Before getting started on the blog entry of the week, I want to congratulate the Stanford Cardinal and the Baylor Bears for winning the women’s and men’s NCAA Division I basketball titles.

 

It is interesting how my decision on to what to blog on works from week to week. Sometimes I have a bunch of cases in my pipeline and sometimes I don’t. Also, sometimes I can’t get to my pipeline because of breaking developments. This is one of those situations where I have a bunch of cases in my pipeline but there was a breaking development. In particular, the 11th Circuit on April 7, 2021 came down with a published opinion in the Internet accessibility case of Gil v. Winn-Dixie stores, Inc., here185188214213215217217. I previously blogged on the District Court opinion here186189215214216218218. The title for the blog entry (I am a huge Star Trek fan), is intentional because the 11th Circuit has boldly gone where no one has gone before so to speak. As usual, the blog entry is divided into categories and they are: where we have been with respect to Internet accessibility cases; majority opinion introductory facts and standing; majority opinion websites are not places of public accommodation; majority opinion Winn-Dixie website does not otherwise violate title III; dissenting opinion ADA generally; dissenting opinion accommodation necessary; dissenting opinion services, privileges, and advantages of the place of public accommodation are involved; dissenting opinion effective communication obligations were violated; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Where We Have Been with Respect to Internet Accessibility Cases

 

Until April 7, 2021, the Internet accessibility cases broke down into four categories, which we have discussed in our blog before. Those categories were: 1) title III only applies to physical places (Access Now, which was overruled by DOT regulations discussed here187190216215217219219); 2) title III applies even where there is a lack of a physical space (Doe, 7th Circuit, Carparts, 1st Circuit); 3) title III applies to Internet sites if the Internet site is a gateway to a brick-and-mortar store (Cullen, 9th Circuit, which we discussed in a comment to the Cullen oral argument blog entry here188191217216218220220); 4) title III applies to Internet sites if it is of the type of what is going on in 42 U.S.C. §12181(7) (a reasonable interpretation of South Dakota v. Wayfair, which we discussed here189192218217219221221, DOJ amicus brief in MaGee v. Coca-Cola, which we discussed here190193219218220222222). The trend had been gateway cases but the betting line was on “of the type,” in light of South Dakota v. Wayfair. Now, it turns out that the 11th Circuit decided to go with a completely different approach. So, we now have a fifth category, which I am calling the ADA never applies to Internet sites but that isn’t the question needing consideration. Also, by way of full disclosure I know attorneys on both sides of this case, though I am not involved with the case on either side.

 

II

Majority Opinion (Judge Branch),  Introductory Facts and Standing

 

  1. The focus of the case is on refilling prescriptions and on accessing store coupons. The majority opinion ignores the store locator issue, but it does get a mention in the dissenting opinion.
  2. In a footnote, the 11th Circuit noted that the parties agreed in their joint pretrial stipulation that Winn-Dixie’s website was not designed specifically to integrate with screen reader software.
  3. In a footnote, the court said plaintiff’s claims essentially boil down to Winn-Dixie violating title III of the ADA because it discriminated against him on account of his visual disability by failing to provide auxiliary aids and services to make its website accessible with screen reader software so that he could not fully and equally enjoying the goods, services, privileges, or advantages of Winn-Dixie per 42 USC §§12182191194220219221223223(a),(b)(2)(A)(iii).
  4. Plaintiff’s allegations that he suffered an injury both when he was unable to avail himself of the goods and services on the website as well as when the website interfered with his ability to equally enjoy the goods and services of Winn-Dixie’s doors were a concrete and particularized injury that would continue if the website remains inaccessible. Therefore, plaintiff has standing.

 

III

Majority Opinion Websites Are Not Places of Public Accommodations

 

  1. 42 U.S.C. §12182192195221220222224224(a) provides that, “no individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation (emphasis in court’s opinion), by any person who owns, leases (or leases to), or operates a place of public accommodation.”
  2. 42 U.S.C. §12181193196222221223225225(7) lists the categories of what places of public accommodations are. That section of the ADA is an expansive list of physical locations that are public accommodations, including in subsection F a grocery store. The list covers most physical locations that individuals will find themselves in their daily lives. However, the list does not include websites.
  3. Of the 12 types of locations that are public accommodations, all of them are tangible, physical places. No intangible places or spaces, such as websites, are listed. Therefore, public accommodations are limited to actual physical places (in a footnote, the court noted that the First Circuit, and the Seventh Circuit have taken different views).

IV

Majority Opinion Winn-Dixie’s Website Does Not Otherwise Violate Title III

 

  1. Title III of the ADA at §§42 U.S.C. §12182194197223222224226226(b)(2)(A)(iv), (b)(2)(A)(iii), applies to both tangible barriers, physical and architectural barriers that prevent a person with a disability from entering an accommodation’s facility and accessing its goods, services and privileges, as well as intangible barriers, such as eligibility requirements and screening rules or discriminatory policies and procedures respecting a person with a disability ability to enjoy the defendant entity’s goods, services, and privileges.
  2. Winn-Dixie’s limited use website, although inaccessible by individuals who are visually disabled, does not function as an intangible barrier to an individual with a visual disability accessing the goods, services, privileges, or advantages of Winn-Dixie’s physical stores because Winn-Dixie’s website only has limited functionality. That is, it is not a point-of-sale and all purchases must occur at the store. Furthermore, all interaction with Winn-Dixie that can be initiated on the website must be completed in store.
  3. Nothing prevents the plaintiff from shopping at the physical store and he had done so for many years before he freely chose to stop shopping there. Although the plaintiff was not always happy with the speed or privacy of the service he received at the pharmacy when he physically shopped there, nothing prevented the plaintiff from refilling his prescriptions during his time as a Winn-Dixie customer. For years, plaintiff used paper coupons at Winn-Dixie’s stores despite any inconveniences such use entailed.
  4. A website itself is not a place of public accommodation. Accordingly, plaintiff’s mere inability to communicate with and accept the services available on the website does not necessarily mean that Winn-Dixie is violating the ADA. Instead, for there to be an ADA violation the inaccessibility of the website must serve as an intangible barrier to plaintiff’s ability to communicate with Winn-Dixie’s physical stores, which results in plaintiff being excluded, denied services, segregated, or otherwise treated differently from other individuals in the physical stores.
  5. While plaintiff asserted that he could not comprehend the website in an effective manner due to the absence of an auxiliary aid, plaintiff never asserted that he would not able to communicate effectively with, or access the services offered in, the physical stores.
  6. For 15 years, plaintiff fully and equally enjoyed the services in question of filling prescriptions and using coupon in Winn-Dixie’s physical stores.
  7. As a footnote, the court said the following: title III of the ADA only applies to tangible physical spaces; title III of the ADA does apply to intangible barriers that serve to restrict an individual with a disability access to goods, services, and privileges of a place of public accommodation; and title III of the ADA may be violated if a place of public accommodation excludes, denies services, segregates, or otherwise treats a person with a disability differently than other individuals because of the absence of auxiliary aids.
  8. The 11th Circuit had never adopted the Gateway approach of other Circuits and declines to do so here.
  9. Saying that the website constitutes a service, privilege, or advantage and that the failure of a person with the disability to be able to access that website’s content violates the ADA because they are not receiving a comparable or like experience to those of customers without visual disabilities proves too much. Under that approach, virtually anything, tangible or intangible, could be deemed a service, privilege, or advantage. From reading the text of title III with a view to its overall statutory scheme, title III cannot be interpreted in such a broad way.
  10. In a footnote, the court said that the plaintiff was no less at a disadvantage than a sighted customer lacking Internet access and therefore could not access the streamlined online prescription refill process. Also, the ADA does not mandate that in order to have full and equal enjoyment of Winn-Dixie’s physical stores goods and services, visually disabled customers must be afforded the virtually identical experience to those of sighted customers. Such a reading of title III is plainly unrealistic because it makes an unattainable demand.
  11. Title III of the ADA does provide that auxiliary aids and services are a reasonable accommodation. However, that accommodation must also be per 42 U.S.C. §12182195198224223225227227(b)(2)(A)(iii), necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids.
  12. In a footnote, the court noted that the requirement that an auxiliary aid or service be necessary came from dicta in from the PGA Tour v. Martin196199225224226228228 case decided by the Supreme Court. However, dicta from Supreme Court cases is not something to be lightly cast aside and at a minimum is of considerable persuasive value. It is not unusual at all to afford substantial, if not controlling deference to dicta from the United States Supreme Court because respect for the rule of law demands nothing else.
  13. Plaintiff is able to enjoy fully and equally the goods, services, facilities, privileges, advantages, or combinations of Winn-Dixie’s physical stores as contemplated by title III of the ADA.
  14. The United States constitutional structure does not permit the court to rewrite the statute that Congress has enacted. Accordingly absent congressional action broadening the definition of places of public accommodation to include website, ADA liability cannot be extended to the facts presented in this case where no barrier to the access demanded by the statute exists.

V

Dissenting Opinion (Judge Jill Pryor), ADA Generally

 

  1. It is undisputed that Winn-Dixie’s website is incompatible with screen reading technology.
  2. Inferior treatment amounts to disability discrimination under title III by the operator of the place of public accommodation.
  3. Winn-Dixie does not dispute that it failed to provide an auxiliary aid when it refused to make its website compatible with screen reading technology. They also provided no alternative way for a person with a visual disability to request the express prescription refills or digitally link the coupons to the rewards cards so that discounts could be applied seamlessly and check out, which are privileges and advantages enjoyed by sighted customers.
  4. In a footnote, the dissent agrees with the majority opinion that websites in and of themselves are not places of public accommodations under the ADA. The dissent goes on to note that the District Court twice declined to reach that issue and plaintiff denied he was discussing that issue in his arguments. Accordingly, whether Internet sites are places of public accommodation by themselves should not have been an issue that the court addressed at all.
  5. The ADA’s guarantee of freedom from discrimination for persons with disabilities is broad because it prohibits places of public accommodation from denying people with disabilities the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodations.
  6. The ADA at 42 U.S.C. §12182197200226225227229229(b)(2)(A)(iii) also protects people with disabilities from being treated differently. Here, Winn-Dixie affords favorable treatment to sighted customers who could take advantage of their Internet site in a way that their customers without sight could not.
  7. For plaintiff to use coupons at Winn-Dixie, it required him to ask a friend to read the coupon to him from a newspaper or request the help of Winn-Dixie employees. Employees were sometimes annoyed by his requests for help.
  8. Through the website’s prescription feature, sighted customers in the privacy of their own home could request refills in advance and then pick up the medication at the store when ready. They also could transfer a prescription to be filled at a different Winn-Dixie store. Plaintiff sought to use that feature because it would afford him greater independence, convenience, and privacy, by allowing him to obtain prescription refills without having to disclose his medical information where others could overhear.
  9. By using the website’s coupon feature, sighted customers could click on manufacturers coupon displayed on the website to link their coupon to their customer rewards cards. That way, when the customer shopped and scanned his reward card the coupon discount was applied automatically to his order. In fact, the website tool was the only way a customer could link a coupon to his reward cards for automatic application at checkout at Winn-Dixie stores. Using that feature would give the plaintiff greater independence by making it possible for him to find and use coupons without having to ask friends or store employees for help. On these issues, the District Court found the plaintiff’s testimony highly credible.
  10. The purpose of the ADA at 42 U.S.C. §12101198201227226228230230(a)(7) is to ensure full participation, independent living, and economic self-sufficiency for persons with disabilities.
  11. The ADA at 42 U.S.C. §12182199202228227229231231(b)(2)(A)(iii) requires places of public accommodations to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated, or otherwise treated differently from other individuals because of the absence of auxiliary aids and services unless a fundamental alteration or an undue burden exists.
  12. Plaintiff is clearly a person with a disability under the ADA.
  13. Winn-Dixie’s physical stores are places of public accommodations under the ADA.
  14. Plaintiff’s screen reading software is an auxiliary aid and service, 28 C.F.R. §36.303200203229228230232232, under the ADA.
  15. Winn-Dixie raised no argument that making its website accessible to visually impaired individuals would fundamentally alter its operations or result in an undue burden.

 

VI

Dissenting Opinion Accommodation Is Necessary

 

  1. To determine whether accommodation is necessary under title III of the ADA, you have to look at how the public accommodation’s offering are used by customers without disabilities and then ask whether the operator of the public accommodation has provided its customers with disabilities with a like experience and equal enjoyment.
  2. If the operator of a public accommodation has failed to provide customers with disabilities with an experience comparable to that of customers without disabilities, then an accommodation is necessary.
  3. Visually impaired customers had to request prescription refills inside Winn-Dixie stores. The customer had to go to the store and wait in line to speak to a pharmacist. After waiting in line, the customer may have had to verbally request medication by name in a public setting where other customers might overhear. Once the refill was requested, the pharmacy had to take certain steps required by state law before dispensing the prescription. In addition, pharmacy employees had to determine whether the customer had a prescription drug benefit plan covering the refill and how much the customer should be charged. Such a process might involve a wait time of 20 to 30 minutes until the refill was ready. On the other hand, a sighted customer submitting an online prescription refill request through Winn-Dixie’s website was offered a streamlined, faster process offering greater privacy. By using the Winn-Dixie’s website, sighted customers can avoid verbally requesting the refill at the in person store. Finally, by taking advantage of the Internet prescription refill option, a sighted customer would save a great deal of time when they showed up to pick up the medication and such time-saving was noted on the Winn-Dixie website.
  4. Nothing in the record suggested that Winn-Dixie offered customers any means other than its website to request prescription refills in advance of arriving at the physical store.
  5. After comparing the experiences of Winn-Dixie’s disabled customers to customers without disabilities regarding express prescription refills, the dissent cannot understand how the majority could possibly conclude that customers with disabilities, such as the plaintiff, were offered equal treatment and like experience.
  6. A visually impaired customer wanting to use manufacturer’s coupons to purchase items at a Winn-Dixie store had to page through a newspaper, magazine, or other print for coupons of products he wanted to purchase, clip the coupon, bring them to the store, and present them to a cashier at checkout while needing to ask for the help of another when he cannot perform those tasks himself. On the other hand, a sighted customer can simply visit the website, which centralizes manufacturer’s coupons, and digitally link the desired coupon to his account. When he scanned his customer reward card at checkout, the coupon discount were applied automatically to his order. Such a process failed to offer like treatment to customers with disabilities when compared to customers without disabilities. In fact, such a process privileges customers without disabilities by offering them a more convenient and effective way to obtain discounts inside Winn-Dixie stores.
  7. In a footnote, the dissent says that the dicta cited in PGA Tour v. Martin201204230229231233233 is of no help to the majority because it’s application turns upon how the situation is conceptualized.
  8. When a website’s store locator feature is inaccessible to visually impaired customers, which was the case here, plaintiff must gather the information elsewhere. The 11th Circuit has already said, in a case we previously discussed here202205231230232234234, that a store locator feature on a website that is inaccessible to visually impaired customers violates the ADA.
  9. Plaintiff could only enjoy markedly inferior versions when compared to persons without disabilities with respect to filling prescriptions and using coupons.

VII

Dissenting Opinion Goods, Services, Privileges, Advantages, of a Place of Public Accommodations Are Involved in This Case.

 

  1. The ADA prohibits discrimination in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or combinations of any place of public accommodation. 42 U.S.C. §12182203206232231233235235(a).
  2. The dictionary definition of “service,” is “useful labor that does not produce a tangible commodity.” A “privilege,” is “a right… granted as a peculiar benefit, advantage, or favor.” And “advantage,” is “a more favorable or improved position or condition.” Under the definition, Winn-Dixie offers services, privileges, and advantages when it empowers customers to request the express prescription refills and link coupons to their reward cards on their website.
  3. A service is provided when a customer requests a service provider to perform an activity, the service provider performs that activity, and the customer pays the service provider. For Winn-Dixie customers using the online prescription refill tool, a critical step in that process, actually requesting the service, occurred online. Therefore, it makes no sense for the majority to conceive of Winn-Dixie’s prescription service as completely unhooked from the website.
  4. The prescription refill and coupon linking tools are clearly privileges or advantages. Ordering express prescription refills from the privacy of one’s home and using the coupon linking tool improved the position of the Winn-Dixie customer. After all, that is precisely why Winn-Dixie provides its customers with those features.
  5. A plain meaning view of what a service, privilege, or advantages is not overly broad. Instead, it is perfectly consistent with a plain reading of title III of the ADA. Title III of the ADA clarifies that it not only bars discrimination occurring in places of public accommodation, but it also bars discrimination in the goods, services, facilities, privileges, advantages, or accommodation offered by places of public accommodations, such as Winn-Dixie stores.
  6. 42 U.S.C. §12182204207233232234236236(b)(2)(A)(iii) applies to the services OF a place of public accommodation and not to services IN a place of public accommodation.
  7. The ADA is a sweeping piece of legislation. So, it is hardly surprising that its provisions prohibiting discrimination are broad and inclusive. To interpret the ADA in any other manner offends not only the principle that term should be interpreted according to the ordinary meaning, but also offends fundamental canons of statutory construction that the words of the statute must be read in their contexts with a view to their place in the overall statutory scheme.
  8. In effect, the majority opinion’s conception of Winn-Dixie’s offering distorts the meaning of “services,” under the ADA and strikes the word “privileges” and “advantages” from it altogether.
  9. Plaintiff’s enjoyment of Winn-Dixie in-store prescription and coupon services was not full and equal but partial and lesser. Winn-Dixie’s sighted customer received greater protections and were also relieved of the need to wait in-store for pharmacists to refill their prescriptions. While Winn-Dixie’s sighted customer could collect coupons online and use them instantly at checkout, plaintiff was left defined in the sample physical coupons and present them by hand.
  10. In a footnote, the dissent said that the majority opinion’s concern about the dissent’s interpretation of service, privileges, and advantages being too sweeping, doesn’t wash. After all, places of public accommodations have the affirmative defenses of fundamental alteration or undue burden.
  11. In another footnote, the dissent notes that whether Winn-Dixie is required to have a website is irrelevant because federal antidiscrimination laws say if a website is offered it cannot be provided in a discriminatory manner. That same footnote goes on to say that the ADA requires the court to compare Winn-Dixie’s treatment of people without disabilities ready to enjoy its services to persons with disabilities ready to enjoy its services. It then must consider how the facility use by guests without disabilities compare to guests with disabilities to figure out whether a like experience exists. It doesn’t make any difference whether Winn-Dixie treated people without disabilities ready to enjoy it services like other individuals who because of their personal circumstances were not ready or did not want to enjoy it services.
  12. The majority citation of Rendon and Robles doesn’t apply to this situation because those cases held that a person can state a title III claim when inaccessible technology prevents them from accessing a public accommodation’s offering. Those cases did not consider whether a public accommodation might also violate the ADA when it offers an inaccessible website to visually impaired customers that serves as the only way for a customer to access indoor privileges or advantages.

 

VIII

 

Dissenting opinion Effective Communication Obligations Violated

 

  1. In a footnote, the dissent says the majority opinion is wrong in asserting that Rendon and Robles are distinct from this case in any legally significant way because the ADA prohibits discrimination that not only includes individuals with disabilities but also discrimination that treats people with disabilities differently and denies them the full and equal enjoyment of the offerings of the place of public accommodation.
  2. The argument that because the plaintiff was able to enjoy fully and equally the services in question, filling prescriptions and using coupons, there is no ADA liability doesn’t wash for several reasons. First, the services available on the website are not unhooked from the services offered by Winn-Dixie’s stores. Second, the website is a tool of communication that Winn-Dixie provided to convey information and receive information from customers. Accordingly it makes no sense for the majority opinion to say that plaintiff never asserted that he would not able to communicate effectively with the physical stores. Third, the website’s inaccessibility prevented plaintiff from accessing the information that Winn-Dixie was conveying to its sighted customers and it also prevented him from conveying information to Winn-Dixie.
  3. The majority opinion’s contention that plaintiff’s inability to access the website prevented him from communicating only with the website and not with the physical stores defies reality. That is, a customer’s ability to access a communication technology and his ability to communicate effectively with the store are causally related propositions. That is, plaintiff was unable to effectively communicate with Winn-Dixie’s stores precisely because he was unable to use their website.
  4. An auxiliary aid, such as screen reading software, was necessary to ensure effective communication between the plaintiff and Winn-Dixie’s physical stores. Winn-Dixie by failing to furnish that auxiliary aid or any alternative violated 28 C.F.R. §36.303205208234233235237237.
  5. In a footnote, the dissent agrees with the majority opinion to not utilize the gateway approach adopted by other Circuits. The dissent also agrees with the majority opinion that the question is whether a customer with a disability was precluded from fully and equally enjoying the offerings of a place of public accommodation.
  6. The majority opinion’s errors will have widespread consequences. Places of public accommodation, such as stores and restaurants, increasingly use websites and apps to offer their customers safer, more efficient, and more flexible access to goods and services and physical stores. As the dissent reads the majority opinion, stores and restaurants now have license to provide websites and apps that are inaccessible to visually impaired customers so long as those customers can access an inferior version of those offerings. Such a result cannot be squared with the ADA.

 

X

Thoughts/Takeaways

 

  1. This case is undoubtedly headed to the Supreme Court for two reasons. First, plaintiff lawyers have said that they are going to take it to the United States Supreme Court. Second, in the courts generally there is a five way split as to how to deal with these types of cases. There is a three way split in the Circuits alone (physical space not necessary to be covered by title III; gateway; and the 11th Circuit approach focusing on full and equal enjoyment of goods, services, and advantages). At the Supreme Court level, two critical cases will be South Dakota v. Wayfair, which we discussed here206209235234236238238, and Bostock v. Clayton County, which we discussed here207210236235237239239. South Dakota v. Wayfair will be a critical case because if you recall from our previous discussions, the Supreme Court stated in literally 23 different ways that a place could be something other than a physical space, albeit when it came to taxation. Bostock will be critical because of its holding that words mean exactly what they mean regardless of when the word was written into a particular piece of legislation. Therefore, in 2021, a place of public accommodation per South Dakota v. Wayfair does not need to be a physical place. Another critical piece will be 42 U.S.C. §12101208211237236238240240, the purpose clause of the ADA, which contains various reasons why the ADA should be construed broadly, such as its purpose being to ensure full participation, independent living, and economic self-sufficiency for persons with disabilities, among other items in that particular statutory section.
  2. The 11th Circuit went somewhere no one has otherwise gone before (with apologies to Star Trek). The particular approach taken by the 11th Circuit will be very hard for courts to apply in practice. At a minimum, you will need testimony talking about why a particular individual is not fully and equally enjoying the service, goods, or advantages of the place of public accommodations. You will also have a tremendous amount of litigation over whether a service, good, or advantage is even involved. Considering this type of standard, how a case goes may very well depend upon the particular judge’s personal familiarity with the disability world. That is, if the judge a person with a disability him or herself, identifies as having a disability, has a close friend with a disability, or has a family member with a disability. Considering the standard is full and equal enjoyment, such personal knowledge may make a huge difference in how these kinds of cases come out in the future, assuming this approach is the one that prevails.
  3. The dissenting opinion noted that third-party websites were also involved. Implicitly, though Judge Pryor did not say explicitly, she was saying that the ADA is a nondelegable duty, which we discussed here209212238237239241241.
  4. Title III talks about discrimination by any place OF public accommodation and NOT in a place of public accommodations.
  5. It is incorrect to say that 42 U.S.C. §12181210213239238240242242(7) are all tangible physical places. As noted by the First Circuit in Carparts, travel services have been run virtually for years and years and are listed in 42 U.S.C. §12181(7)(F).211214240239241243243
  6. After this decision, what is an intangible barrier is very unclear.
  7. An argument exists that this decision as well as some decisions interpreting the gateway decision requires persons with disabilities to actually use in-store services when persons without disabilities do not have to do that if they are to bring forth Internet accessibility claims.
  8. Very interesting that even the dissenting judge agreed that the website itself is not a place of public accommodation. The dissenting judge did not need to go that far in light of the decisions already on the books. It is also interesting that it seems that the plaintiff purposely as a matter of strategy tried to avoid the question of whether the Internet itself was a place of public accommodation.
  9. Just what is a “like experience,” is a very amorphous concept. It certainly does not mean identical. It does mean inferior, but what is inferior is going to vary quite a bit from judge to judge and depends upon the judge’s own disability awareness.
  10. Both the majority opinion and the dissenting opinion talk about how an auxiliary aid or service must also be necessary in addition to something that is not an undue burden or a fundamental alteration. What is interesting about the auxiliary aid or service here is that the individual already has the auxiliary aid or service, the screen reading software, but the problem is the place of public accommodation does not set itself up to allow that individual to use their auxiliary aid. Is that the same thing as a place of public accommodation providing an auxiliary aid or service?
  11. An often overlooked item when it comes to auxiliary aids and services is that the auxiliary aid and service might neither be a fundamental alteration or an undue burden but it also has to be necessary. This case makes it clear that the “necessary,” requirement is not something to be overlooked in the future.
  12. The dissent offers clarity as to what is a service, privilege, or advantage in 42 U.S.C. §12182(a).
  13. The case creates a lot of confusion about what an intangible barrier might be in the future.
  14. There is case law out there that says a service does not necessarily have to be one involving an exchange of money to be covered under the ADA.
  15. I agree with the dissent that this decision will make it much harder for persons with disability to prevail on their Internet accessibility claims, though the court does not create a high bar for standing. It is very unclear to me whether other Circuits will adopt this approach as it goes in a completely different direction than we have seen previously. Also, I think it likely that the Supreme Court will take this case up. What the Supreme Court will do is anybody’s guess. As I have mentioned before, people with disabilities have been very successful at the Supreme Court level outside of the employment context. For reasons mentioned in this blog entry, that success may continue with this case. If that success does continue, what we don’t know is how will the Supreme Court get there. Stay tuned. This will be a very very interesting case to follow.
my service animal while practicing virtually.

 

Before we get started on the blog of the week, I hope everybody had a happy Easter and a successful Passover. Also, there should be a really good men’s basketball game tonight. There was a really good women’s basketball game yesterday. I am assuming just about everybody’s bracket was busted in large part before tonight.

 

Turning to the case of the day, C.L. v. Del Amo Hospital, which can be found here185199208208206205, a published decision from the Ninth Circuit decided on March 30, 2021. It is one of the few cases that applies across the entire range of the ADA in one way or another. Since the ADA has several different titles with each having its own statutory provisions, regulations, interpretive guidances, and common law, there are not a lot of cases that apply across the board with the exception of those involving definitional matters. Even definitional matters are much less of a big deal than they used to be because of the amendments to the ADA. Our case of the day is one of those cases that applies across the board. It deals with the question of whether a covered entity can demand that a service animal either be certified by some entity or be professionally trained. For lots and lots of reasons, the Ninth Circuit says no to both questions. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning the ADA prohibits certification requirements for service dogs because the ADA defines a service dog in functional terms without reference to specific training requirements; court’s reasoning the ADA prohibits certification requirements for service dogs because DOJ has consistently rejected a formal certification requirement; court’s reasoning the ADA prohibits certification requirements for service dogs because allowing a person with a disability to self-training a service animal furthers the stated goals of the ADA; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

C.L. is a speech-language pathologist with a master’s degree in Speech and Language Pathology and a Ph.D. in Education. As a child, C.L. endured years of physical, psychological, and sexual abuse. She escaped her family’s abuse at age 17, but then experienced a 10-year abusive relationship before escaping and starting therapy in 1995. By 1996, she had been diagnosed with PTSD and DID, and started taking medication. Since then, C.L. has been diagnosed with anxiety and depression.

 

Plaintiff-Appellant C.L. (“C.L.”), who survived years of abuse at the hands of her family and a romantic partner, has been diagnosed with post-traumatic stress disorder (“PTSD”), dissociative identity disorder (“DID”), anxiety, and depression. As a result of these conditions, C.L. experiences hypervigilance, PTSD-related nightmares and flashbacks, severe anxiety in public spaces and while bathing, and has difficulty remaining focused and engaged in daily tasks. To mitigate the symptoms of her disability, C.L. obtained Aspen, a 16-pound bichon-poodle mix, intending Aspen to be her service dog. Because enrolling in a full training course to provide Aspen with formal certification was not a viable option for C.L., she began self-training Aspen to perform specific tasks she thought would ameliorate her disability and decrease her isolation.

Before and after obtaining Aspen, C.L. sought inpatient treatment at Defendant-Appellee Del Amo Hospital’s (“Del Amo”) National Treatment Center. When C.L. asked the Center if she could bring Aspen with her as her service dog, Del Amo denied Aspen admission, concluding that the dog’s presence would interfere with C.L.’s therapy. In the underlying suit, C.L. challenged Del Amo’s practice of denying admission to Aspen as a violation of Title III of the ADA and California’s Unruh Civil Rights Act. C.L. is undisputedly a person with a disability, and Del Amo is a place of public accommodation. After a bench trial, the district court determined that Aspen does not qualify as a service dog under the ADA.

C.L. began researching the possibility of obtaining a service dog. First, she purchased a book called Training Your Own Psychiatric Service Dog, by a service dog trainer named Katie Gonzalez, to help her understand the tasks performed by psychiatric service dogs and whether one could meet her needs. Katie Gonzalez is the director of Little Angels Service Dogs (“Little Angels”), a nonprofit service dog training organization. Gonzalez has trained service dogs, including psychiatric service dogs, for twenty years, and has published several books on training service dogs. Through her research, C.L. learned that because she was living on Supplemental Security Income, she could not afford to pay for a trained dog. A trained dog would cost at least $15,000.206207209209200186[1]8 C.L. conducted further research and conferred with a service dog training agency about what dog breed might best meet her needs.

In August 2013, C.L. obtained Aspen—a 16-pound bichon-poodle mix that was then 8 weeks old—to be her service dog. At that time, she did not yet know what tasks she would want Aspen to perform. She took several dog-training classes at a general dog-training facility, Wags & Wiggles, where she learned how to train Aspen for general socialization and good behavior in public.207208210210201187[2]9 C.L. used the methods she learned at the dog-training facility and Katie Gonzalez’s service dog-training book to begin training Aspen to perform specific tasks. C.L.’s method, as taught by the classes, included positive reinforcement and verbal acknowledgement of successfully performed tasks, while extinguishing inaccurate or inappropriate behavior. C.L. also used a clicker as a positive reinforcement tool.

In 2013, C.L. trained Aspen to perform specific tasks to mitigate symptoms of her disability:

  1. Waking from Nightmares:C.L. trained Aspen to wake her from nightmares by standing on her or licking her face. This task interrupted the nightmares, thereby improving her sleep and reducing the amount of distress she experienced following a nightmare. C.L. testified that by the end of 2013, Aspen was consistently performing the task of waking C.L. from nightmares and not waking her for any other purpose.
  2. Grounding:C.L. experiences flashbacks and anxiety. C.L. trained Aspen to place herself in a particular position on C.L.’s lap and apply deep pressure while facing forward. This “grounds” C.L. in the present. C.L. testified that Aspen was performing this task consistently by the end of 2013.
  3. Alert for People Approaching:C.L. trained Aspen to alert her that someone is approaching outside her sightline, alleviating C.L.’s symptoms of hypervigilance and improving her ability to focus on tasks at hand.

In 2014, C.L. attended a two-day seminar at Little Angels Service Dogs’ facility in San Diego. The seminar was the first course in a three-seminar series, where C.L. learned about how to select an appropriate service dog, the laws and regulations related to having a service dog, and basic training concepts. Specifically, C.L. learned additional techniques for using positive reinforcement and correcting unwanted behaviors such as the “leash tug” and an approach that involved tapping the dog in the hind area. Later that year, Little Angels offered two additional seminars for training one’s own service dog. C.L. says she did not attend them because they offered training in tasks that she did not need her dog to perform, such as turning on a light or opening a door. Moreover, she could not afford the tuition or the cost of traveling from her home in Santa Ana to San Diego. Nevertheless, she continued to communicate with Little Angels trainers via email and telephone to discuss Aspen’s progress, receive feedback, and get her training questions answered as she continued training.

C.L. testified to training Aspen to accomplish the following additional tasks in 2014 and 2015:

  1. Interrupt Self-Injurious Behavior:C.L. trained Aspen to interrupt behaviors such as cutting and banging her head against a wall. For example, when C.L. is banging her head against a wall, Aspen places herself between C.L. and the wall. Although C.L.’s therapist also proposed strategies for interrupting self-injurious behavior, including use of ice or a rubber band to safely provide a sensory distraction, C.L. testified that Aspen is much more effective than these strategies.
  2. Cornering:C.L. trained Aspen to go around a corner ahead of C.L. and alert her if someone is approaching. Being alerted to the presence of people before she sees them alleviates C.L.’s anxiety and hypervigilance.
  3. Boundary Control:C.L. trained Aspen to create a boundary with her body between C.L. and other people, enabling her to spend more time in public.
  4. Alert for Medication:C.L. trained Aspen to alert her when her anxiety is increasing, even before C.L. becomes conscious of it herself.
  5. Standing Guard by the Shower:C.L. has difficulty showering due to past sexual abuse, so she trained Aspen to sit in a specific location outside the bathroom door and to come get her if someone approaches.

On thirteen separate occasions, C.L. sought inpatient treatment at Del Amo’s National Treatment Center. Only seven of those admissions, which took place between September 2015 and August 2017, were the subject of C.L.’s claims in her initial complaint. The National Treatment Center program specializes in treatment of patients who have experienced trauma. During those seven admissions, Del Amo denied C.L.’s request to bring Aspen with her. The hospital denied C.L.’s request because Del Amo clinicians determined that Aspen’s presence in the Center would interfere with C.L.’s therapy by allowing her to rely on Aspen rather than learn coping skills.

After the four-day bench trial, the district court entered judgment in favor of Del Amo on the grounds that C.L. had not shown Aspen was or is a service dog due to the dog not being certified. The court did not reach the question of whether Del Amo had proved its affirmative defense of “fundamental alteration.” C.L. timely appealed.

II

Court’s Reasoning the ADA Prohibits Certification Requirements for Service Dogs because the ADA defines a service dog in functional terms without reference to specific training requirements.

  1. The ADA’s implementing regulations, 28 C.F.R. §36.104188202211211209208, define a service animal as any dog individually trained to do work or perform tasks for the benefit of an individual with a disability, including a psychiatric disability, where the work or tasks are directly related to the individual’s disability.
  2. Nothing in the regulations specifies by whom the dog must be trained. Rather, the regulations defines a service dog by the outcome of the training, i.e. what the dog is capable of doing to ameliorate an individual’s disability.
  3. The language also makes clear that the dog’s capabilities must be trained for that purpose. In other words, a well-trained companion animal that happens to alleviate a person’s anxiety does not suffice, but a dog trained by the individual to perform certain tasks to alleviate that anxiety does.
  4. District Courts around the country that have considered the question have found that the ADA does not require a service dog to perform a particular number of trained tasks or amount of work.
  5. There must be some evidence of individual training to distinguish the service animal from the ordinary pet.
  6. The head of the entity that plaintiff worked with in training her dog explained that the process of training a dog to mitigate symptoms of disability may involve reinforcing some natural behaviors and extinguishing other behaviors until the dog is consistently performing the desired task. She also testified that plaintiff’s dog had been trained to perform several tasks well beyond the normal behavior of a pet, such as: licking plaintiff’s face to wake her from a nightmare; interrupting self-injurious behavior; cornering; boundary control; and other specific trained tasks.

III

Court’s Reasoning the ADA Prohibits Certification Requirements for Service Dogs because the DOJ regulation, rulemaking commentary, and guidance have consistently rejected a formal certification requirement.

  1. DOJ has consistently stated in regulation, rulemaking commentary and other official department guidance that a service animal within the meaning of the ADA must be individually trained to perform tasks related to an individual’s disability, but the animal need not be formally certified.
  2. The test is a functional one. The tests ask whether the dog consistently helps a person with a disability meet the challenges of life by assisting in the person’s activities of daily living.
  3. In enacting the ADA, Congress explained that one of its purposes was to ensure that the federal government plays a central role in enforcing the standards that go along with the ADA. Accordingly, Congress gave the Atty. Gen. the responsibility to promulgate regulations implementing the provisions of title III of the ADA (and for that matter title II as well).
  4. DOJ regulations and commentary make clear that individuals may self-train service animals without obtaining formal certification.
  5. DOJ’s administrative guidance regarding the public accommodation provision is entitled to Chevron deference. The current regulations were made final after the DOJ published a notice of proposed rulemaking in June 2008. After receiving comments, the DOJ issued its final regulations in September 2010 and the regulations took effect in March 2011.
  6. Requiring certification under international standards used by some is contrary to multiple aspects of the 2010 DOJ regulations.
  7. The DOJ regulations, 28 C.F.R. §36.104189203212212210209, state that a person with a psychiatric or other mental disability may benefit from the use of service animals.
  8. Trained tasks can include preventing or interrupting impulsive or destructive behaviors.
  9. A dog can be trained to aid a person with a disability without formal schooling.
  10. The DOJ’s commentary accompanying rulemaking confirmed that persons with disabilities do not have to secure formal training of their animal and may self-train their animals.
  11. The DOJ actually considered and specifically rejected a recommendation submitted by multiple commenters to adopt formal training requirements for service animals.
  12. The DOJ justified its decision by noting that a certification requirement would increase the cost of acquiring a service animal thereby limiting access to such animals for individuals with limited financial resources. DOJ also suggested that such training standards would be too lengthy and detailed.
  13. DOJ expressed an intention not to unnecessarily impede individual choice in light of the diverse needs and preferences of individuals with disabilities.
  14. Declining to impose any kind of rigid training requirement, DOJ emphasized that individuals with disabilities are capable of training their service animal to perform tasks to do work to accommodate their disability.
  15. It is enough if a service dog has been trained to perform specific tasks that consistently aids a person with a disability by making them more able to perform necessary tasks and enjoy the activities of daily living.
  16. The District Court’s decision also creates tension and a mismatch with 28 C.F.R. §36.302190204213213211210, which talks about arrangement that places of public accommodations must make for service animals. In particular, subsection (c)(6) permits public accommodation to ask only two questions [the court’s words not mine], to determine whether an animal is a service animal: 1) whether the animal is required because of a disability; and 2) what work or tasks the animal has been trained to perform. The place of public accommodation is expressly prohibited from requiring documentation, such as proof that the animal has been certified, trained or licensed as a service animal.
  17. DOJ observed that requiring individuals with disability to carry around documentation would be unnecessary, burdensome, and contrary to the spirit, intent, and mandates of the ADA.
  18. Many district courts around the country have declined to apply a certification obligation.
  19. The DOJ has conveyed the same views in a Technical Assistance Manual and other guidance documents. Those materials can properly serve as authoritative sources of interpretive guidance.
  20. The DOJ Technical Assistance Manual on the ADA defines service animals by the tasks they perform and not by reference to a particular training protocol.
  21. The DOJ Technical Assistance Manual also identifies that a number of States have programs certifying service animals. However, it instructs that private entities may not insist on proof of State certification before permitting the entry of a service animal to a place of public accommodation.
  22. The DOJ’s frequently asked questions document makes clear that the ADA considers self- training to be a viable option.

IV

Court’s Reasoning That the ADA Prohibits Certification Requirements for Service Dogs because allowing a person with a disability to self-train a service animal furthers the stated goals of the ADA.

  1. The ADA was signed in the law on July 26 of 1990.
  2. Congress sought to eliminate discrimination faced by people with disabilities in essential facets of everyday life, including but not limited to places of public accommodations.
  3. One of the ADA’s goals is to provide a clear and comprehensive national mandate for the elimination of discrimination against people with disabilities. 42 U.S.C. §12101191205214214212211(b)(1).
  4. The flexibility to self-train a service animal for an individual’s specific needs further the ADA’s goal contained in 42 U.S.C. §12101(a)(7) of helping people with disabilities live with equality of opportunity, full participation, independent living, and economic self-sufficiency.
  5. A certification requirement would have negative consequences for persons with psychiatric disabilities who rely on service animals.
  6. Research shows significant favorable impact that service animal can have on the quality of life for persons with disabilities, including psychiatric disabilities.
  7. Service animals have been shown to help individuals with autism, posttraumatic stress disorder, and anxiety.
  8. Service dogs have been associated with clinically significant reductions in PTSD symptoms compared to usual care alone.
  9. With a service dog, plaintiff can do a myriad of things that she could not do without the service dog, including but not limited to going out into public because of her animal’s training and alerting her to the presence of other people.
  10. Enrolling in a training course to obtain a certification is not always a viable option for people in the plaintiff’s situation who have not been able to work until obtaining the service animal.
  11. The certification that the District Court insisted on was not possible in this case because plaintiff would have had to attend three seminars and provide proof of disability from a medical provider. Those burdens would be in addition to the $900 tuition, plus any travel or other expenses required to attend multiple day sessions. Further, plaintiff did not attend all three sessions because some of the sessions were focused on tasks that she did not need her service animal to perform.
  12. DOJ declined to adopt formal training requirements precisely because the needs of each individual with a disability vary greatly from individual to individual.
  13. A ruling that service animals cannot be qualified under the ADA if an expert is not able to certify the animal based upon the standard of a private organization would have the effect of denying legally protected access to public accommodations for persons like the plaintiff needing a service animal to mitigate the effects of the disabilities in ADA covered spaces.
  14. There is no industrywide consensus on the proper certification standards. For example, the head of the agency that plaintiff worked with testified that her organization starts with the general certification framework of another organization, but then adds additional standards.
  15. It is unclear how a person like the plaintiff could reliably choose between these various standards, especially since the DOJ does not endorse any of them, to ensure the “certification,” will be judicially recognized.
  16. Importing a certification requirement would not create certainty for whether a dog is truly a service animal. Instead, it would multiply litigation over which certifications are judicially valid.
  17. Under the ADA, the proper focus is on whether a service animal will consistently and reliably help a person with a disability in performing activities of daily living.

The court remanded for the district court to consider whether plaintiff’s testimony regarding herself training of her animal combined with the head of the agency that she worked with in training her animal was sufficient to show that her service animal was more likely than not a qualified service dog at the time of trial.

V

Thoughts/Takeaways

  1. This is one of the few cases that you will run across where its impact goes across all titles of the ADA. Its reasoning is broad enough so that no covered entity (title I, title II, or title III), should insist on professional training or some kind of certification of a service animal. That means, for example, in the title I context when an employer is trying to figure out whether the animal is a service animal or not, the employer  should not be asking for certification or proof of professional training when requesting additional documentation.
  2. With service animals the key is whether the dog has been trained to engage in recognition and response.
  3. Whether an animal is a service animal is outcome based.
  4. People with disabilities can certainly train their animals to be service animals. The plaintiff did in this case. As I have mentioned previously, I trained my miniature poodle to be a hearing dog while I practice virtually.
  5. Individuals even those with the same disability, vary greatly. So, it is entirely possible that a service animal may do different things for individuals with disabilities even with respect to two individuals of the same disability.
  6. We have talked many times before that the two questions is not two questions at all but two inquiries. The distinction is important because inquiries allows for narrowly focused follow-up questions while two questions does not. The problem, as we have also mentioned before, is that the DOJ regulations talk about two inquiries while the DOJ frequently asked questions document talks about two questions. Regulations per Kisor v. Wilkie, discussed here192206215215213212, trump guidance documents.
  7. The District Court talking about tension and mismatches with other titles of the ADA is an important point. We see that all the time with respect to animals being brought into places of employment of entities subject to title I of the ADA. The EEOC is completely silent on animals. So, one question that arises is whether an emotional support animal is kosher under title I of the ADA. An employee’s ESA creates immediate tension with title II and title III where the answer is a definitive no. We discussed service animals in the context of title I before in this blog entry193207216216214213.
  8. The Fair Housing Act and the Air Carrier Access Act are completely different laws. The Air Carrier Access Act has the advantage of final regulations being issued by the Department of Transportation, which we discussed here194208217217215214. The Fair Housing Act has a unique disadvantage of just being a circular195209218218216215 not connected to any regulations or even the statute itself. Nevertheless, the rules are different. With respect to the Fair Housing Act, one wonders if this case won’t impact the circular especially since the circular is not tied to any regulations or statutory provisions.
  9. The DOJ Technical Assistance Manual is treated very persuasively by the Ninth Circuit. That may have implications for other issues that arise where the Technical Assistance Manual would prove helpful to a plaintiff.
  10. Many people with disabilities pour a tremendous amount of financial and emotional resources into just surviving, but they also have the time to be able to train their dog to be a service animal. As the court mentioned, a professionally trained service animal is incredibly expensive. It also can can take a really long time for the person with a disability to get professionally trained animals.
  11. There is indeed no industrywide consensus on proper certification standards. Europe has them but no such thing exists here in the United States.
  12. Training a dog to do tasks they are naturally inclined to do is perfectly permissible if such actions by the dog reliably help a person with a disability in performing activities of daily living.
  13. This is one of the few times that I have seen a clear explanation of what the test is for a service dog (something along the lines of does the dog consistently/reliably help a person with a disability in performing activities of daily living).
  14. In my opinion, an appeal to the United States Supreme Court would not be successful for the hospital assuming the Court even took the case in the first place.
  15. Whether an animal is a service animal is established by a preponderance of the evidence.
  16. The case also calls into question the line of cases suggesting that a service animal must somehow in the title I context link up in a specific way to the essential functions of a person’s job.
  17. State service animal laws may not meet the floor set by this case. Even so, federal law trumps conflicting State laws per the supremacy clause.

Before moving on to the blog entry of the week, a couple of housekeeping matters. First, one of the things that I do is act as a FINRA arbitrator. There is a final hearing all of next week. The final hearing will be conducted virtually over zoom. I have been absolutely amazed with how FINRA has accommodated my deafness over time. That isn’t always the case with ADR entities or with anyone else as y’all know. It is a real pleasure to be a part of FINRA. So, there will not be a blog entry next week as the hearing is expected to go Monday through Friday during working hours with a break for lunch etc. Second, I do want to say that my thoughts and wishes go out to the victims of the recent Atlanta and Colorado shootings.

 

Turning to the cases of the day, one from the District Court in Connecticut and the other from the Eastern District of Louisiana, they both deal with CBD/marijuana. As usual, the blog entry is divided into categories and they are: Huber facts; Huber reasoning; Huber thoughts/takeaways; Eccleston facts; Eccleston reasoning; and Eccleston thoughts/takeaways. Of course, the reader is free to concentrate on any or all of the categories.

 

I

Huber v. Blue Cross and Blue Shield of Florida, Inc.185185194201202202207204

 

Huber Facts

 

Plaintiff suffered from severe migraines and nothing seemed to work with respect to treating it. Eventually, her primary care physician recommended using non-psychoactive CBD oil to help manage her migraines as the other medications failed to work. After starting on the CBD oil, her work performance improved and she received five out of five performance ratings for the years 2017 and 2018, reduce the time that she had to take for FMLA leave, and even received a promotion in June 2019. In July 2019, her supervisor held a team meeting where he informed the plaintiff that she had to take a drug test. The same day she spoke with her supervisor separately and reminded him of her disability as well as the various medications she took due to her disability, including CBD oil. Her supervisor told her she would not lose her job based upon the results of the drug screen, to play along, and that the recommendation from her doctor for the CBD oil would alleviate any concerns with the drug test results. Plaintiff did exactly that.

 

After the drug test results came back, the employee relations consultant for BCBS called plaintiff and told her that they received the drug test and that her job was on the line. She then emailed that individual a copy of her Dr.’s recommendation of the CBD oil and a letter from her doctor regarding the use of CBD oil for her disability. The person said that the information she supplied was very thorough and assured her that her job was safe. That did not turn out to be the case as she was terminated from her employment with BCBS on July 30, 2019. She filed an EEOC charge and then brought suit alleging violations of both the ADA and the Louisiana employment discrimination law because of terminating her on account of her disability and the failure to accommodate her by not allowing her to use CBD oil to control her migraines.

 

II

Huber Reasoning

 

  1. Plaintiff alleged that she is disabled due to unmanageable migraines, that BCBS was aware of plaintiff’s disability since at least 2006, and that BCBS regarded her disabled because it granted the requested accommodations in the form of FMLA leave due to her migraines. She also alleged that she was qualified for the job because she could perform the job with or without reasonable accommodations. She also alleged that her work performance actually improved after her physician prescribed the non-psychoactive CBD oil. All of that works for purposes of surviving a motion to dismiss.
  2. The retaliation claim fails because her allegations are conclusory.
  3. With respect to her interference claim, it survives a motion to dismiss because of the following allegations that a court must assume as true for purposes of a motion to dismiss: 1) plaintiff engaged in a protected activity by seeking an accommodation requesting that she be allowed to use hemp derived CBD oil to manage her migraines; 2) BCBS allegedly interfered with her rights by informing her that her job was on the line when they received her drug screen results when in response to her email documenting her CBD oil use, a BCBS employee had previously informed her that her documentation was very thorough, her job was safe, and that her physician recommended use of CBD oil would alleviate any concerns with her drug test; 3) despite those communications she was terminated; 4) enforcing a policy in a way that penalizes an employee with a disability for availing herself of a reasonable accommodation for disability interferes with the employee’s ADA rights.
  4. For the same reasons as her disability discrimination claim survives, including a separate failure to accommodate claim, her claims under Louisiana law also survive a motion to dismiss.
  5. Defendant’s motion for summary judgment gets denied because summary judgment is premature and fact issues exist as to whether plaintiff violated her employer’s drug policy.

 

III

Huber Thoughts/Takeaways

 

  1. This case involves CBD oil and not marijuana, which is psychoactive.
  2. Whenever you are alleging a claim of disability discrimination on the plaintiff side, pretending that notice pleading doesn’t exist is a good idea. You definitely want to put in enough facts to put the defense and the court on notice as to exactly what is going on. Leave as little room for assumptions as possible.
  3. An interference claim can arise where an employee seeks reasonable accommodations, another employee assures that person that things will be okay, and then a third employee gets in the way.
  4. The jurisdictions are divided as to whether a failure to accommodate claim is a separate cause of action. Some Circuits say that it is while others say it is all part of disability discrimination. State laws, such as Louisiana, may have a specific failure to accommodate claim built into their scheme. So, you definitely want to check your jurisdiction.

 

 

Eccleston v. The City of Waterbury186186195202203203208205

 

IV

Eccleston Facts

 

Plaintiff was hired as a firefighter by the city of Waterbury in June 1995 and he eventually received the rank of Capt. Following an allegation of misconduct outside the workplace, he signs a last chance agreement and accepts a demotion to the rank of Lieut. That agreement specifies that instead of termination for the alleged misconduct, he gets placed on probation subject to mandatory random drug testing and could be subject to termination if he tested positive for a controlled substance.

 

In 2017, plaintiff was diagnosed with PTSD stemming from experiences he suffered during his lengthy career as a firefighter. On February 16, 2017, while speaking at a public hearing on public safety and security the mayor allegedly made discriminatory comments expressing disdain for individuals with PTSD and suggesting that they should not be employed as first responders.

 

At some point after he was diagnosed with PTSD, plaintiff spoke to his battalion chief and told him he was considering applying for a Connecticut registration certificate for medical marijuana. He was told by firefighting personnel it was not a good idea but nevertheless went ahead and obtained a Connecticut registration certificate for medical marijuana. Of course, he eventually winds up taking a drug test as part of the random testing regimen and the test is positive. Without disclosing his PTSD, plaintiff said that he was a registered user of medical marijuana and had obtained a valid registration card from the state of Connecticut. He was also advised by the chief of the Waterbury fire department to obtain a fitness for duty evaluation from a doctor and that he would be placed on light duty status. However, later that day the plaintiff was hand-delivered a letter informing him that instead of being placed on light duty status, he would be placed on unpaid administrative leave pending the investigation. He did obtain the letter from his physician confirming plaintiff’s fitness for duty with no restrictions. Even so, he gets terminated and bring suit after receiving his right to sue letter.

 

V

Eccleston Court’s Reasoning

 

  1. To state a claim for discriminatory discharge a plaintiff has to allege: 1) the defendant is an entity covered by the ADA; 2) plaintiff suffers from or is regarded as suffering from a disability within the meaning of the ADA; 3) plaintiff was qualified to perform the essential functions of the job with or without reasonable accommodation; and 4) plaintiff was terminated because of a disability.
  2. McDonnell Douglas burden shifting scheme applies.
  3. 42 U.S.C. §12114187187196203204204209206 state that a qualified individual with a disability does not include any employee or applicant currently engaging in the illegal use of drugs when the covered entity acts on the basis of that use.
  4. The ADA defines illegal drug use by referencing the controlled substances act, which classifies marijuana as a schedule I illegal substance based on its high potential for abuse and lack of currently accepted medical use in treatment. 42 U.S.C. §12111188188197204205205210207(6), 21 U.S.C. §812189189198205206206211208()(1)(a)-(c).
  5. The ADA at 42 U.S.C. §12111(6) also says that the term illegal use of drugs does not include the use of a drug taken under supervision by a licensed healthcare professional or where other use is authorized by the controlled substances act.
  6. While it is true that the ADA provides a clear exception for drug use under the supervision of a physician, federal law still explicitly prohibits the use, possession, and distribution of marijuana even for medical purposes.
  7. While one court has concluded that the ADA does not preempt state laws protecting employees from discrimination on the basis of medical marijuana and therefore states are free to provide those protections, that same court suggested in dicta that the ADA itself cannot be interpreted to provide protection against that same discrimination. That is, doctor supervised marijuana use is an illegal use of drugs not covered by the ADA’s supervised use exception. Other district courts in other Circuits have reached the same conclusion.
  8. Courts have also rejected the argument that discrimination on the basis of medical marijuana reflects discrimination on the basis of the disability that the medical marijuana is used to treat. To read the ADA any other way, places the ADA in direct tension with the clear provisions of the controlled substances abuse act, which is the statute the ADA relies upon to define the term illegal drug use. So, an individual who uses medical marijuana cannot state a prima facie case under the ADA for discrimination on the basis of medical marijuana use because medical marijuana does not fit within the supervised use exception of the ADA and remains illegal under federal law. This is the case even where a plaintiff can establish the drug usage link to an underlying disability recognized by the ADA and taken under the supervision of a physician.
  9. The use of medical marijuana does not waive protections of the ADA altogether because the specific text of 42 U.S.C. §12114190190199206207207212209 provide that a qualified individual does not include an employee engaging in the illegal use of drugs when the covered entity acts on the basis of that use (emphasis mine). That is, the ADA does not protect medical marijuana users who claim to face discrimination on the basis of that marijuana use. Stated another way, plaintiff could still have an ADA discrimination claim if he could plausibly allege that he was discriminated against in the terms and conditions of employment on the basis of PTSD rather than on his medical marijuana use.
  10. Plaintiff does not have any allegations in his complaint that his employer was even aware of his PTSD diagnosis only that they should have been aware of it because of his medical marijuana registration certificate being presented to human resources.
  11. No allegations exist that the card specifically referenced a diagnosis of PTSD or even listed the conditions for establishing eligibility of such a registration card. Further, no allegations exist that he made anyone else aware of the underlying illness that prompted him to obtain the card.
  12. While he does allege that the mayor was aware of his medical marijuana registration certificate, there are no allegations that the mayor was aware of a diagnosis of PTSD.
  13. The ADA has no exception for illegal drug use caused by an underlying disability and instead explicitly allows an employer to drug test employees and terminate their employment on the basis of illegal drug use without violating the ADA.
  14. The failure to accommodate claim fails because using marijuana, which is a schedule I illegal substance, is not a reasonable accommodation.
  15. The mere suggestion that the plaintiff might get a medical marijuana card is not sufficient to establish that his employer was aware of his need for an accommodation and needed to initiate the interactive process.
  16. The ADA provides no protection from retaliation for an employee currently engaging in the illegal use of drugs when the covered entity acts on the basis of that use.

 

VI

 

Eccleston Thoughts/Takeaways

 

  1. Your state law can make a big difference in these cases. See this blog entry for example191191200207208208213210.
  2. CBD oil and marijuana are not the same thing and that distinction can matter a lot.
  3. Disclosure of a disability is always a very personal call and it depends upon a variety of factors. In general, on the plaintiff side, early disclosure is always better.
  4. While magic words are not required, a person with a disability does need to put his or her employer on notice that a disability is involved and accommodations are needed. Even though magic words are not required, there still has to be notice. The notice in this case was not sufficient. You can see the difference in notice when you compare our first case, Huber, with Eccleston.
  5. Just because under this decision and employer gets a get out of jail free card with respect to acting on the basis of marijuana use, the employer is going to want to be careful that they are also not acting on the basis of the underlying disability. Where they are acting on the basis of the underlying disability, there is potential liability exposure, especially in light of how causation has changed per Bostock, which we discussed here192192201208209209214211.
  6. The controlled substances act, which says that marijuana has no medical use, may need to be updated. Regardless of what you may think of marijuana addictive use qualities, there are certainly many many people using marijuana for medical use. It will be interesting to see whether we see any changes in controlled substances act in the future.

Airplane, Aircraft, Take Off, Flight

 

Colonel Johnny

 

Please find below, a continuing legal education webinar that I am doing in the first week of May. It has two parts to it. The first part will be discussing the intersection of the Airline deregulation act, the air Carrier Access act, the ADA, and state negligence laws. The second part of it will be discussing the DOT final rule concerning animals on planes and how it compares to the ADA and the FHA. If you are a Georgia attorney, CLE will be submitted for you. All you have to do is put in your bar number at the registration link. If you are not an attorney or you are an attorney licensed in another state, just put in “N/A” in the bar number box. If you are an attorney licensed in another state and want CLE, you will have to submit this on your own to your respective state bars. Hope everyone can join us.

Aviation Law Section | Upcoming CLE

Section Members:

Make plans now to join the Aviation Law Section for a CLE event in May.

Topic: The Intersection Between the Americans with Disabilities Act and Commercial Airline Travel

Date/Time: May 5, 2021 from 12 – 2 p.m.

CLE: 2 hours of trial CLE credit pending

The Aviation Law Section of the State Bar of Georgia will sponsor a two hour webinar featuring William Goren and chaired by Alan Armstrong, dealing with the intersection of the law as it relates to the Americans with Disabilities Act (“ADA”) and the duties and obligations of air carriers holding certificates of authority to engage transportation by air under Part 121 of the Federal Aviation Regulations. Mr. Goren has extensive experience in the area of ADA and brings a wealth of knowledge relating to this timely and interesting topic. This event is free and materials will be emailed prior to the event.

Please mark your calendars and make plans to attend this interesting and informative webinar.

Click here185196191201209206 to register. Please note, you must register prior to the day of the event. After registering, Zoom will email the information needed to join the day of the webinar. If you are not a member of the State Bar of Georgia, please enter “N/A” when asked for your Bar number during the registration process.

Alan Armstrong, Chair
Aviation Law Section
State Bar of Georgia

 

Today’s blog entry takes a page from Richard Hunt and how he often blogs in his accessibility defense blog. That is, I’m going to briefly summarize a few cases all at once. That way, I will clear out some of the backlog in my blogging pipeline. I was having trouble finding a case to take a deep dive into, and so I decided to take this approach. Even though the approach is different than usual, I still offer takeaways in the discussion.

 

I

Gloeckner v. Kraft-Heinz Foods Company185185194199199199 decided by the District Court of Oregon on March 9, 2021. The key for this case is overtime can be an essential function of the job. However even if it is an essential function of the job, the question is whether the person can perform the essential functions of the job with or without reasonable accommodations. Defendant also failed to engage in the interactive process with respect to exploring reasonable accommodations with respect to overtime. The takeaways here are always engage in the interactive process. Also for every essential function of a particular job, the question is whether that function can be performed with or without reasonable accommodations.

 

II

Reyazuddin v. Montgomery County, Maryland186186195200200200, a published decision decided by the Fourth Circuit on February 24, 2021. Here after receiving a jury verdict in the plaintiff’s favor but receiving nothing in compensatory damages, the defendant transferred the plaintiff as she originally desired to another position. The court then denied equitable relief on that basis. Plaintiff then sought attorney fees. Defendants argued that the plaintiff was not a prevailing party because the catalyst theory is not how it works when it comes to attorney fees. The court wasn’t buying it because the plaintiff actually received a favorable jury verdict notwithstanding the plaintiff not getting any compensatory damages. The takeaway here is that what is a prevailing party is more complicated than at first blush. Here while there was no continuing jurisdiction, plaintiff did win a jury verdict. So, plaintiff gets attorney fees as a prevailing party. We have talked before in our blog before about a consent decree rather than a settlement being useful to make sure attorney fees are there if you are on the plaintiff side. See here for example187187196201201201.

 

III

Brown v. Los Angeles Unified School District188188197202202202, a published decision from the Court of Appeal of the state of California for the second Appellate District decided on February 18, 2021. Here, the plaintiff alleged that the school system’s Wi-Fi system was making her sick. The defense moved to dismiss and the trial court granted it, i.e. what California calls granting a demurrer. The appellate court reverses saying that the California disability nondiscrimination law goes further than the ADA and therefore, whether the ADA recognizes getting sick through Wi-Fi is a disability is irrelevant. Also, a failure to accommodate is a separate cause of action. There was a concurring opinion expressing a worry about the proliferation of experts and how allowing a Wi-Fi makes you sick claim to proceed will open the floodgates. The takeaways here are state laws can go further than the ADA. The ADA just sets a floor and not a ceiling. Also, jurisdictions vary on whether a failure to accommodate is a separate cause of action.

 

IV

Bayer v. Neiman Marcus Group, Inc.189189198203203203, an unpublished decision from the Ninth Circuit decided January 26, 2021. Here, plaintiff loses a bench trial and appeals. The Ninth Circuit reverses and remands. What happened in this case is that after the plaintiff returned from medical leave, Neiman Marcus denied his request to modify his work schedule to accommodate his ADA qualifying medical condition. Shortly after that, plaintiff filed an administrative charge with the EEOC alleging failure to accommodate. The same day, Neiman Marcus present Bayer with the mandatory arbitration agreement. That mandatory arbitration agreement mandated arbitration for administrative charges already filed and also purported to change the applicable statute of limitations. It also gave Neiman Marcus the right to reserve for itself the power to amend, modify, or revoke the agreement terms at any time with 30 days notice to the employee. The plaintiff refused to sign and filed a second EEOC charge claiming that Neiman Marcus interfered with his rights in violation of the ADA. The court agrees and hold that an employer interferes with ADA rights when it knowingly compels an employee with a pending EEOC charge to a false choice of either resigning or consenting to an unconscionable arbitration agreement that specifically targets ADA rights.

The takeaways from this case are several: 1) arbitration agreements should focus on acts in the future and not in the past; 2) arbitration agreements do not get to change existing statute of limitations; 3) unilaterally having the power to amend, modify, or revoke existing arbitration agreements is problematic; and 4) while you hear a lot about retaliation claims, interference claims are also a possibility under the ADA as well. See this blog entry for example190190199204204204.

Today’s blog entry talks about a published decision from the Third Circuit that came down on March 3, 2021. It deals with what happens when a physical or mental exam after a conditional job offer is done in an ADA noncompliant way. The case of the day is Gibbs v. City of Pittsburgh, which can be found here184196206203. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning plaintiff stated a claim for disability discrimination; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

Gibbs applied to be a Pittsburgh policeman. He passed the written test with flying colors and got a conditional job offer. After that, he had to be personally examined by a Pennsylvania licensed psychologist and found to be psychologically capable of exercising appropriate judgment or restraint in performing the duties of a police officer. Two of the psychologists who interviewed him said he was unfit to serve. So, he never got the final offer.

Gibbs filed suit and alleged that the psychologists were biased because they reflectively rejected him after learning of his ADHD diagnosis. They never explored whether his ADHD would interfere with his job. If they had, they would have learned that his ADHD was under control. Further, five other Police Department found him mentally fit and had hired him. He also had never misbehaved as a police officer or as a Marine. While he did misbehave as a child that was before he was treated for ADHD. Finally, Gibbs alleged that Pittsburgh had hired other applicants with similar childhood issues not caused by ADHD. The City of Pittsburgh filed a motion to dismiss, which was granted, and Gibbs appealed to the Third Circuit.

 

II

Court’s Reasoning Stating that Plaintiff Stated a Claim for Disability Discrimination

 

  1. Proving up a disability discrimination case under the ADA or the Rehabilitation Act involves showing: 1) plaintiff is a person with a disability; 2) plaintiff was qualified for the job; and 3) plaintiff suffered discrimination because of his disability.
  2. The ADA protects job applicants if they are regarded as having a disability.
  3. In a regarded as situation, the test is whether the employer perceived the employee as impaired regardless of whether that impairment limits or is perceived to limit a major life activity.
  4. Even though plaintiff’s ADHD was under control, the psychologists allegedly thought it was a handicap and fixated on that in rejecting him.
  5. When a plaintiff claims that job criteria are applied in a discriminatory way, the plaintiff does not need to satisfy the discriminatory criterion in order to bring a discrimination claim. A plaintiff would only have to show that he was qualified based on all the other nondiscriminatory criteria.
  6. A previous case saying that psychological tests for police officers was a valid qualification is of no help to the defense because even in that case the court said that there weren’t any facts that would support a claim of bias. Here, plaintiff has alleged bias.
  7. Detailed evidence is not necessary in a complaint. All a person has to do is give the defense fair notice of his claim and raise the reasonable expectation that discovery will uncover evidence of discriminatory motive. Plaintiff did exactly that through his allegation that once the psychologists learned he had ADHD, they fixated on his childhood misbehavior without considering whether the ADHD was currently under control. Gibbs also claimed that his ADHD was under control and five other police departments thought so as well. Finally, he claimed that Pittsburgh hired other policemen who had likewise misbehaved as a child but did not have ADHD. So if the allegations are true, a reasonable chance exists that discovery will unearth more of it.
  8. The argument that the psychologists were biased and not the city of Pittsburgh so that the city of Pittsburgh gets a free pass does not wash. It doesn’t wash because the ADA prohibits participation in a contractual or other arrangement or relationship that has the effect of subjecting a qualified applicant to discrimination. So, an employer cannot abate its obligations under the ADA by contracting out personnel functions to third parties by way of using preemployment examinations as conclusive proof of an applicant’s mental capabilities. In other words, if the psychologists discriminated against the plaintiff, Pittsburgh is liable for relying on them.
  9. The argument that state law mandates a psychological exam and therefore permitted Pittsburgh to screen out the plaintiff doesn’t apply either because an employer may not shield itself from federal antidiscrimination liability just by saying that it was trying to follow state law. In other words, by virtue of the supremacy clause the demands of the federal Rehabilitation Act or the ADA for that matter do not yield to state laws that discriminate against persons with disabilities. In fact, it works the other way around. So, trying to follow Pennsylvania law is not a defense when federal law says to do so would be discriminatory.

 

III

Thoughts/Takeaways

 

  1. We previously discussed the scheme for disability related inquiries before in our blog, such as here185197207204. Under that scheme, just about anything goes with respect to medical exams after a conditional job offer. Even so, you can’t reject that person with the information received during the course of that physical or mental exam unless you can show that the information received is job-related, consistent with business necessity, and the person could not perform the essential functions of the job with or without reasonable accommodations.
  2. Stereotyping disabilities, even by psychologists, is a dangerous game because it may lead to justifiable regarded as claims.
  3. For regarded as claims, a plaintiff does not have to show that the employer perceived a substantial limitation on a major life activity. All they have to show is that the employer regarded them as having a physical or mental impairment.
  4. In essence, what happened here was a “fitness for duty,” exam. For ADA compliance purposes, the question here is whether the person can perform the essential functions of the job with or without reasonable accommodations and whether the person is a direct threat. Since this is an employment situation, the question is whether the person would be a direct threat to self or to others. Remember, direct threat is a high standard as we have discussed numerous times in our blog, such as here186198208205. In particular, under Chevron v. Echazabal, and is echoed in the implementing regulations of title I, title II, and title III of the ADA, a direct threat finding must be based upon a reasonable medical judgment relying on the most current medical knowledge and/or the best available objective evidence. It also must be based upon an individualized assessment of the individual’s present ability to safely perform the essential functions of the job.
  5. The context of the medical exam matters because, unlike title I, under title II and title III final implementing regulations put out by the DOJ, the DOJ concept of direct threat only applies to direct threat to others and not to self.
  6. A city does not escape liability just because it contracts out with others to perform work and the contractors act in a discriminatory way. In other words, the ADA is a nondelegable duty as we have discussed in this blog entry187199209206.
  7. Whenever you plead an ADA case or Rehabilitation Act case, it is a good idea to allege sufficient facts to put the defendant on notice as to what is going on. With Iqbal and Twombly, relying on notice pleading is never a good idea when it comes to ADA and Rehabilitation Act claims because disabilities are so fact specific.
  8. Just because state law allows for certain procedures does not mean that those procedures get to be carried out in a way that federal law says it discriminatory.
  9. A plaintiff does not have to satisfy job criteria that are applied in a discriminatory way.
  10. The case has implications whenever “fitness for duty,” exams occur. Those types of exam do not always occur in the employment process, such as discussed here188200210207.
  11. Comparatives rarely come into play in disability discrimination cases. However, it was a nice touch here to allege differential treatment those misbehaving as kids without an ADHD diagnosis v. his behavior with an ADHD diagnosis because it shows that the job criteria screened out people with disabilities.
  12. Lots of training needs to be done with the people engaged in “fitness for duty,” exams regardless of whether they are occurring in the employment context or outside of the employment context. In the employment context, the issue is whether the person can perform the essential functions of the job with or without reasonable accommodations without being a direct threat to self or others. If it is being done in the title II context, the issue is whether the individual meets the essential eligibility requirements of the program, services, or activities of the public entity with or without reasonable modifications and without being a direct threat to others. The people performing the medical exam do not get to engage in discrimination on the basis of disability while performing the medical exam.
  13. “Because of,” causation now has a different meaning per Bostock, which we discussed here189201211208.
  14. “Handicapped,” has been out for over 30 years. You want to use “person with a disability,” or “disabled.” I always start with people first and then change to identity first depending upon the individual’s personal preference.
  15. There are a couple of other ADA claims that could be made here. First, under the title II final implementing regulations, 28 C.F.R. §35.130(b)(1)(v),190202212209 the City is prohibited from perpetuating or aiding discrimination by providing significant assistance to anyone discriminating on the basis of disability. Second, one wonders if a title III claim is not available against the psychologists that regarded him as having a disability prevented him from being a police person when they did not explore whether his disability was under control, whether he was qualified, or whether he was a direct threat to self or others.

Today’s blog entry explores an issue that we have not discussed before. It is hard to believe that after 400+ blog entries over eight years that we could find a topic we haven’t discussed. However, that is the beauty of how comprehensive and all-encompassing the ADA is. Today’s case takes on the question of whether acting in a legislative capacity results in complete immunity from any claims of disability discrimination. The United States District Court for the District of New Hampshire holds that it does. As usual, the blog entry is divided into categories and they are: facts of Cushing v. Packard; legislative immunity trumps everything; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts of Cushing v. Packard184189204207

 

Seven members of the New Hampshire House of Representatives and the New Hampshire Democratic Party sued the Speaker of the New Hampshire House of Representatives to allow them to participate in legislative proceedings remotely. Each of the plaintiffs has one or more serious health conditions placing him or her at high risk for severe illness or death should he or she contract Covid-19.

The New Hampshire Constitution states that the House has the power to set its rules of proceedings. House Rule 65 states that if a given procedure is not governed by a constitutional provision, another House rule, or “custom, usage, and precedent,” the procedure shall be derived from the 2020 edition of Mason’s Manual of Legislative Procedure. Rule 786 of the 2020 edition of Mason’s Manual provides that absent specific authorization by the Constitution or adopted rules of the body, remote participation for session by members of the legislative body is prohibited.

In the fall of 2020, members of the House twice attempted to amend the House rules to permit remote participation of how sessions. At the December 2020 House session, one of the representatives proposed an amendment to the House rules that would require the Speaker to permit members upon request to participate remotely in committee meetings and legislative sessions. The House voted on and rejected that proposal. At the January 21, 2021, House session, another amendment to the House rules was proposed that would have explicitly permitted virtual meetings of the full House. The House voted on and rejected that proposal as well.

Despite numerous efforts by the plaintiffs to get the Speaker to change his mind, the Speaker did not grant any members requests for remote participation. He stated that the House has not adopted a rule allowing it to meet remotely, either wholly or in part, and until such a time of the members adopt such a rule, the House was obligated to meet in person.

On February 15, plaintiffs filed this action against the Speaker arguing that his action violated title II of the ADA, Rehabilitation Act, and federal and state constitutions. They also filed simultaneously a Temporary Restraining Order or preliminary injunction focusing solely (emphasis mine), on title II of the ADA and the Rehabilitation Act.

 

II

Legislative Immunity Trumps Everything

 

  1. State legislators have absolute immunity from suit for legislative acts.
  2. Legislative immunity shelters individual legislators from the distractions and hindrance of civil litigation so they can perform the legislative duties without undue interference from federal lawsuits.
  3. The time and energy required to defend against the lawsuit are of particular concern when considering the part-time citizen legislator, which is the case in New Hampshire.
  4. Legislative immunity operates to prevent courts from intruding into areas constitutionally reserved to the legislative branch.
  5. Whether legislative immunity applies in a particular case does not depend on the official’s identity or even on the official’s motive or intent, rather it depends upon the nature of the act in question.
  6. Legislative immunity applies to acts forming an integral part of the deliberative and communicative process by which legislators participate in its proceedings and consider legislation.
  7. Legislative immunity also applies to matters the Constitution places within the jurisdiction of either House.
  8. Legislative immunity only covers actions that are not casually or incidentally related to legislative affairs.
  9. A rule dealing with the very conditions under which legislators engage in formal debate is part and parcel of the legislative process, and the acts of House officials in enforcing it are therefore fully protected against judicial interference by the doctrine of legislative immunity.
  10. A legislative body adopting a rule that is not invidiously discriminatory on its face and that bears upon its conduct of legislative business necessitates the doctrine of legislative immunity applying to officials who do no more than carry out the will of the body by enforcing the rule as part of their official duties. That includes rules regulating the very atmosphere in which lawmaking deliberations occur.
  11. Plaintiffs did not identify any constitutional provision or House rule specifically authorizing remote participation in its sessions, and the court was unaware of any such provisions or rules.
  12. Even though the House has permitted remote participation by members at committee meetings throughout the pandemic, plaintiffs did not identify a custom of remote participation in floor sessions of the House. In fact, House sessions have been in person since the onset of the Covid-19 pandemic.
  13. The rule prohibiting remote participation in House sessions regulate the very atmosphere in which lawmaking deliberations occur.
  14. Rule 786 is not invidiously discriminatory on its face as it applies equally to all members of the House.
  15. In denying individual plaintiffs request to participate remotely in House sessions, the Speaker did no more than enforce a rule that goes to the very conditions under which legislators engage in formal debate.
  16. In the First Circuit, legislative immunity applies regardless of whether the plaintiff seeks prospective relief or damages.
  17. Legislative immunity applies to acts and not actors.
  18. Absolute legislative immunity is justified and defined by the function to protect and serve not by the person to whom it attaches.
  19. Many cases hold that legislative immunity applies to suit for prospective relief because that furthers a key goal of the doctrine, which is protecting those who exercise a legislative function from distractions and costs of litigation.
  20. Since legislative immunity is a creature of federal common law, there is no reason to conclude that it would apply in §1983 actions but not to others absent abrogation of legislative immunity by Congress.
  21. The court isn’t persuaded that an intent to abrogate legislative immunity can be inferred from an intent to abrogate sovereign immunity.
  22. The plaintiff did not provide and the court could not find any case holding that legislative immunity does not apply to title II or Rehabilitation Act claims. In fact, several courts have applied legislative immunity to bar title II and Rehabilitation Act claims, including some seeking injunctive relief.

 

III

Thoughts/Takeaways

 

  1. Interesting use by the court of the phrase “serious health conditions,” because that phrase is an FMLA term and not an ADA term.
  2. We previously discussed a case, here185190205208, from the 11th Circuit holding that sovereign immunity did not apply to legislative streaming on the Internet. One of the things that case said was that it didn’t make sense for Congress to validly abrogate sovereign immunity to protect the rights of students with disabilities to get an education but it could not do the same with respect to student participating in the democratic process. That statement by way of analogy certainly applies to persons with disabilities who want to be legislators and to their constituents that want to see them do a good job.
  3. Congress previously identified in 42 U.S.C. §12101186191206209(a)(3) discrimination in voting and in public services as one of the reasons for the ADA in the first place.
  4. The burden of allowing the legislators to remote in would remove a complete barrier to their participation and could be accomplished with limited cost and efforts.
  5. The legislators are seeking equal footing with the rest of the nondisabled legislators.
  6. Facially neutral policies, as we discussed here187192207210, can violate the ADA when those policies unduly burden persons with disabilities even when those policies are consistently enforced.
  7. What strikes me as an interesting choice by the plaintiffs is that they did not seek a temporary restraining order on the ground that the Speaker’s actions violated the 14th amendment to the U.S. Constitution. Instead, they only sought a temporary restraining order on ADA and Rehabilitation Act grounds. The reasoning for an equal protection claim would go like this: 1) voting is a fundamental right as would be the right of individuals to select people to represent them; 2) a legislator cannot do their job as a person with a disability if the legislature does not engage in the interactive process to figure out how the legislator can do his or her job with or without reasonable modifications; 3) since voting is a fundamental right as is the ability to allow persons with disabilities to run for legislature, the government would need a compelling reason to engage in the facially neutral discriminatory practices; and 4) A compelling reason for the discriminatory action simply can’t be offered, especially since the New Hampshire legislature has already engaged in remote activities
  8. There can be little doubt that sovereign immunity would be waived under the ADA and/or the Rehabilitation Act in this case. There also is little doubt that the plaintiffs would have a strong chance of prevailing on the merits, including proceeding for damages against the Speaker in his official capacity. So, the decision goes too far by giving a get out of jail free card to anyone acting in a legislative capacity even when it is clear that discrimination based upon disability is occurring.
  9. I also believe that the 14th amendment argument is quite a strong one. True, the equal protection class for persons with disability depends upon the circumstances. However, here you have the fundamental right of voters to choose their elected representatives. You also have the right of people to participate in the legislative process. So, at the very least the government would need a good reason if not a compelling reason to deny the remote access.
  10. What is next for the case? Could the denial of the TRO be appealed? The First Circuit directly addressed that question in the case of Calvary Chapel of Bangor v. Mills188193208211 decided on December 22, 2020. In that case, the First Circuit, which includes New Hampshire, said that the denial of a temporary restraining order can be appealed if all of the following are true: 1) the refusal of a temporary restraining order has the practical effect of denying injunctive relief; 2) the refusal of the temporary restraining order would likely cause serious if not irreparable harm; and 3) the denial of the temporary restraining order can only be effectually challenged by means of an immediate appeal. It is up to the plaintiff to carry the burden of persuasion on each of the elements.
  11. The first Calvary factor is clearly satisfied as the denial of the TRO was issued after a full adversarial hearing and no further interlocutory relief is available in the absence of an immediate review. By holding that legislative immunity trumps everything, a preliminary injunction on title II or Rehabilitation Act grounds is not going to happen.
  12. The second Calvary factor is clearly satisfied as well because the lack of immediate appealability would cause serious harm as the legislators with disabilities cannot do their job on behalf of the constituents that elected them.
  13. With respect to the third factor, a strong argument can be made that the third factor is also satisfied because: 1) the court’s denial of the temporary restraining order did result in an irreversible or meaningful shift in the relationship between the parties; and 2) the effect of the denial is not of a modest temporal duration.
  14. Calvary also says that public officials do not have free reign to curtail individual constitutional liberties during a public health emergency.
  15. In checking to see where the status of the case is, I do not see an appeal filed as of yet. The decision came down on February 22, 2021, and so an appeal may yet happen. If I am on the plaintiff’s side, I definitely appeal the denial of the TRO. There would be a good chance that the First Circuit would hear the matter because of the applicability of the Calvary factors coming down on the side of the plaintiffs. If it got to the Supreme Court of the United States, I wouldn’t be afraid to go before them as this is the type of case they may prove very receptive to for a variety of reasons. Keep in mind, persons with disabilities have done very well outside of the employment context and the title II and Rehabilitation Act claims here are very strong. Also, this configuration of the United States Supreme Court enjoys letting other branches of government know when they have gone too far. Finally, fundamental constitutional rights are involved here, and I like the strength of the equal protection arguments as well.

Today’s blog entry deals with two different cases and both of them deal with standing. The first case, Smith v. Golden China of Redwing, Inc., decided by the Eighth Circuit on February 17, 2021, which can be found here185186201204204, is the appeal of a case that we blogged on previously, here186187202205205. We won’t spend a lot of time on Smith. Suffice to say, that the Eighth Circuit dismisses the case without prejudice because they found that the plaintiff’s allegations of intent to return were not shown with sufficient specificity even after discovery occurred. For standing to be had, specificity is needed and not general and conclusory statements, especially after discovery has occurred.

The second case is Langer v. Manny Moe and Jack decided by the Northern District of California on January 15, 2021, which can be found here187188203206206. Richard Hunt previously wrote a summary of this case on his blog. As readers of my blog know, it isn’t unusual for me to blog on something that Richard has already blogged on if I feel like I can offer a different perspective. This is one of those situations. The facts of Langer are pretty straightforward. What you have here is a hard of hearing individual who went to the Pep Boys website. The website had videos but no captioning. The hard of hearing individual sues because he is not able to access the videos and thereby obtain the full use and enjoyment offered by Pep Boys with respect to its facilities, goods, and services. Pep Boys defends on the grounds that plaintiff’s claims were mooted by the launch of an entirely new website. They also defended on the grounds that the plaintiff lacked standing. The court finds that the claims were not moot but that the plaintiff lacked standing for the reasons to be explored below. As usual, the blog entry is divided into categories and they are: case is not moot; standing; and thoughts/takeaways. Of course, the reader is free to concentrate on any or all of the categories.

 

I

Case Is Not Moot

 

  1. Courts are more reluctant to find that in ADA plaintiff’s claims are mooted where the alleged barriers are not structural in nature v. when they are structural in nature because nonstructural barriers are more likely to recur.
  2. The Supreme Court has carved out an exception to mootness for acts that are capable of repetition yet evading review.
  3. In the case of a website lacking closed captioning for their videos, a defendant could easily remove any particular video immediately after a lawsuit is filed in order to moot the plaintiff’s claim. Then, the same defendant could also continue to upload such videos with impunity or fail to implement adequate safeguards to prevent future violations.
  4. When considering whether a violation is likely to recur, courts need to consider the bona fides of the express intent to comply, the effectiveness of the discontinuance, and the character of past violations.
  5. While it is true that testimony from Pep Boys indicated that Pep Boys has been developing an updated website for 18 months prior to beginning this litigation and that Pep Boys undertook extensive effort to ensure its website complied with WCAG, that testimony lacked some key information, such as: 1) the testimony was that the previous website was WCAG compliant and yet Pep Boys conceded that the video the plaintiff viewed on the old website did not have closed captioning; 2) the testimony did not explain whether uploading that video was a one time lapse in an otherwise compliant policy and if so, why Pep Boys failed to identify it; 3) the testimony did not say whether or how many other videos lacked closed captioning prior to September 2020, so there is no evidence regarding Pep Boys history of violations or lack thereof; 4) Pep Boys did not present any argument or evidence regarding WCAG standards, such as a declaration from an ADA consultant with expertise in WCAG standards; 5) it is unclear what specialized knowledge the person testifying had with ‘WCAG compliance, particularly since Pep Boys did not explain the relevant WCAG standards; and 6) website compliance with WCAG standards is informative but not dispositive of whether it violates the ADA.

 

II

Standing

 

  1. Ninth Circuit case law establishes that an ADA plaintiff may establish standing either by demonstrating deterrence or by demonstrating an injury in fact coupled with an intent to return to a noncompliant facility.
  2. On their own, websites are not places of public accommodations in the Ninth Circuit per Cullen188189204207207, which was affirmed on appeal here189190205208208. We discussed the Cullen oral argument at the Ninth Circuit in this blog entry190191206209209.
  3. Robles191192207210210, which we discussed here and is the famous Domino’s pizza case that United States Supreme Court denied cert. for, held that websites and applications are covered by the ADA to the extent there is a nexus between the website and the physical location. That is so long as there is a nexus between independent physical locations and its website or web based mobile app, discriminatory barriers impeding access to goods and services can give rise to an injury under the ADA.
  4. A plaintiff who fails to allege any connection between the website barriers and a physical location does not have an ADA claim. See this blog entry192193208211211.
  5. Plaintiff does not explain how the alleged violations have a nexus to Pep Boys physical locations. For example, plaintiff does not allege that he intended to visit a Pep Boys location and could not because the website was not accessible. He also did not represent that he was trying to use the website to order goods or services from Pep Boys physical locations. Rather, he merely suggested that the website’s videos are themselves a service that he was prevented from accessing. The claim doesn’t fly because case law makes clear that websites and the services offered on them are not public accommodations absent a nexus to a physical location. So, plaintiff’s allegations that he has difficulty watching a video on Pep Boys website is not sufficient by itself to allege injury under the ADA.

 

III

Thoughts/Takeaways

 

  1. Courts are beginning to fight back against the serial plaintiff, whether architectural drive-by or those who surf websites.
  2. General statements and conclusory statements dealing with a plaintiff’s intent to return are not cutting it in these two cases. In Red Wing, plaintiff testified that he didn’t even like Chinese food and wasn’t planning on going back unless the lawyer he works with directed him to do so.
  3. Just what is a gateway is a bit of a mess. The courts are all over the place as to when a sufficient nexus exist or not. In Langer, you had a hard of hearing individual but without specific allegations about how that hard of hearing individual wanted to use Pep Boys himself, his claim failed.
  4. As I have mentioned here193194209212212 and here194195210213213, I don’t believe the gateway theory for website accessibility will prove to be the ultimate rule in the end. Instead, I believe you are going to be looking at whether it is the of the type of business listed in 42 U.S.C. §12181(7), the ScribD approach, discussed here195196211214214, because of the some 23 different statements made by the United States Supreme Court in South Dakota v. Wayfair, which we discussed here196197212215215.
  5. Mootness in the absence of an expert that can testify as to how the website is complying with WCAG standards may be very difficult to pull off with respect to websites.
  6. WCAG standards continues to be the gold standard. The legal standard is meaningful accessibility. There are times when the WCAG standards still may not result in meaningful accessibility. You may need expert testimony here.
  7. The court puts it well when it says that website compliance with WCAG standards is informative but not dispositive of whether it violates the ADA. On this question, we are still waiting to see what the 11th Circuit will say in the Winn-Dixie case, which has been under review for quite some time now and no one knows how much longer they will take.
  8. If you have videos, make sure they are captioned. Otherwise, you are a sitting duck for litigation.

Today’s blog entry comes to me courtesy of Richard Hunt, who in his blog will often do many briefs of several cases at once. He focuses on title III and the Fair Housing Act, especially from the defense side. However, he did mention our case of the day in one of his blogs, and I thought I go into more depth on it. So, our case of the day is Martinez v. County of Alameda185189210214211 decided on January 12, 2021 by the Northern District of California and written by Judge Hixson. The case involves a blind individual who asked for help with respect to filling out a fictitious name form because she was blind. When the help was refused, she filed suit. As usual the blog entry is divided into categories, which track how the case was laid out. The categories are: facts; title II overview; facially neutral policies; fundamental alteration/undue burden; deliberate indifference; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

On March 29, 2019, Martinez went to the Alameda County Clerk-Recorder’s Office to file a fictitious business name statement for her new small business. Compl. ¶ 13, ECF No. 1. Prior to her visit, she downloaded the form from the acgov.org website and completed the fillable fields using screen access software. Id. ¶¶ 14-15. Because she is blind, she obtained help at home in manually signing the document’s signature line. Id. ¶ 16.

At the Clerk-Recorder’s office, Martinez spoke with an agent at the counter, who told her the form had checkboxes for “LLC” and for “individual,” and that Martinez had checked “individual” and entered her name in that area but had elsewhere indicated she was seeking a fictitious business name for an LLC. Id. ¶ 17. The employee informed Martinez that she would have to check the box for “LLC,” cross out her own name where she had written it and write in the name of her LLC in the relevant area. Id. Martinez asked the employee to assist and enter the information on the form because she was blind, but the employee said she could not assist because it was a legal document that must be completed by the business owner. Id. ¶¶ 18-19. Martinez explained that she herself was the business owner and that she was asking for assistance because she was unable independently to fill out the paper form. Id. ¶ 20. After the employee still refused to assist her, Martinez asked to speak with a supervisor but was told no supervisor was present and she would have to wait to speak with one. Id. ¶ 22. After waiting 45 minutes, Martinez again asked when she might expect to speak with a supervisor, but the employee told her there was still no supervisor available and that she would no longer discuss Martinez’s need for assistance. Id.

Martinez continued to stand at the counter waiting for a supervisor for approximately 20 more minutes. Id. ¶ 23. Finally, Defendant Maria Laura Briones, a supervisor at the Clerk-Recorder’s office, arrived and told Martinez no one could assist because the office required legal documents such as the fictitious business form to be filled out by the business owner. Id. ¶¶ 7, 23. Martinez again explained that she was the business owner and would be completing the form, but she required assistance because she could not complete the form herself. Id. ¶ 24. After Briones again refused her request, Martinez asked under what legal authority she was refusing to assist. Id. ¶ 25. Briones left to speak with Defendant Eva He, the Assistant Clerk-Recorder, and then returned to say that He confirmed no one from the Clerk-Recorder’s office would assist Martinez in completing her form. Id. ¶¶ 6, 26. When asked if He cited any authority for that decision, Briones said there was no legal authority, that she would no longer speak to Martinez, and then walked away. Id. ¶ 26. Martinez left without filing the form. Id. ¶ 27.

On November 14, 2019, Martinez wrote to Defendant Melissa Wilk, the Alameda County Auditor-Controller/Clerk-Recorder, and Alameda County, through its counsel, requesting a modification to the policy denying assistance to blind persons at the Clerk-Recorder’s office. Id. ¶ 30. Through counsel, Defendants responded that any assistance in filling out forms constituted legal advice and would not be provided. Id. ¶ 31

Martinez filed suit and the County of Alameda put forward a motion to dismiss.

II

Title II Overview

  1. 42 U.S.C. §12132186190211215212 provides that no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, program, or activities of the public entity, or be subjected to discrimination by any such entity.
  2. 28 C.F.R. §35.130187191212216213 provides that public entities have to make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability absent a showing of a fundamental alteration in the nature of the service, program, or activity.
  3. To state a claim for discrimination, Martinez has to show: 1) she is a person with a disability; 2) she is otherwise qualified/qualified; 3) she was excluded from participation in, denied the benefits of, or otherwise subjected to discrimination with respect to Alameda County’s services, programs, or activities; and 4) the inclusion, denial of benefits, or discrimination she suffered was by reason of her disability.
  4. No dispute exists as to Martinez being blind and being an otherwise qualified/otherwise qualified individual with a disability. The argument is over whether the discrimination was by reason of her disability. In particular, the County of Alameda claims that their policy is a neutral policy, and therefore no discrimination occurs.

II

Facially Neutral Policies

  1. Facially neutral policies can violate the ADA when those policies unduly burden persons with disabilities even when those policies are consistently enforced.
  2. Martinez pled sufficient facts demonstrating that the County of Alameda’s policy of refusing to assist anyone in completing paperwork disproportionately burdened her as a blind person and denied her meaningful access to Alameda County’s benefits and services.
  3. The exclusion, denial of benefits, or discrimination was by reason of her disability and therefore, constituted a violation of title II of the ADA.
  4. Cases cited by the County of Alameda did not involve a public entity’s failure to effectively communicate information to a person with a disability nor did they involve its policy of refusing auxiliary aids or services necessary for effective communication as alleged here.
  5. Martinez did not allege that the discrimination was because they charged her for filing a fictitious business name, a charge everyone has to pay, rather she alleged that they discriminated against her because of her exclusion from an equal opportunity to participate in, and enjoy the benefits of the County of Alameda’s services, program, and activities.
  6. The County of Alameda simply failed to provide authority or persuasive argument to overcome either: 1) the Ninth Circuit’s own binding precedent regarding facially neutral policies that disproportionately affect individuals with disabilities; or 2) the ADA regulatory requirements to provide auxiliary aids (28 C.F.R. §35.104188192213217214), and services, such as a qualified reader or another effective method, so that the form could be made available to a blind individual.

III

Fundamental Alteration/Undue Burden

  1. Public entities must take appropriate steps to ensure that communications with applicants, participant, and members of the public with disabilities are as effective as communication with others.
  2. Public entities are also required to furnish appropriate auxiliary aids and services where necessary to afford an individual with a disability an equal opportunity to participate in and enjoy the benefits of their services, program, and activities.
  3. Fundamental alteration/undue burthen are affirmative defenses for which the public entity asserting the defense bears the burden of proof.
  4. Determining whether a modification is reasonable or results in a fundamental alteration is an intensively fact-based inquiry.
  5. Case law and the final implementing regulation for title II of the ADA makes clear that whether a request for policy modification auxiliary aid or service results in a fundamental alteration or an undue burden is a fundamentally factual question inappropriate for disposition prior to discovery.
  6. The decision that proposed modification or auxiliary aid or service would result in a fundamental alteration to a public entities program, service, or activity, or results in an undue financial or administrative burden must be made by the head of the public entity or his or her designee after considering all resources available for use in the funding and operation of the service, program, or activity. It also has to be accompanied by a written statement of the reason for reaching that conclusion. 28 C.F.R. §35.164189193214218215.
  7. Even if a fundamental alteration or an undue burden exists, the public entity must still take any other action that would not result in such an alteration and that ensures to the maximum extent possible that individuals with disabilities receive the benefits or services provided by the public entity.
  8. So even if an individual with a disability requested accommodation is not feasible, the public entity still has to take any action to establish equality, or as close as possible to that, between persons with disabilities and individuals without disabilities using the public entity’s services.
  9. There was no form to alter as the plaintiff was seeking help in filling out the form. So, the argument that helping the plaintiff fill out the form would violate the California Government Code’s prohibition on altering records doesn’t wash.
  10. The County of Alameda’s argument that to help the plaintiff fill out the form would constitute the unauthorized practice of law does not wash either because long-standing California precedent holds that acting as a scrivener to perform the clerical service of filling in the blanks on a particular form in accordance with the information furnished by someone is not the unlicensed practice of law in California.

III

Intentional Discrimination/Deliberate Indifference

  1. To seek injunctive relief under title II, a plaintiff only has to allege that she was denied meaningful access to a public entity’s program, services, or activities.
  2. Getting monetary damages under title II of the ADA does involve a showing that the defendant’s conduct constituted deliberate indifference.
  3. Deliberate indifference requires both knowledge that a harm to a federally protected right is substantially likely and the failure to act upon that likelihood.
  4. Knowledge that a harm to a federally protected right is substantially likely is automatically satisfied where the need for such an auxiliary aid or service is obvious or where an auxiliary aid or service is required by statute or regulation.
  5. A qualified reader or other effective method of making the County of Alameda’s paper form available to the plaintiff, or another similar service or action, is explicitly sanctioned by regulation, 28 C.F.R. §35.104190194215219216.
  6. Once a public entity is put on notice of the need for an auxiliary aid or service, a public entity must undertake a fact specific investigation to determine an appropriate aid or service. The particular service will vary in accordance with the method of communication used by the individual; the nature, length, and complexity of the communication involved; and the context in which the communication at taking place. Don’t forget about this blog entry191195216220217.
  7. When determining what auxiliary aids or services are necessary, a public entity must give primary consideration to the requests of individuals with disabilities per 28 C.F.R. §35.160192196217221218(b)(2).
  8. A public entity may not merely speculate that a suggested auxiliary aid or service is not feasible but must determine what auxiliary aids or services are necessary based upon the information gathered from the individual with the disability and, where needed, from qualified experts.
  9. A public entity may not require an individual with a disability to be accompanied by another person. For that matter, it cannot rely upon the accompanying person to facilitate communication with an individual with a disability. 28 C.F.R. §35.160193197218222219(c).
  10. While it is absolutely true that deliberate indifference requires a public entity to act more than negligently, its belief that it was acting in good faith is not sufficient by itself to defeat an allegation that it acted deliberately in failing to adequately investigate or in refusing to provide a necessary auxiliary aid or service.
  11. Plaintiff alleged that the only auxiliary aid or service offered by the County of Alameda was one specifically prohibited by 28 C.F.R. §35.160194198219223220(c), i.e. reliance on a person accompanying her.
  12. The County of Alameda has not alleged any evidence that it undertook any fact specific investigation to determine an appropriate aid or service for the plaintiff. Rather, the County of Alameda merely provides speculative and conclusory assertions that her requested aid or service (being provided a qualified reader or scribe), was not feasible.
  13. Since plaintiff has properly alleged a claim under title II of the ADA, the derivative ADA title V and state law claims survive as well.

IV

Thoughts/Takeaways

  1. People with disabilities, including myself, are business owners.
  2. Undue burden/fundamental alteration is an affirmative defense and the burden is on the public entity alleging it.
  3. The amendments to the ADA mean that the ADA term is “qualified,” rather than the Rehabilitation Act term, “otherwise qualified.” The meaning of the two terms are identical.
  4. Facially neutral policies do not automatically get a pass.
  5. A person does not have to be Deaf, deaf, or hard of hearing to benefit from the effective communication regulations. Here, the person was blind. Also, as an FYI, the hearing loss community disfavors the term, “hearing impaired.”
  6. Unlike title III, the title II effective communication rule requires primary consideration be given to the person with a disability preferred mode of communications.
  7. Filling out a form is communication. That is, an individual is trying to understand what is being communicated to him or her in writing.
  8. You don’t see it litigated a lot, but it is noteworthy that the court cites to the Code of Federal Regulation requiring a public entity’s CEO to sign off on any situation where there is a claim of undue burden or fundamental alteration.
  9. A defendant is going to have a hard time prevailing on a motion to dismiss where they argue that a fundamental alteration/undue burden is involved.
  10. Undue burden is going to be extremely difficult to show because you look to the entire resources of the public entity. It is more likely that fundamental alteration will be an easier defense. While it may be an easier defense than undue burden, that does not mean it would be an easy defense. You basically need to show that the operations of your public entity’s program, services, or activities is going to be turned upside down.
  11. Even if you can show somehow that an undue burden or fundamental alteration exist, you are going to have to do everything short of that to figure out a win-win solution.
  12. Title II of the ADA does not have an interactive process requirement because that is a title I construct. All of the titles of the ADA do require an individualized analysis. See PGA Tour v. Martin195199220224221. This case clearly illustrates that the interactive process is something that title II entities should use even if theoretically they don’t have to. An interactive process between the parties may have enabled a win-win situation if it was used. All public entities, and for that matter I think every entity covered by the ADA, needs to be trained on the do’s and don’ts of the interactive process196200221225222.
  13. Under this opinion, a harm to a federally protected right is substantially likely is automatic if the need for an auxiliary aid or service is obvious. What does obvious mean? As a preventive law matter, you might look to “readily apparent,” with respect to the two inquiries that may be asked when someone is representing their dog as a service animal. See this blog entry for example197201222226223.
  14. The title I term is “reasonable accommodation,” while the title II and title III terms are, “reasonable modifications.” The two terms are identical in their meaning.
  15. Any entity covered by the ADA may want to think twice about denying a reasonable accommodation/modification where that accommodation/modification is specifically listed as a possibility in the Code of Federal Regulations. Same argument where a covered entity insists that a person do something that the regulations say you cannot insist upon.
  16. Even if title II of the ADA doesn’t require an interactive process, it does require a fact specific investigation to determine the appropriate aid or services. How do you determine the appropriate aid or services is hard for me to understand without engaging in the interactive process. I suppose it can be done, but it would not lead to the best results.
  17. Good faith is a defense to deliberate indifference but it is not taken at face value. You have to look beyond face value to the facts. Also, deliberate indifference, which we discussed here198202223227224, is not necessary for injunctive relief.
  18. The unauthorized practice of law argument is interesting. It didn’t work here because the person recording the information is not exercising independent legal discretion.
  19. Exhaustion of administrative remedies is not required for title II claims.
  20. It is mind-boggling to me the amount of money that was spent on litigating this when the accommodations/modifications were so simple and costs so little.

First, congratulations to the Tampa Bay Buccaneers for winning the Super Bowl Sunday. What an amazing record Tom Brady has developed over the years. Between the Rays, the Lightning, and the Buccaneers, Tampa Bay has become quite the sports town.

 

Turning to the blog entry of the day, last week I attended a webinar as part of the African-American Conference on Disabilities. It was also hosted with the Arizona Center for Disability Law, which is the protection and advocacy group for the State of Arizona. They had an excellent panel consisting of an EEOC attorney, an attorney from the Arizona Center for Disability Law, and a plaintiff employment attorney. The panel talked about title I issues in the context of Covid-19. What set this webinar apart from other webinars that I have attended was that it focused on questions and answers from the audience and much less so on material presented by the attorneys, though there was some of that. With permission, I wrote down all the questions that were asked and received permission to post the questions here, without naming names of course, and turn it into a blog entry. I also added two questions of my own. So, let’s play 21 questions. Finally, there are no categories to this blog entry, rather there are just questions posed and my answers.

 

  1. May an employer require vaccinations? Answer: yes, but it gets complicated. Unless you are a healthcare entity, most management labor and employment lawyers are recommending that you focus on encouraging vaccinations rather than on mandating vaccinations. You can require vaccinations, but you will have to deal with requests for accommodations if a person has a disability that makes getting vaccinated an issue or if the person has a religious objection based upon a sincerely held belief. An open question is just how much encouragement can you offer before it turns into something that is not voluntary, especially if you have a type of wellness plan where the EEOC has said that incentives can only be offered if they are de minimis. A variety of groups are asking the EEOC to clarify when encouragement turns into something involuntary with respect to Covid-19 vaccination.
  2. Do you have to accommodate an employee who does not have a disability but who has a high risk family member? Answer: no. The ADA certainly protects people who associate with people with disabilities even though they do not have a disability themselves. However, those provisions do not require that the person who associates with the person with a disability be reasonably accommodated. That said, we have discussed, such as here185185197198198208, situations where an employer ran into trouble because they did not even engage in the interactive process with a person who associates with a person with a disability. So while you do not have to reasonably accommodate a person without a disability who associates with someone who does have a disability, you do want to engage in the interactive process with an individual to see if something can work. The EEOC also recommends that approach as well.
  3. Is remote work a reasonable accommodation for a person being called back into the office where they have a disability that puts them at risk of Covid-19 or associates with someone with a disability? Answer: see above for the situation where a person associates with someone with a disability. With respect to an individual who has a higher risk if they get Covid-19, the question is going to come down to whether essential functions of the job includes attendance or whether attendance is just a personal preference. Before Covid-19, courts were usually holding that attendance was assumed to be an essential function of the job. Now, that argument simply can’t be made in many cases because the essential functions of the job are being done remotely for quite a period of time already. With respect to figuring out whether attendance is an essential function of the job, I always like to look to the Samper factors, which we discussed here186186198199199209. The better data an employer has that actually working in the office has some added advantage over working remotely, the better off the employer is going to be in arguing that attendance is an essential function of the job and not a personal preference.
  4. Can you treat Covid-19 the same way as you do the flu or mononucleosis. Answer: Well, the question really is to my mind whether Covid-19 is a disability. It very well may be in many cases. A disability is defined under the ADA, 42 U.S.C. §12102187187199200200210(1), as a physical or mental impairment that substantially limits one or more of life major activities, has a record of such an impairment, or is regarded as having such an impairment regardless of whether a physical or mental impairment actually exists. With the amendments to the ADA, it is quite possible that Covid-19 positivity would be a disability. The question is going to be whether the person is substantially limited in a major life activity as compared to most people in the general population. They very well might be. Another question is whether Covid-19 positivity would be a temporary disability not protected under the ADA. A disability of short duration can be an ADA disability. A preventive law step that I like to use is to borrow from the regarded as exception and ask whether the disability is both temporary AND minor. With Covid-19, you have a fair amount of Covid-19 long haulers. So, it can often be debatable whether the disability is temporary. Also, the disability may not be minor either. Again, the temporary and minor standard is something that I am borrowing from the regarded as exception as a matter of preventive law and using something for preventive law purposes is not the same as a legal standard. So where you have a person diagnosed with Covid-19, an employer definitely wants to engage in the interactive process for sure.
  5. Can you require a Covid-19 positive employee to work? Answer: Recently, OSHA came out with guidance on Covid-19, here188188200201201211. So, you definitely want to review that guidance before requiring a Covid-19 positive employee to work, particularly at a worksite.
  6. Can you just go ahead and fire a person who is positive for Covid-19? Answer: that would be a big mistake because Covid-19 positivity may very well be a disability as discussed above. It also may activate the FMLA as well, in addition to other laws passed recently to deal with the coronavirus crisis. Best bet is to engage in the interactive process and seek knowledgeable legal counsel with respect to the variety of laws that are activated by this situation.
  7. What is an undue hardship? Answer: in the title I area, an undue hardship can either be financial or logistical. With respect to financial, the entire resources of the employer are looked at. Accordingly, financial undue hardship is very difficult to show. With respect to logistical undue hardship, the best bet is to borrow the concept of fundamental alteration from title II and title III. In assessing logistical undue hardship, you are looking at whether the reasonable accommodation would fundamentally alter the nature of the position (which would lead to the conclusion that the employee is no longer qualified/otherwise qualified per the ADA), or fundamentally alter the employer’s operations. Remember, an employer does not have to reassign essential functions of any job to someone else. Marginal functions can get reassigned. Utilize the interactive process. If you get stuck, call the Job Accommodation Network, here189189201202202212.
  8. For employees who are deaf or hard of hearing, what about face shields and clear masks? Answer: the OSHA guidance talks about how these may be utilized for such employees. Regardless of whether you read lips, masks are a problem for the deaf and hard of hearing. If the person is a lip reader, it is obvious why masks are a problem. If the person is culturally deaf, masks are still a problem because the face is often used the get context for the signs. One problem you may run into is clear masks and face shields may not be medically rated the same as other kinds of masks that people wear. I just read an article on LinkedIn that Ford is developing a clear mask that can be certified as N95. Such a mask cannot come soon enough as far as I am concerned. Even so, employers are still under the obligation to figure out how they can effectively communicate with the deaf or hard of hearing employee. As a side note, do not use the term “hearing impaired,” as that term generally drives people in the deaf and hard of hearing community nuts. For example, nothing impaired with my hearing, rather it just doesn’t work the way a person with typical hearing does.
  9. Can you force someone onto FMLA rather than reasonably accommodate them? Answer: This is a topic that has come up in our blog before, such as here190190202203203213. Most people want to work. So, you are better off if you engage in the interactive process to see if the person can continue to do their essential functions of the job with or without reasonable accommodations rather than forcing them onto FMLA. If FMLA leave is the best choice after an interactive process, that is okay. However, forcing a person onto FMLA without an interactive process is risky.
  10. What if the employee is not your employee but works for a staffing company? Who has the obligation to accommodate the person? Answer: It is quite possible that both the staffing company and the company the person is working for have the reasonable accommodation obligations as joint employers. I know of one staffing company that takes a very aggressive stand in making sure that its employees are reasonably accommodated one way or the other. On a related note, last week we discussed the situation of where you had two companies that were so intertwined that the court held they were a single integrated employer, here191191203204204214.
  11. What if you have less than 15 employees but you took federal funds. Do you have to deal with federal disability nondiscrimination laws? Answer: yes. You will have to deal with §504 of the Rehabilitation Act of 1973, 29 U.S.C. §794192192204205205215, which has been held by the courts to apply to employment situations. The remedies available under that law include the full range of damages but not punitive damages. Injunctive relief and attorney fees are also possibilities as well. Keep in mind, taking federal funds to stay afloat through the coronavirus relief laws that were passed qualifies as taking federal funds. If an employee situation is involved, title I of the ADA would be the standard that would be used to figure out whether disability discrimination has occurred.
  12. How long are psychological evaluations valid for? Answer: this is something I see come up all the time in the educational setting, whether it be K-12, secondary, or postsecondary education. The question is what is the disability that you are dealing with. Many MH/LD disabilities are static. So if you are dealing with a disability that is static, requiring psychological evaluation to be current doesn’t make a lot of sense. You don’t want to be in a situation where you are requesting excessive documentation as that is something you are not allowed to do. You can of course receive documentation from healthcare professionals and other individuals to help assess the disability. I would be careful about insisting on current psychological evaluations just for the sake of the fact that the psychological evaluation is not current, especially where the disability is of the kind that doesn’t change much over time.
  13. Three secretaries are all working remotely but an employer requires a secretary that can’t come in to come in. Answer: definitely a potential problem. The first question I have is whether the secretary who is required to come in has a disability. If she does, then you need to engage in the interactive process to figure out if there is a win-win solution. If he or she does not and is associating with someone who does, the interactive process is highly recommended even though reasonable accommodations are not required. If it is the person with a disability who has a higher risk of Covid-19 that is being forced to come in and not the secretaries without a disability, then that is a problem.
  14. When should a person disclose a disability? Answer: this is a highly personal call. It depends on whether the disability is hidden or obvious. It also depends upon the type of employer. Certain employers may be more receptive than others. It is not unusual for a person with a disability to wait for the job offer and then start work before disclosing. Many people with disabilities may not have a choice but to disclose at the interview process. Employers must make reasonable accommodations for people with disabilities to access the interview process. Again, a real personal call. There is no obligation for the person with a disability to disclose. Whether a person with a disability discloses at all is something that I discussed in this blog entry that I posted on the Federal Bar Association blog, here193193205206206216. It is certainly a worthwhile read for understanding when a person with a disability decides to disclose. I can tell you from the legal side it is much better to disclose early because that way the employer is on notice. If they don’t know the person has a disability and there are performance issues, then the employer is not on the hook for what it did not know.
  15. Do I have the obligation to reassign duties that a person with a disability can’t do to other staff? Answer: marginal duties can be reassigned but you are under no obligation to reassign essential job functions.
  16. If a person can’t do the essential functions of their current job with or without reasonable accommodations, must the employer reassign that individual to a vacant position where they can do that job’s essential function with or without a reasonable accommodation? Answer: this entirely depends upon the Circuit you are in. In the Seventh Circuit, the answer is absolutely. In the 11th Circuit, the answer is no. That is, in the 11th Circuit you do want to allow the person with the disability to engage in the competitive process but you are not required to reassign that individual to a vacant position whose job they can do the essential functions with or without reasonable accommodation when they can no longer do their current job with or without reasonable accommodations. Eventually, this question will go up to the Supreme Court. My guess is that the Supreme Court would likely take the 11th Circuit approach, but you don’t know that for sure. That said, you can prevent a lot of problems if you engage in the interactive process and if you as the employer work with the person with the disability to figure out what the possibilities are even if you don’t go as far as reassigning the individual. I discussed this issue here.237207217
  17. Does the employee get the accommodation they want? Answer: no. The accommodation that gets given is the result of the interactive process. Whoever blows up the interactive process is the one that faces the consequences.
  18. What if an employee needs railings, but the employer offers a wheelchair instead? We just saw something similar in the blog entry that was just posted on understanding the ADA last week. Here, you may have two different titles at work. You may have title I with respect to the employee and you may have title III with respect to non-employees. Keep in mind, the applicable ADA architectural guidelines, ADAAG. There is no substitution for the interactive process. Be sure to get into the mindset of a person with a disability. There is a world of difference between railings and wheelchairs on a psychological level that you might want to consider.
  19. If I am an employee and need a reasonable accommodation and already have an attorney, do I copy in my attorney on the reasonable accommodation request? Answer: this is a matter of strategy for you to discuss with your attorney. There isn’t anything wrong with copying in the attorney but it does alert everyone to a more adversarial situation. You definitely want to work with your attorney on this. It is possible that the attorney might ghostwrite the reasonable accommodation request. What exactly happens here is going to depend upon the way the particular attorney wants to do it, the reputation of the employer, and you as the client. There isn’t a right answer per se to this question.
  20. Here is a question that I just thought of so as to make it 20 questions. I have an employee who must as part of their job deal with software as a service platforms that are not accessible to persons with disabilities. Since the software as a service platform is not mine, do I have the obligation to reasonably accommodate that employee? Answer: yes unless you can show an undue hardship (logistical or financial). If you are buying platforms from other companies for use by your employees, it would be a good idea to have indemnification/reimbursement provisions in that contract. Keep in mind, the ADA is a nondelegable duty, as we discussed here194194206207208218. So, the employer does have the obligation to reasonably accommodate that employee unless it can show an undue hardship. The gold standard but not the legal standard for Internet accessibility is WCAG 2-2.1 Level AA. The WCAG standard can be found here195195207208209219. The software as a service providers certainly need to be aware of those standards if they are not already so aware. Also, always engage in the interactive process.
  21. Here is another question I just thought of. I have an employee whose experience with the pandemic was not easy. The employee now wants to bring in emotional support animal to work. I thought emotional support animals were not protected by the ADA. Is that right? Answer: not exactly. While it is true under title II and title III of the ADA, such as we discusse d here196196208209210220, and for that matter the Air Carrier Access Act, under its most current regulations, as discussed here197197209210211221, the EEOC and title I of the ADA are silent. What you want to do, as we discussed here198198210211212222, is handle such a request the same way you would any request for reasonable accommodations. Then, engage in the interactive process to see if that is the only possibility that will work. There is a debate going on about whether the animal needs to be related to a specific essential function of the job or not. At the end of the interactive process and if nothing else works, then you may need to consider an emotional support animal. If the animal is a service animal under title II and title III regulations, the employer would be wise to allow the animal as a reasonable accommodation. Finally, preventive law means to look at the animal in terms of work performance and not in terms of how it relates to an essential job function, especially if it is a service animal.