §1981a(a)(3).173124124124191122 Remember to get it right, as we discussed here174125125125192123. The interactive process must be in search of a reasonable accommodation that would provide the employee with an equally effective opportunity that does not cause an undue hardship, which also matches up with title I of the ADA.
  5. Since women are in an intermediate scrutiny class, the forcible waiver of sovereign immunity will probably fly because it likely would be found to be proportional to the harm being redressed.
  6. Undue hardship as phrased in the Act clearly includes both logistical and financial undue hardship, which also matches up with how title I of the ADA has been interpreted over the years.
  7. The EEOC is responsible for implementing the statute and has two years to draft regulations. My guess is that the regulations would closely track the title I ADA regulations.
  8. Out of necessity, qualified under the Pregnant Workers Fairness Act is not the same as qualified under title I of the ADA, though it is close.
  9. Is this legislation needed? After all, didn’t the Supreme Court in Young say that if an employer is accommodating persons with disabilities, they also have to accommodate pregnant workers? While it is true that the Supreme Court did hold that much, the paradigm for making it work is quite vague. I confirmed this by rereading the opinion. Young tells us the following: 1) McDonnell Douglas burden shifting gets used in pregnancy nondiscrimination matters; 2) a prima facie case means showing: the plaintiff belonged to the protected class; that she sought an accommodation; and that the employer did not accommodate her while accommodating other similar in their ability or inability to work; 3) a plaintiff can create a genuine issue of material fact as to whether a significant burden exists by providing evidence that the employer accommodates a large percentage of nonpregnant workers while failing to accommodate a large percentage of pregnant workers. So, it is clear from rereading the opinion that pregnant workers must be reasonably accommodated if you are ready accommodating persons without disabilities. However, the opinion doesn’t say much about how that process is supposed to work. For example, no mention of an interactive process. Also, no mention of how far you have to go with respect to accommodating a pregnant worker in need of accommodations. Lawyers familiar with the ADA quickly realized that it made a great deal of sense to just take the ADA process and layer it onto accommodating pregnant workers. However, that is just lawyers being creative. Not all lawyers are that familiar with the ADA. This legislation makes it statutory that preventive law currently being used by farsighted lawyers also familiar with the ADA should be codified. So, I come down on the side that Young simply isn’t clear enough as to what needs to be done when accommodating pregnant workers, and so, in my view, this legislation is necessary.
  10. It’s going to be interesting to see whether this gets a Senate vote. It passed the House by overwhelming majorities. I am a political junkie, I wrote a seminar paper in college on voting behavior and follow the field religiously, and I have been reading quite a bit about how the Republicans are in trouble with educated women in the suburbs. Passing this legislation, which is something that farsighted employers should be doing anyway and which the Chamber of Commerce is backing, would seem to be an easy way for Republicans to say that they have done something for a group that is treating them with a great deal of skepticism at the moment. Then again, there is only so much bandwidth and there is a vacancy on the Supreme Court that has very much moved to the forefront. So, anybody’s guess at two whether the Senate considers it. Also, anybody’s guess as to whether the Senate amend the house bill in some way and it has to go to a conference committee.
  11. The overlap between FMLA and the ADA often raises the question whether you can force an employee to take FMLA leave rather than accommodate them per the ADA. The Pregnant Workers Fairness Act makes clear that you cannot do that with respect to a pregnant person working for an entity covered by the Act. Best practices is such that you shouldn’t do that for the ADA either, though there isn’t a specific prohibition that would prevent an employer from doing that. That said, very bad idea for the employer to insist on leave and then end the interactive process.
  12. The use of the term “based on,” means that causation is but for as detailed in Bostock, discussed here175126126126193124.

Last week, the EEOC updated Covid-19 publication. What I have done here is list the EEOC update verbatim with respect to the material that we have not covered before. At the end of each section that is new (don’t worry about the numbers that appear in the hyperlink sections of the EEOC document as that it just the way it gets formatted when I cut and pasted), I give my thoughts and takeaways. For my Jewish brethren, happy new year. It is going to be a strange new year as most of us will not actually be going to synagogue and doing it, if at all, virtually.

A. Disability-Related Inquiries and Medical Exams

The ADA has restrictions on when and how much medical information an employer may obtain from any applicant or employee. Prior to making a conditional job offer to an applicant, disability-related inquiries and medical exams are generally prohibited. They are permitted between the time of the offer and when the applicant begins work, provided they are required for everyone in the same job category. Once an employee begins work, any disability-related inquiries or medical exams must be job related and consistent with business necessity.

A.6.  May an employer administer a COVID-19 test (a test to detect the presence of the COVID-19 virus) 29when evaluating an employee’s initial or continued presence in the workplace? (4/23/20; updated 9/8/20 to address stakeholder questions about updates to CDC guidance)

The ADA requires that any mandatory medical test of employees be “job related and consistent with business necessity.” Applying this standard to the current circumstances of the COVID-19 pandemic, employers may take screening steps to determine if employees entering the workplace have COVID-1930168119117 because an individual with the virus will pose a direct threat31169120118 to the health of others. Therefore an employer may choose to administer COVID-19 testing to employees before initially permitting them to enter the workplace and/or periodically to determine if their presence in the workplace poses a direct threat to others. The ADA does not interfere with employers following recommendations by the CDC32170121119 or other public health authorities regarding whether, when, and for whom testing or other screening is appropriate. Testing administered by employers consistent with current CDC guidance will meet the ADA’s “business necessity” standard.

Consistent with the ADA standard, employers should ensure that the tests are considered accurate and reliable. For example, employers may review information33171122120 from the U.S. Food and Drug Administration about what may or may not be considered safe and accurate testing, as well as guidance from CDC or other public health authorities. Because the CDC and FDA may revise their recommendations based on new information, it may be helpful to check these agency websites for updates. Employers may wish to consider the incidence of false-positives or false-negatives associated with a particular test. Note that a positive test result reveals that an individual most likely has a current infection and may be able to transmit the virus to others. A negative test result means that the individual did not have detectable COVID-19 at the time of testing.

A negative test does not mean the employee will not acquire the virus later. Based on guidance from medical and public health authorities, employers should still require–to the greatest extent possible–that employees observe infection control practices (such as social distancing, regular handwashing, and other measures) in the workplace to prevent transmission of COVID-19.

Thoughts/Takeaways:

  1. Covid-19 is a direct threat per the ADA.
  2. CDC guidelines can be a bit all over the place. You may want to consider having your own infectious disease specialist on retainer especially since the EEOC says that the CDC guidance meets ADA’s business necessity standard.
  3. Any test used must be accurate and reliable, which is very much an open question.
  4. Infection control practices are always a good idea.

Note: Question A.6 and A.8 address screening of employees generally. See Question A.9 regarding decisions to screen individual employees.

A.8.  May employers ask all employees physically entering the workplace if they have been diagnosed with or tested for COVID-19? (9/8/20; adapted from 3/27/20 Webinar Question 1)

Yes. Employers may ask all employees who will be physically entering the workplace if they have COVID-19 or symptoms associated with COVID-19, and ask if they have been tested for COVID-19. Symptoms associated with COVID-19 include, for example, fever, chills, cough, and shortness of breath. The CDC has identified a current list of symptoms37172123121.

An employer may exclude those with COVID-19, or symptoms associated with COVID-19, from the workplace because, as EEOC has stated, their presence would pose a direct threat to the health or safety of others. However, for those employees who are teleworking and are not physically interacting with coworkers or others (for example, customers), the employer would generally not be permitted to ask these questions.

Thoughts/Takeaways:

  1. Nothing wrong with asking all employees physically entering the workplace if they have Covid-19 or symptoms associated with Covid-19. Also, nothing wrong with asking all employees if they have been tested for Covid-19. Considering the unreliability of tests and the shortage of testing in many states, this may be a better approach.

A.10.  May an employer ask an employee who is physically coming into the workplace whether they have family members who have COVID-19 or symptoms associated with COVID-19? (9/8/2039; adapted from 3/27/20 Webinar Question 4)40

No. The Genetic Information Nondiscrimination Act (GINA) prohibits employers from asking employees medical questions about family members. GINA, however, does not prohibit an employer from asking employees whether they have had contact with anyone diagnosed with COVID-19 or who may have symptoms associated with the disease. Moreover, from a public health perspective, only asking an employee about his contact with family members would unnecessarily limit the information obtained about an employee’s potential exposure to COVID-19.

Thoughts/Takeaways:

  1. This answer is pretty straightforward.
  2. It isn’t only the ADA that has to be worried about in dealing with these kind of issues. Other laws, such as but not limited to the Genetic Information Nondiscrimination Act, must be worried about as well.

A.11.  What may an employer do under the ADA if an employee refuses to permit the employer to take his temperature or refuses to answer questions about whether he has COVID-19, has symptoms associated with COVID-19, or has been tested for COVID-19? (9/8/2041; adapted from 3/27/20 Webinar Question 2)42

Under the circumstances existing currently, the ADA allows an employer to bar an employee from physical presence in the workplace if he refuses to have his temperature taken or refuses to answer questions about whether he has COVID-19, has symptoms associated with COVID-19, or has been tested for COVID-19. To gain the cooperation of employees, however, employers may wish to ask the reasons for the employee’s refusal. The employer may be able to provide information or reassurance that they are taking these steps to ensure the safety of everyone in the workplace, and that these steps are consistent with health screening recommendations from CDC. Sometimes, employees are reluctant to provide medical information because they fear an employer may widely spread such personal medical information throughout the workplace. The ADA prohibits such broad disclosures. Alternatively, if an employee requests reasonable accommodation with respect to screening, the usual accommodation process should be followed; this is discussed in Question G.7.

Thoughts/Takeaways:

  1. A person refusing to allow an employer to take his or her temperature or refusing to answer questions about whether he or she has Covid-19, symptoms, or has been tested for Covid-19 can be barred from the workplace.
  2. Medical information must be kept in a separate file. The employer certainly wants to have a system in place for keeping medical related information secure and confidential.
  3. Employees are entitled to reasonable accommodations with respect to screening if necessary. Don’t forget about the interactive process, which we discussed here173124122.

A.12.  During the COVID-19 pandemic, may an employer request information from employees who work on-site, whether regularly or occasionally, who report feeling ill or who call in sick? (9/8/20; adapted from Pandemic Preparedness Question 6)

Due to the COVID-19 pandemic, at this time employers may ask employees who work on-site, whether regularly or occasionally, and report feeling ill or who call in sick, questions about their symptoms as part of workplace screening for COVID-19.

Thoughts/Takeaways: This answer is straightforward. So, I don’t have any thoughts/takeaways for this section.

A.13.  May an employer ask an employee why he or she has been absent from work? (9/8/20; adapted from Pandemic Preparedness Question 15)

Yes. Asking why an individual did not report to work is not a disability-related inquiry. An employer is always entitled to know why an employee has not reported for work.

Thoughts/Takeaways: This answer is straightforward. So, I don’t have any thoughts/takeaways for this section.

A.14.  When an employee returns from travel during a pandemic, must an employer wait until the employee develops COVID-19 symptoms to ask questions about where the person has traveled? (9/8/20; adapted from Pandemic Preparedness Question 8)

No. Questions about where a person traveled would not be disability-related inquiries. If the CDC or state or local public health officials recommend that people who visit specified locations remain at home for a certain period of time, an employer may ask whether employees are returning from these locations, even if the travel was personal.

Thoughts/Takeaways: This answer is straightforward. So, I don’t have any thoughts/takeaways for this section.

 

B. Confidentiality of Medical Information

With limited exceptions, the ADA requires employers to keep confidential any medical information they learn about any applicant or employee. 43Medical information includes not only a diagnosis or treatments, but also the fact that an individual has requested or is receiving a reasonable accommodation. 

B.5.  Suppose a manager learns that an employee has COVID-19, or has symptoms associated with the disease. The manager knows she must report it but is worried about violating ADA confidentiality. What should she do?  (9/8/20; adapted from 3/27/20 Webinar Question 5)

The ADA requires that an employer keep all medical information about employees confidential, even if that information is not about a disability. Clearly, the information that an employee has symptoms of, or a diagnosis of, COVID-19, is medical information. But the fact that this is medical information does not prevent the manager from reporting to appropriate employer officials so that they can take actions consistent with guidance from the CDC and other public health authorities.

The question is really what information to report: is it the fact that an employee—unnamed—has symptoms of COVID-19 or a diagnosis, or is it the identity of that employee? Who in the organization needs to know the identity of the employee will depend on each workplace and why a specific official needs this information. Employers should make every effort to limit the number of people who get to know the name of the employee.

The ADA does not interfere with a designated representative of the employer interviewing the employee to get a list of people with whom the employee possibly had contact through the workplace, so that the employer can then take action to notify those who may have come into contact with the employee, without revealing the employee’s identity. For example, using a generic descriptor, such as telling employees that “someone at this location” or “someone on the fourth floor” has COVID-19, provides notice and does not violate the ADA’s prohibition of disclosure of confidential medical information. For small employers, coworkers might be able to figure out who the employee is, but employers in that situation are still prohibited from confirming or revealing the employee’s identity. Also, all employer officials who are designated as needing to know the identity of an employee should be specifically instructed that they must maintain the confidentiality of this information. Employers may want to plan in advance what supervisors and managers should do if this situation arises and determine who will be responsible for receiving information and taking next steps.

  1. The ADA requires an employer keep all medical information about employees confidential even where that information is not about a disability.
  2. Even so, managers still have the ability to report to appropriate employer officials so they can take the appropriate action consistent with guidance from CDC and other public health authorities.
  3. Guidances from CDC can be a bit all over the place. Strongly consider having your own infectious disease specialist on retainer to help you sort it out. It’s possible that excellent infection control practices and the CDC guidances may not always match up.
  4. Employer should make every effort to limit the number of people who get to know the name of the employee.
  5. Contact tracing is permissible. Even so, be sure to preserve confidentiality and make clear to your employees the necessity of preserving confidentiality.

 

B.7.  An employer knows that an employee is teleworking because the person has COVID-19 or symptoms associated with the disease, and that he is in self-quarantine. May the employer tell staff that this particular employee is teleworking without saying why? (9/8/20; adapted from 3/27/20 Webinar Question 7)

Yes. If staff need to know how to contact the employee, and that the employee is working even if not present in the workplace, then disclosure that the employee is teleworking without saying why is permissible. Also, if the employee was on leave rather than teleworking because he has COVID-19 or symptoms associated with the disease, or any other medical condition, then an employer cannot disclose the reason for the leave, just the fact that the individual is on leave.

Thoughts/Takeaways: Be sure to read the question that begins this section closely. Note that it says, “without saying why?” That is something very important to not forget about or you wind up in an ADA confidentiality problem.

B.8.  Many employees, including managers and supervisors, are now teleworking as a result of COVID-19. How are they supposed to keep medical information of employees confidential while working remotely? (9/8/20; adapted from 3/27/20 Webinar Question 9)

The ADA requirement that medical information be kept confidential includes a requirement that it be stored separately from regular personnel files. If a manager or supervisor receives medical information involving COVID-19, or any other medical information, while teleworking, and is able to follow an employer’s existing confidentiality protocols while working remotely, the supervisor has to do so. But to the extent that is not feasible, the supervisor still must safeguard this information to the greatest extent possible until the supervisor can properly store it. This means that paper notepads, laptops, or other devices should not be left where others can access the protected information.

Similarly, documentation must not be stored electronically where others would have access. A manager may even wish to use initials or another code to further ensure confidentiality of the name of an employee.

Thoughts/takeaways: Just because a lot of people are teleworking does not mean that the ADA requirement that medical information be stored separately from regular personnel files no longer applies. It does. The answer to this section is otherwise straightforward.

D. Reasonable Accommodation

Under the ADA, reasonable accommodations are adjustments or modifications provided by an employer to enable people with disabilities to enjoy equal employment opportunities. If a reasonable accommodation is needed and requested by an individual with a disability to apply for a job, perform a job, or enjoy benefits and privileges of employment, the employer must provide it unless it would pose an undue hardship, meaning significant difficulty or expense. An employer has the discretion to choose among effective accommodations. Where a requested accommodation would result in undue hardship, the employer must offer an alternative accommodation if one is available absent undue hardship. In discussing accommodation requests, employers and employees may find it helpful to consult the Job Accommodation Network (JAN) website for types of accommodations, www.askjan.org52174125123. JAN’s materials specific to COVID-19 are at https://askjan.org/topics/COVID-19.cfm53175126124.

D.8.  May an employer invite employees now to ask for reasonable accommodations they may need in the future when they are permitted to return to the workplace? (4/17/20; updated 9/8/20 to address stakeholder questions)

Yes. Employers may inform the workforce that employees with disabilities may request accommodations in advance that they believe they may need when the workplace re-opens. This is discussed in greater detail in Question G.6. If advance requests are received, employers may begin the “interactive process” – the discussion between the employer and employee focused on whether the impairment is a disability and the reasons that an accommodation is needed. If an employee chooses not to request accommodation in advance, and instead requests it at a later time, the employer must still consider the request at that time.

Thoughts/Takeaways:

  1. An employer has the obligation to begin the interactive process the moment it becomes aware that a person may need accommodations. Remember, magic words are not required. See this blog entry for example176127125.
  2. Don’t forget about getting the interactive process right, which we discussed here177128126.
  3. An employee is free to request accommodations at any time.
  4. Nothing wrong with the employer informing its workforce that employees with disabilities may request accommodations in advance if they believe they may need them when the workplace reopens.
  5. Unreasonable delay in granting accommodations may be actionable, as we discussed here178129127, though Covid-19 may grant an employer some degree of slack.

D.14.  When an employer requires some or all of its employees to telework because of COVID-19 or government officials require employers to shut down their facilities and have workers telework, is the employer required to provide a teleworking employee with the same reasonable accommodations for disability under the ADA or the Rehabilitation Act that it provides to this individual in the workplace?  (9/8/2066; adapted from 3/27/20 Webinar Question 20)67

If such a request is made, the employer and employee should discuss what the employee needs and why, and whether the same or a different accommodation could suffice in the home setting. For example, an employee may already have certain things in their home to enable them to do their job so that they do not need to have all of the accommodations that are provided in the workplace.

Also, the undue hardship considerations might be different when evaluating a request for accommodation when teleworking rather than working in the workplace. A reasonable accommodation that is feasible and does not pose an undue hardship in the workplace might pose one when considering circumstances, such as the place where it is needed and the reason for telework. For example, the fact that the period of telework may be of a temporary or unknown duration may render certain accommodations either not feasible or an undue hardship. There may also be constraints on the normal availability of items or on the ability of an employer to conduct a necessary assessment.

As a practical matter, and in light of the circumstances that led to the need for telework, employers and employees should both be creative and flexible about what can be done when an employee needs a reasonable accommodation for telework at home. If possible, providing interim accommodations might be appropriate while an employer discusses a request with the employee or is waiting for additional information.

 

Thoughts/takeaways:

  1. It doesn’t matter where an employee works. If they have a disability and need an accommodation to do the essential functions of their job, then they are entitled to that accommodation absent in undue hardship. Since the place of work is different, the accommodations may be different as well. Figuring all this out is why you have the interactive process and why getting it right is important. It is entirely possible that the home environment may be already set up for the individual, but you just don’t know. Don’t forget that it is not proper to have the employee pay for their own accommodations.
  2. A huge issue is whether attendance on the job is a personal preference or an essential function of the job. The fact that people have been able to work from home productively for some time now may very well change the calculus of whether attendance at the actual worksite is an essential function of the job. Figuring out whether attendance is an essential function of the job at the actual worksite means taking a look at this blog entry179130128.
  3. Nothing wrong with providing interim accommodations while the interactive process works itself out.

D.15.  Assume that an employer grants telework to employees for the purpose of slowing or stopping the spread of COVID-19. When an employer reopens the workplace and recalls employees to the worksite, does the employer automatically have to grant telework as a reasonable accommodation to every employee with a disability who requests to continue this arrangement as an ADA/Rehabilitation Act accommodation?  (9/8/20; adapted from 3/27/20 Webinar Question 21)

No. Any time an employee requests a reasonable accommodation, the employer is entitled to understand the disability-related limitation that necessitates an accommodation. If there is no disability-related limitation that requires teleworking, then the employer does not have to provide telework as an accommodation. Or, if there is a disability-related limitation but the employer can effectively address the need with another form of reasonable accommodation at the workplace, then the employer can choose that alternative to telework.

To the extent that an employer is permitting telework to employees because of COVID-19 and is choosing to excuse an employee from performing one or more essential functions, then a request—after the workplace reopens—to continue telework as a reasonable accommodation does not have to be granted if it requires continuing to excuse the employee from performing an essential function. The ADA never requires an employer to eliminate an essential function as an accommodation for an individual with a disability.

The fact that an employer temporarily excused performance of one or more essential functions when it closed the workplace and enabled employees to telework for the purpose of protecting their safety from COVID-19, or otherwise chose to permit telework, does not mean that the employer permanently changed a job’s essential functions, that telework is always a feasible accommodation, or that it does not pose an undue hardship. These are fact-specific determinations. The employer has no obligation under the ADA to refrain from restoring all of an employee’s essential duties at such time as it chooses to restore the prior work arrangement, and then evaluating any requests for continued or new accommodations under the usual ADA rules.

Thoughts/Takeaways:

  1. I agree that if there is no disability related limitation that requires teleworking, then the employer does not have to provide telework as an accommodation. It is also true that an employee is not entitled to the accommodation they prefer. It’s a matter of what get the employee to the same starting line. However, don’t forget that many people are having long-term effects after coming down with Covid-19.
  2. The essential functions of the job may have changed. That is, teleworking may reveal that certain things that were essential functions are no longer essential functions. Preventive law would mean being flexible as jobs have evolved. Going back to the old way when the employee is currently productive may not make a lot of sense.
  3. Expect lots of litigation over whether attendance is a personal preference or an essential function of the job.
  4. Absolutely true that an employer has no obligation under the ADA to refrain from restoring all of an employee’s essential job functions at the time it chooses to restore the prior work arrangement, and then evaluating any request for continued or new accommodations through the interactive process. But see ¶ ¶ 2-3 of this section.

D.16.  Assume that prior to the emergence of the COVID-19 pandemic, an employee with a disability had requested telework as a reasonable accommodation. The employee had shown a disability-related need for this accommodation, but the employer denied it because of concerns that the employee would not be able to perform the essential functions remotely. In the past, the employee therefore continued to come to the workplace. However, after the COVID-19 crisis has subsided and temporary telework ends, the employee renews her request for telework as a reasonable accommodation. Can the employer again refuse the request? (9/8/20; adapted from 3/27/20 Webinar Question 22)

Assuming all the requirements for such a reasonable accommodation are satisfied, the temporary telework experience could be relevant to considering the renewed request. In this situation, for example, the period of providing telework because of the COVID-19 pandemic could serve as a trial period that showed whether or not this employee with a disability could satisfactorily perform all essential functions while working remotely, and the employer should consider any new requests in light of this information. As with all accommodation requests, the employee and the employer should engage in a flexible, cooperative interactive process going forward if this issue does arise.

Thoughts/Takeaways:

  1. See thoughts/takeaways to D.15 as to why what the EEOC says in D.16 is really good advice.

D.17.  Might the pandemic result in excusable delays during the interactive process? (9/8/20; adapted from 3/27/20 Webinar Question 19)

Yes. The rapid spread of COVID-19 has disrupted normal work routines and may have resulted in unexpected or increased requests for reasonable accommodation. Although employers and employees should address these requests as soon as possible, the extraordinary circumstances of the COVID-19 pandemic may result in delay in discussing requests and in providing accommodation where warranted. Employers and employees are encouraged to use interim solutions to enable employees to keep working as much as possible.

Thoughts/takeaways:

  1. As mentioned above, Covid-19 may give employers a bit of slack with respect to completing the interactive process. However, keep in mind that unreasonable delay may be actionable as we discussed here180131129.
  2. Get the interactive process right, as we mentioned

D.18.  Federal agencies are required to have timelines in their written reasonable accommodation procedures governing how quickly they will process requests and provide reasonable accommodations. What happens if circumstances created by the pandemic prevent an agency from meeting this timeline? (9/8/20; adapted from 3/27/20 Webinar Question 19)

Situations created by the current COVID-19 crisis may constitute an “extenuating circumstance”—something beyond a Federal agency’s control—that may justify exceeding the normal timeline that an agency has adopted in its internal reasonable accommodation procedures.

Thoughts/takeaways: Same as for D.17, immediately above.

F. Furloughs and Layoffs

F.2.  What are additional EEO considerations in planning furloughs or layoffs? (9/8/20; adapted from 3/27/20 Webinar Question 13)

The laws enforced by the EEOC prohibit covered employers from selecting people for furlough or layoff because of that individual’s race, color, religion, national origin, sex, age, disability, protected genetic information, or in retaliation for protected EEO activity.

Thoughts/Takeaways: F.2 is really straightforward. The only thing I will say is be sure to have knowledgeable counsel for each of the areas involved. Lawyers are specialists and some of us, like myself, are super specialists. Each of these laws can be very comprehensive and very involved.

I was thinking of blogging on the Seventh Circuit case where the Seventh Circuit held that the ministerial exception does not apply to hostile work environment claims. As sometimes happens, another labor and employment law blogger, this time Amy Epstein Gluck of Fisher Broyles, beat me to the punch, here173172186187117117. Amy did it so well that I am not sure what I could add to her excellent blog entry except that: 1) A Circuit Court split exists. So, look for it to go to the Supremes; and 2) the 10th Circuit case that held the ministerial exception does apply to hostile work environment claims did not have Justice Gorsuch on its panel.

 

Turning to our case of the day, Doe v. Supreme Court of Kentucky, here174173187188118118, I chose it because it is one of the best examples I have seen of calling out ableism. Ableism is the concept that people without disabilities know what is best for people with disabilities. Part of that includes people without disabilities concluding that people with disabilities can only practice their profession if they are closely monitored simply because they have disabilities. In a case decided by Judge Justin Walker, now of the District of Columbia Circuit, he made it clear that such philosophies are unacceptable. True, the plaintiff loses but that doesn’t make the philosophy any less acceptable. As usual, the blog entry is divided into categories and they are: Judge Walker tees it up; facts; court’s reasoning standing; court’s reasoning Rooker-Feldman/immunities; Judge Walker wraps it up; and thoughts/takeaways. Of course, the reader is free to concentrate on any or all of the categories. Also, you will see various numbers in §I. Those numbers are references to footnotes in the opinion, which you can find by reading the case175174188189119119.

 

I

Judge Walker Tees It up (Taken Directly From The Opinion)

 

Courts, journalists, and scholars have extensively documented the mental health issues that afflict lawyers. 1 The problems begin in law school, where “law students have disproportionate levels of stress, anxiety, and mental health concerns compared with other populations.”2 After graduation, lawyers suffer from depression at higher rates than non-lawyers.3 Not long ago, the Kentucky Bar Association President described a spike in Kentucky lawyers dying by suicide as “disproportionate” and “disconcerting.”4 Jane Doe was a lawyer in Florida. She moved to Kentucky. She wanted to practice law here. Bureaucrats didn’t want her to. They thought her mental disability made her unfit. For over two years, they stopped her. But she didn’t give up. And they eventually relented. Then Doe sued them, alleging they had illegally asked about her mental health history and treatment, illegally forced her to turn over her medical records and her therapists’ notes from their counseling sessions, and illegally treated her like a criminal because of her disability. This case is not only about Jane Doe. It’s also about the lawyers who decide who else can be a lawyer [citations omitted]. Under the Kentucky Constitution, that power belongs to the Supreme Court of Kentucky. 5 The court, in turn, delegates that job to its Bar Bureaucracy: § The Character and Fitness Committee and Board of Bar Examiners comprise the Office of Bar Admissions.6 § The Character and Fitness Committee prohibits people from practicing law if the committee thinks they are immoral7 or unfit.8 § The Board of Bar Examiners prohibits people from practicing law if they can’t pass a timed exam that tests their ability to memorize whole areas of the law they will never again need to know anything about. 9 § The Kentucky Bar Association decides who gets to stay a lawyer.10 § The Kentucky Lawyer Assistance Program keeps tabs on lawyers and aspiring lawyers who have mental health issues by monitoring their medications, counseling, where they live, and where they travel.11 Anyone with any power in this Bar Bureaucracy is a lawyer. So, just like an oil or drug cartel, those who are already selling something get to decide who else may sell that same thing. Of course, unlike most cartels, this one is legal. In fact, the Kentucky Constitution requires it.12 If Doe had sued the Bar Bureaucracy back when it stopped her from entering the market, she would have had standing to ask the Court to block it from treating her like it did. But you can’t blame Doe for waiting to sue. If your goal is to persuade the Bar Bureaucracy’s lawyers to let you 5 Ky. Const. § 116 (“The Supreme Court shall, by rule, govern admission to the bar and discipline members of the bar.”). 6 SCR 2.000. Some of the Supreme Court Rules cited here have been recently amended due to the ongoing pandemic, but none of the recent amendments are material to this analysis. 7 SCR 2.011(1); SCR 2.040(3). 8 SCR 2.011(2); SCR 2.040(3). 9 SCR 2.020(3); SCR 2.080. 10 SCR 3.025; SCR 3.050; SCR 3.060; SCR 3.640(8)(d); SCR 3.645(4); see, e.g., Grinnell v. Kentucky Bar Association, 602 S.W.3d 784 (Ky. 2020); see also SCR 3.035(1)(c) (“Failure to maintain a current address which allows for physical service of process with the Director [of the Kentucky Bar Association] may be prosecuted in the same manner as a violation of the Rules of Professional Conduct.”). 11 SCR 3.900; SCR 3.910(2); DN 14-1 ¶¶ 40, 72. 12 Ky. Const. § 116. Case 3:19-cv-00236-JRW Document 43 Filed 08/28/20 Page 3 of 18 PageID #: 647 4 join their club, it isn’t a good strategy to poke them in the eye with a lawsuit that accuses them of violating the Americans with Disabilities Act and the United States Constitution. Because the Bar Bureaucracy (finally) allowed Doe to practice law, she lacks standing for prospective relief. And because legislative and judicial immunity protect Bar Bureaucracies from money damages arising from the promulgation of bar rules and the adjudication of bar applications, the Court will dismiss Doe’s federal claims. In addition, the Court declines to exercise supplemental jurisdiction over Doe’s state-law claims. The Bar Bureaucracy won this round against an applicant it deemed suspect and undesirable. But there will be more applicants — and more lawsuits. Some of those plaintiffs will have standing to seek prospective relief. And when they do, the Bar Bureaucracy will have to answer for a medieval approach to mental health that is as cruel as it is counterproductive.

 

II

Facts (Taken Directly from the Opinion)

 

Jane Doe was born and raised in Kentucky.17 She earned her Florida law license in 2006 and worked there in government and private practice. After a 2014 diagnosis for Bipolar I Disorder, Doe entered a monitoring program run by the Florida Lawyers’ Assistance Program. She was, and remains, in good standing with the Florida bar.18 In December 2015, Doe applied for a Kentucky law license. The application required her to disclose her history of depression and Bipolar I Disorder and that she had undergone treatment. And so began her 994-day tale of bureaucratic woe. 14 Letter from U.S. Department of Justice, Civil Rights Division, to Karen L. Richards, Executive Director, Vermont Human Rights Commission (Jan. 21, 2014) at 5 (emphasis added). 15 Letter from U.S. Department of Justice, Civil Rights Division, to the Honorable Bernette J. Johnson, Chief Justice, Louisiana Supreme Court, Elizabeth S. Schell, Executive Director, Louisiana Supreme Court Committee on Bar Admissions, Charles B. Plattsmier, Chief Disciplinary Counsel, Louisiana Attorney Disciplinary Board (Feb. 5, 2014) at 23. 16 To be clear, neither Doe nor the Department of Justice has argued that Bar Bureaucracies cannot ask about an applicant’s relevant past conduct, regardless of whether mental disability had a role in that conduct. Rather, they argue that Bar Bureaucracies cannot ask about an applicant’s status as a person with a mental disability, and they cannot treat an applicant differently based on that status. So, for example, it’s fair game to ask, “Have you ever been fired?” Or, “Have you ever robbed a bank?” Applicants’ mental health provides no escape from the questions, even if they had a mental disability when they were fired (or robbed the bank). 17 The Court takes the facts from the Amended Complaint and draws all reasonable inferences in Doe’s favor. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The Court also relies on the Supreme Court Rules, which are public record. Bassett v. National Collegiate Athletic Association, 528 F.3d 426, 430 (6th Cir. 2008). 18 DN 14-1 ¶ 18. Case 3:19-cv-00236-JRW Document 43 Filed 08/28/20 Page 5 of 18 PageID #: 649 6 Doe disclosed everything Kentucky’s Bar Bureaucracy required her to disclose. That included two required releases giving the Bar Bureaucracy “complete access to her personal and private medical records, including treatment notes”19 and a third for her monitoring records from Florida. In January 2016, Doe’s doctor told the Bar Bureaucracy that Doe had “compli[ed] with medical advice, prescription instructions,” and what the Florida bar required of her.20 Doe’s doctors have always said she should “continue practicing law without concerns for her or the public’s safety.”21 The Bar Bureaucracy pressed on. So Doe sent in yet another form. This fourth medical records release granted “access to inpatient records, outpatient records, and treatment notes.”22 The next month, shortly before Doe took the February 2016 bar exam, the Character and Fitness Committee refused to approve her application. Instead, in March, the Bar Bureaucracy proposed, and Doe signed, a “consent agreement” for conditional admission. 23 It required 1) a Kentucky Contract (more on that later); 2) compliance with Florida’s rules and Kentucky’s rules and reporting requirements; and 3) “residency in Kentucky . . . unless” Doe was relocating for work and the Bar Bureaucracy approved. 24

 

Doe passed the bar exam. She paid the dues and swearing-in fee.

 

Instead of the personalized contract Hourigan [Director of the Kentucky Lawyer Assistance Program], had promised, she presented a boilerplate contract. It included a host of medically unnecessary requirements, including random drug and alcohol testing. When Doe told Hourigan she had never had drug or alcohol problems, Hourigan told her the provisions were standard. Hourigan, who is not a doctor27 but plays one on the Capitol steps, also said Doe’s medications required abstinence from alcohol. (They don’t.) Doe refused to sign the contract. She told Hourigan it violated the Americans with Disabilities Act, and “the ADA does not permit the disabled to be treated like criminals.”28 (It doesn’t.) D

 

Later in 2016, after Doe provided yet another medical-records release, Doe’s doctor advised Hourigan that Doe could drink alcohol on her medication. 25 Id. ¶ 49. 26 Id. ¶¶ 50, 54. 27 SCR 3.910(2). 28 DN 14-1 ¶ 52. Case 3:19-cv-00236-JRW Document 43 Filed 08/28/20 Page 7 of 18 PageID #: 651 8 Hourigan partially relented. She removed the alcohol provisions from the Kentucky Contract. But other intrusive and unnecessary requirements remained. For example, Doe had to tell Hourigan if she was leaving town for longer than a week. Unable to practice law, Doe taught civics, safety, and sewing to refugees. Meanwhile, the Bar Bureaucracy ordered her to appear for a formal hearing, at Doe’s expense, to show cause for allegedly violating the consent agreement. The Bar Bureaucracy’s lawyer, Elizabeth Feamster, demanded even more documents, as well as the contact information for Doe’s employer.

 

Recall that on the record before us, Doe had been licensed by Florida for the past eleven years — and had practiced there for the first nine of those years — and remained in good standing that whole time.30

 

A year later, in 2018, Doe successfully completed Florida’s monitoring program. Her doctor wrote yet another letter to the Bar Bureaucracy saying he still “had no concerns regarding her mental health and encouraged her to continue practicing law.”31 29 Id. ¶ 76. 30 Id. ¶ 18. 31 Id. ¶ 92. Case 3:19-cv-00236-JRW Document 43 Filed 08/28/20 Page 8 of 18 PageID #: 652 9 In July 2018, the Bar Bureaucracy held another hearing. Again, they interrogated Doe about her disability. After the hearing, Feamster demanded still more information about Doe’s medical treatment. And yet again, Doe told the Bar Bureaucracy that they were violating the Americans with Disabilities Act. Finally, in August 2018, Doe was unconditionally admitted to practice law in Kentucky. Her bar file still contains protected health information and show cause orders suggesting that “her disability and treatment [are] character and professional flaws.”32 In 2019, Doe filed this suit against the Bar Bureaucracy for violating the Americans with Disabilities Act, the Rehabilitation Act, and the Equal Protection Clause.33 She also sued under Kentucky law for defamation and intentional infliction of emotional distress.34

 

III

Court’s Reasoning Standing

 

  1. For injunctive relief plaintiff wants the bar bureaucracy to remove the show cause orders and the medical information in her records from her file. However, plaintiff has not alleged any harm that may result from the allegedly tainted file nor has she shown that any injury is certainly impending.
  2. If the plaintiff avoids any disciplinary issues in Kentucky, the file may never come into play.
  3. While it is conceivable that her file could be used at some point for some other purpose, any future injury is speculative or tenuous. So, plaintiff has no standing to seek injunctive relief.
  4. With respect to standing for the federal claims against the office of bar admissions, the Kentucky Board of Bar Examiners, the Kentucky Bar Association, the Kentucky Lawyer Assistant Program entities, and Yvette Hourigan in her official capacities, no causal connection between plaintiff’s injuries and defendants exist. They did not block her from practicing law simply because they didn’t have the power to do so.
  5. Although the character and fitness committee is a division of the office of bar admissions, the office of bar admissions doesn’t actually make any final decisions.
  6. Plaintiff does have standing with respect to her federal law damages claims against the Supreme Court of Kentucky and the character and fitness committee because: 1) both had the power to and did decide to ask her about her mental health; 2) both had the power to and did deny her an unconditional license for over two years; 3) both had the power to and did impose administrative and financial burden on her that they did not impose on other applicants; 4) all these injuries are fairly traceable to the Kentucky Supreme Court and the character and fitness committee; and 5) a damages decision in plaintiff’s favor would redress these injuries.
  7. Plaintiff has standing to sue both Hourigan and Feamster for defamation and intentional infliction of emotional distress.

 

IV

Court’s Reasoning Rooker-Feldman/Immunities

 

  1. Feldman explicitly says that a court has subject matter jurisdiction over general challenges to State Bar rules promulgated by state courts in non-judicial proceedings that do not require review of a final state court judgment in a particular case. Here, plaintiff challenges Kentucky’s bar rules, including its licensing and bar admission system. So, Rooker-Feldman argument fails.
  2. A state can waive sovereign immunity. Here, defendants raised sovereign immunity in their motion to dismiss and at oral argument, however they expressly declined to raise it as a threshold defense. So, sovereign immunity is waived.
  3. The Sixth Circuit has held that the nature of the function in determining qualification for admission to the bar is a judicial act. Therefore, absolute immunity protected the Supreme Court of Kentucky and the character and fitness committee.
  4. Legislative immunity says the Sixth Circuit protects the Supreme Court of Kentucky from a challenge to its promulgation of bar admission rules, including the rules requiring the character and fitness committee to interrogate applicants about their mental health. The Sixth Circuit has also applied legislative immunity to block suits challenging how a state Supreme Court and its delegates promulgate rules about who gets to become a lawyer.
  5. A plaintiff can sue for a prospective relief, i.e. a declaration that questions violate federal law and an injunction prohibiting the bar bureaucracy from asking them if the plaintiff was a bar applicant and not one unconditionally licensed like the plaintiff was when she filed the suit.

 

V

Judge Walker Wraps It up (Taken Directly from the Opinion)

 

Law school is hard. The stress, rigor, and competition can lead to depression, anxiety, and substance abuse. Many students who start school healthy are far from it by the time they graduate. Some kill themselves.  Aspiring lawyer should seek the healthcare they need. But if Kentucky continues to punish people who get help, many won’t. And one day, a law student will die after choosing self-help over medical care because he worried a character and fitness committee we do that medical treatment against them-as Kentucky’s did against Jane Doe. It is not a matter of if, but when.

 

VI

Thoughts/Takeaways

 

  1. I can’t recall ever seeing a federal judge call out ableism like this before. I can tell you that much the same and even more so is happening with respect to medical licensing boards and the PHP’s. True, this is a motion to dismiss and the court was obligated to take the allegations as true. However, I have seen plenty of fact patterns very similar to this in the course of my practice. Also, plaintiff loses. So, much of what he says is dicta. Even so, what he says is very powerful. Already, Law 360 reported here192120 (subscription required), that both Matthew Dietz and Disability Rights Florida filed this decision with the State of Florida as part of their successful efforts to get the Florida Supreme Court to no longer treat members with a history of drug, alcohol or psychological issues as a separate class of conditionally admitted members.
  2. The Supreme Court currently has before it a petition for cert. challenging an Illinois Supreme Court decision with respect to an applicant with MH issues. One of the things mentioned in that petition is the problems the Rooker-Feldman doctrine presents. This case presents an opportunity to show how that doctrine does not apply. I wonder if the attorneys in that case representing the bar applicant won’t alert the Supreme Court to Judge Walker’s opinion.
  3. If judicial and legislative immunity can somehow be circumvented, sovereign immunity would get very complicated. One wonders where practicing law would fall with respect to the equal protection tiers.
  4. Judge Walker is now on the District of Columbia Circuit. It will be interesting to see how he goes about deciding §§501, 504 of the Rehabilitation Act cases. Since the ADA does not apply to the federal government but the Rehabilitation Act does, he is probably more likely to decide Rehabilitation Act cases than ADA cases while he is on the DC circuit.
  5. The efforts of Matthew Dietz and Disability Rights Florida before the Florida bar also resulted in a new rule saying that all costs associated with monitoring unless otherwise required by law are to be paid by a member who was admitted pursuant to a consent agreement. The “unless otherwise required by law,” language is new. What it allows for is the waving of making the applicant pay the costs associated with monitoring. Such a waiver makes sense because without such a waiver an argument exist that you are making the applicant with a disability pay for their own reasonable modifications/accommodations, which is not something that can be done. See this blog entry176175189190120121 for example.
  6. At Judge Walker notes, several federal and state courts have held that the ADA prohibits the bar bureaucracy from unnecessarily interrogating applicants about their mental health.
  7. The DOJ has also brought the hammer down on the State Bar of Louisiana, as we discussed here177176190191121122, for their practices with respect to applicants with mental health conditions. According to the DOJ, asking applicants about their mental health status makes aspiring lawyers less fit to practice law because they likely deter applicant from seeking counseling and treatment for mental health concerns.
  8. With respect to sovereign immunity needing to be raised as a threshold defense, check your jurisdiction on that as there are many cases saying sovereign immunity can be raised at any time.
  9. Definitely look for plaintiff lawyers and disability rights activists to spread judge Walker’s decision far and wide. What happened in Kentucky is not unusual at all for either bar applicant’s or for medical professional thrown into the PHP system by medical licensing boards.

Today’s case is an unpublished decision out of the Northern District of Texas that has potential to be a real sleeper. That is, one of the things that the medical licensing boards and the PHP’s are doing are claiming that ensuring physicians with disabilities are not allowed to practice or can only practice with restrictions is a matter of public safety. Of course, it doesn’t work that way. The question is whether the physician is a direct threat to others with respect to matters involving the medical licensing board or the PHP. If a physician’s employer is an entity of 15 or more, then the issue is whether the physician is a direct threat to self or others. So, the case of the day is important because it talks about the burden of proof when it comes to direct threat cases where the employee is engaged in a job that very much affects the safety of others. The case is Goode v. BNSF Railway, Inc., here207189, an unpublished decision decided by the Northern District of Texas on March 20, 2020. As usual, the blog is divided into categories and they are: facts; court’s reasoning whether plaintiff was a qualified person with a disability; court’s reasoning burden of proof in direct threat cases; court’s reasoning direct threat existed as a matter of law; and thoughts/takeaways. The reader is free to focus on any or all of the categories.

 

I

Facts

 

In 1998, plaintiff Cody Goode was diagnosed with dilated cardiomyopathy. As a result, in 2003, he had a single device containing both a pacemaker and an implantable cardioverterdefibrillator (“ICD”) inserted into his chest. The ICD is a device placed in the chest to reduce the risk of dying if the lower chamber of the heart goes into a dangerous rhythm and stops beating effectively. Essentially, the ICD shocks the heart back into a normal heart rhythm if it goes into cardiac arrest.

 

In 2006, Goode applied for a conductor position with BNSF. This position is one of several jobs within the “train-service category,” which includes the positions of conductor, switchman, and brakeman. The position involves working on a train in over-the-road trips as well as working in a rail yard. Additionally, under BNSF’s labor agreements, train-service employees are also required to become locomotive engineers, who “are responsible for the operation of trains, including those that carry hazardous materials.” After being interviewed, Goode was offered a train-service position conditioned upon his successful completion of a post-offer medical evaluation.

 

CHS was permitted to medically qualify an applicant if he disclosed that he had cardiomyopathy and a pacemaker alone. But for other conditions, CHS was supposed to forward the applicant’s information to MEH.

 

On his questionnaire, Goode indicated that he had a pacemaker installed in 2003, but he did not disclose on the questionnaire that his device also included an ICD. CHS’s clinical notes indicate that Goode told the nurse he had a pacemaker, but they do not reflect that Goode mentioned his device also included an ICD. Indeed, Goode cannot recall whether he specifically told the person conducting his medical evaluation that he had an ICD. But Goode was asked to, and he did provide additional medical records from his cardiologist to CHS. Those records included a “certificate to return to work” signed by his cardiologist indicating that Goode was “ok from a cardiac standpoint to work w/ a pacemaker in a safety-sensitive situation.” Additionally, the records reflect that Goode’s device included an ICD. Nevertheless, CHS cleared Goode for hire in the conductor position. Goode worked in the train-service category as a conductor, brakeman, and switchman without incident from 2006 to 2009, when he was furloughed. On April 7, 2010, BNSF sent him a letter recalling him to active service. In connection with this recall, Goode informed MEH that he had an ICD. Dr. Sharon Clark, a Field Medical Officer in MEH, reviewed Goode’s medical records to determine whether he could perform the essential functions of his train-service position with the ICD. Dr. Clark concluded that he could not safely do so. As a result, BNSF arranged for Goode to take the Dispatcher Aptitude Test, which he passed, and attend Dispatcher training in January 2011. Goode has been working as a dispatcher for BNSF since then.

 

II

Court’s Reasoning Whether Plaintiff was a Qualified Person with a Disability

 

  1. To be qualified, an employee must be able to perform with or without reasonable accommodations the essential functions of his position in spite of his disability (“in spite of his disability,” are the words actually used by the court).
  2. The employer pointed out that train service employees frequently work around or on heavy moving equipment or between a set of railroad tracks based as narrowly as 36 inches apart.
  3. A routine part of a conductor’s job is riding on the side of a moving railcar while holding a ladder.
  4. A conductor wears a remote control belt that actually moves trains in the railyard without the help of an engineer.
  5. Train service employees are also required to be able to perform the role of locomotive engineers who are responsible for the operation of trains, including those carrying hazardous materials.
  6. No other individuals with an ICD have knowingly been permitted by the employer’s medical people to work as a train service employee.
  7. Plaintiff admitted in his deposition that if his ICD shocked him while performing as a conductor, he would present a safety risk at least to himself.

 

III

Court’s Reasoning Direct Threat Burden of Proof

 

  1. Direct threat appears in a section labeled defenses, 42 U.S.C. §12113(a).168119119190
  2. The Fifth Circuit has declined to specifically decide which party has the burden of proof when it comes to direct threat.
  3. The 10th Circuit has concluded that although the existence of a direct threat is generally a defense to be proved by the employer, an exception exists where the essential job duties necessarily implicate the safety of others. In that situation, the burden may be on the plaintiff to show that he or she can perform those functions without endangering others.
  4. The 10th Circuit relied upon a Fifth Circuit case from 2000 saying that the burden may be on the plaintiff to show that he or she can perform those functions without endangering others where the job duties necessarily implicate the safety of others.
  5. Since many of the essential functions of a train service employee implicate the safety of both the employee and others, the plaintiff must prove that he is not a direct threat as part of his prima facie case.

IV

Court’s Reasoning That Direct Threat Exist As a Matter of Law

 

  1. Whether an employer has properly determined that a person poses a direct threat depends upon the objective reasonableness of the employer’s actions.
  2. Citing to Chevron v. Echazabal, which we discussed here169120120191, the direct threat defense must be based upon a reasonable medical judgment relying on the most current medical knowledge and/or the best available objective evidence and upon an individualized assessment of the individual’s present ability to safely perform the essential functions of the job.
  3. In determining direct threat, the court looks at: the nature of the risk, duration of the risk, the severity of the risk, and the probability that the potential harm will occur. If the threatened harm is grievous, even a small risk may be significant.
  4. The issue isn’t whether the employer is correct about the risk the employee poses, but instead whether the employer’s decision was objectively reasonable based upon the information it had before it.
  5. The law only requires that an employer rely on the objectively reasonable opinion rather than an opinion that is actually correct.
  6. If plaintiff were acting as an engineer and transporting hazardous materials at the time his ICD fired, the risk to himself, his fellow employees, and the general public could be great. So while the probability and duration of the risk caused by his ICD firing might be low, the nature and severity of the risk when he collapses as a result of the firing of the ICD is potentially catastrophic.
  7. Plaintiff presented no contrary evidence demonstrating that the conclusion of the doctors was incorrect, much less objectively unreasonable.

 

V

Takeaways

 

  1. I am a bit surprised that this case was not appealed. Looking at the docket for the case, the deadline for appealing has passed. I did see that plaintiff was taxed costs of $2235 and some change.
  2. I don’t argue the points made by the court with respect to direct threat existing as a matter of law, which may be the reason why the case was not appealed.
  3. I do think that it is not a foregone conclusion that the burden of proof in direct threat cases falls upon the plaintiff in some situations, such as public safety. After all if that is true, then why does direct threat appear in the ADA under defenses?
  4. Whether a person is a qualified individual with a disability depends upon whether they can perform the essential functions of the job with or without reasonable accommodations assuming they meet the necessary experience, training, etc. for the position in the first place. The term “in spite of his disability,” is jarring to say the least. The issue is whether the person meets the requirement for the position and whether they can perform the essential functions of the job with or without reasonable accommodations. The issue is also whether they have a disability in the first place. Whether any of this takes place in spite of their disability is simply not the issue and is not correct.
  5. The reason this case is a big sleeper if it stands as it goes through the courts is because in the world of medical licensing boards and physician health programs, which we discussed here170121121192, one of the common things that is argued by medical licensing boards and physician health programs is that what a physician does necessarily implicates the safety of others. So, this would mean whenever a healthcare professional is being subject to medical licensure board proceedings or to physician health program proceedings, the question of direct threat would be placed squarely on the physician under this decision and not upon the medical licensing board, the physician health program, or even the physician’s employer.
  6. Regardless of the burden of proof of direct threat, direct threat is still the consideration and not some amorphous, “public safety” concept.
  7. Interesting note, the 10th Circuit case relied upon by the court, Jarvis v. Potter171122122193, had Justice Gorsuch on its panel, though he did not write the decision, and the decision was unanimous.

 

Today’s blog entry deals with a very common scenario. It works this way. Person goes on FMLA leave. FMLA leave is for 12 weeks. Employers can require employees to exhaust sick and vacation time as part of that leave. After that, the employee is on unpaid leave. When the leave is over the employee gets his or her job back or an equivalent job if at all possible. A company can insist on a certification process with respect to taking the leave and coming back from the leave. With respect to coming back from the leave, the certification process would include assessing whether the employee can perform the essential functions of the job. Very importantly, that assessment does not include whether they can perform the essential functions of the job with or without reasonable accommodations. Accordingly, what you see quite a bit of is the employee asking for leave pursuant to the ADA after the FMLA leave has expired. Since the ADA amendments has broadened just who is covered by the ADA, many people can justifiably claim they have a disability and ask for the reasonable accommodation of additional leave beyond the FMLA leave. All this said, that doesn’t answer the question as to what is a reasonable amount of leave. The majority rule is that if the employee can give the employer a definite time when they will come back and be able to do the essential functions of the job with or without reasonable accommodations, then the additional leave is in order. In the Seventh Circuit, as we discussed here, just about any additional leave is not reasonable. Now, the Ninth Circuit, in a case Eric Meyer alerted me to because I subscribe to his blog, has come up with a different approach. The case is Kachur v. NAV-LVH, an unpublished decision decided by the Ninth Circuit on June 8, 2020. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning; and thoughts/takeaways. Since this is such a short blog entry for me, I am figuring that the reader is going to want to read the whole thing. If the reader does not want to read the whole thing, I definitely recommend reading the thoughts/takeaways section.

 

I

Facts

Plaintiff underwent knee surgery and kept the defendant abreast of his recovery progress on a monthly basis after he exhausted his FMLA leave. At the time of termination, plaintiff had requested an additional four weeks of leave on top of the 16 weeks previously granted. Plaintiff estimated treatment schedule involved monthly appointment for 3 to 4 visits. Plaintiff’s physician also provided deposition testimony regarding the indeterminacy of the healing process following the surgery.

 

II

Court’s Reasoning

 

  1. The ADA does not require an employee to show that a leave of absence is certain or even likely to be successful to prove that it is a reasonable accommodation. Rather, an employee only needs to satisfy the minimal requirement that a leave of absence could plausibly enable him to adequately perform his job.
  2. The Ninth Circuit has never recognized an accommodation that fails to provide a date certain for returning to work is per se unreasonable.
  3. Viewing the evidence in the light most favorable to the plaintiff, there appears to be a genuine dispute of material fact regarding whether his request for an extension of his unpaid leave was a reasonable accommodation.
  4. The updates plaintiff provided to his employer as to his recovery progress can easily be understood as estimates of when he could be expected to return to work. Further, the request of an additional four weeks of leave seems facially reasonable.
  5. On remand, the district court has to consider first whether plaintiff’s additional leave request would pose an undue hardship on his employer.
  6. In a footnote, the court noted that it had stated previously that recovery time of unspecified duration may not be a reasonable accommodation (primarily where the employee will not be able to return to his former position and cannot state when and under what conditions he could return to work at all). However, that statement is not a declaration that recovery time of unspecified duration is not a reasonable accommodation.

 

III

Thoughts/Takeaways

 

  1. We most definitely have a Circuit Court split now. So, it is only a matter of time before the United States Supreme Court takes this up. The Circuit Court split essentially involves three possibilities: 1) the Seventh Circuit view, which we discussed here, that any leave beyond the FMLA leave is just about always unreasonable; 2) the Ninth Circuit view that it always comes down to undue hardship, whether it be logistical undue hardship (i.e. fundamental alteration), or financial undue hardship; 3) the view of many courts that a date certain must be given by the employee, and then it comes down to whether a logistical undue hardship or a financial undue hardship exist. Predicting what the United States Supreme Court will do in this situation is a complete guess. Generally speaking, people with disabilities have not fared well at the Supreme Court in employment matters. However, the Seventh Circuit view seems a bit extreme. On the other hand, the Ninth Circuit view presents a problem for businesses because it leaves them with a lot of uncertainty with respect to staffing their businesses. The middle ground, which is a date certain balanced against undue hardship seems to me to make the most sense.
  2. You have to drill down into the facts a bit in terms of the phrasing used by the court to realize that the plaintiff in this case took 12 weeks of FMLA leave and then the employer granted an additional four weeks on top of that, presumably as a reasonable accommodation under the ADA. At the time of termination, plaintiff had requested an additional four weeks of leave, but it was not a hard return date.
  3. In checking the docket for this case, it is now back in the District Court and the employer has filed a summary judgment motion.
  4. So, what is an employer to do? First, check your jurisdiction. As mentioned above, there are three possibilities as to how jurisdictions might handle this question.
  5. If on the employer side, it helps if you can show that the extended absence presents a logistical undue hardship for the business. In some situations, it may present a financial undue hardship, though that will probably be harder to show.
  6. Even in a jurisdiction where an uncertain date of return is allowable, an employer still has the ability to show that the uncertain date of return presents an undue hardship.
  7. This isn’t really something that Congress would likely get involved in fixing. So, this will eventually head to the Supreme Court for resolution. When it does, the Supreme Court will be faced with three possible choices. Uncertain date of return and almost any leave beyond FMLA not being reasonable are extreme positions. The Supreme Court often likes to look for a sensible middle ground. As I mentioned previously, absolutely anybody’s guess as to what the Supreme Court will decide. So, look for cases to take on any of the three categories before the Supreme Court gets to it. My guess is that most cases will come down on the majority rule and some will come down on the Ninth Circuit approach. Hard to believe the Seventh Circuit approach will be that persuasive, but you never know.
  8. Underlying all of this is whether attendance is an essential function of the job. For determining that question, my go to is this blog entry. That said, Covid-19 and a tremendous amount of people moving to remote work has definitely changed the calculus as to whether attendance is always or just about always an essential function of the job.