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

 

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 The 11th Circuit in an unpublished decision affirmed that case.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

 

I

Why Plaintiff Justifiably Appealed the Lower Court Decision in NIX

 

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

 

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

 

II
The 11th Circuit Nix decision

 

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

 

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

 

III

Nix Takeaways

 

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

 

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

 

IV

Heck Facts

 

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

 

V

Heck Reasoning

 

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

 

VI

Heck Takeaways

 

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

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

 

I

Facts (Taken from Opinion)

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

II

What Happened at District Court Level (Taken from Opinion)

 

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

 

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

 

III

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

 

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

 

IV

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

 

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

V

Dissenting Opinion by Judge Lee

 

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

 

VI

 

Thoughts/Takeaways

 

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

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

 

I

Facts

 

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

 

II

Court’s Reasoning

 

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

 

II

 

Important Footnotes

 

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

 

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

 

III

Thoughts/Takeaways

 

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

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

 

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

 

I

Facts

 

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

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

 

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

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

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

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

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

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

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

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

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

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

II

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

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

III

Court’s Reasoning Monetary Damages

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

IV

Thoughts/Takeaways

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

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

 

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

 

I

Behr Facts

 

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

 

II

 

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

 

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

 

III

 

Behr Thoughts/Takeaways

 

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

 

 

Speaking of other preclusion and abstention doctrines…….

 

IV

 

Lund v. Cowan Facts

 

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

 

V

 

Mootness of Lund’s Claims

 

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

 

VI

 

Applicability of Sovereign Immunity

 

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

 

VII

 

Judicial Immunity Bars Lund’s ADA Claim

 

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

 

 

VIII

Lund Thoughts/Takeaways

 

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

On one of the local National Public Radio stations here in Atlanta metropolitan area, there is a show called Political Rewind. On that show, distinguished panelists (political consultants, former officeholders, political science professors, etc.), talk about what is going on in Georgia politics and nationally as well. Today, they were talking about Republicans in Georgia being very interested in emulating what the Governor of Florida has done with respect to parental rights laws so that people do not have to wear masks and not be subject to mask mandates. The question arises whether the ADA or the Rehabilitation Act can be used as a sword to stop such efforts. Matthew Dietz, some of whose cases I have blogged on in the past, is trying to do precisely that with a complaint filed on August 6, 2021, in the Southern District of Florida. So, what this blog entry is going to do is discuss the complaint and present some of my own thoughts. Of course for purposes of this blog entry, the allegations in the complaint are being taken as true. It remains for litigation to sort all of that out. As usual, the blog entry is divided into categories and they are: the parties; historical background for complaint;  key  allegations; ADA specific laws/regulation violated; Rehabilitation Act specific laws/regulation violated; and my thoughts/other points. It is hard to believe that the reader is not going to read the whole thing because it would be hard to make sense of it otherwise.

 

I

The Parties

 

  1. The complaint can be found here.
  2. The complaint is for injunctive relief pursuant to the Rehabilitation Act and the ADA as well as Florida law.
  3. Plaintiffs are various students with disabilities with a variety of different conditions, including: Down syndrome; asthma; autism spectrum disorder; hyperkplexia; chronic kidney disease; ADHD; learning disabilities; speech impairments; Edwards syndrome; intellectual disability; a student with a tracheostomy; and anxiety.
  4. The defendants are: Governor of Florida; Florida Department of Education; and various County School Boards.
  5. The defendants all receive federal funds.

 

II

Historical Background for Complaint

 

  1. On July 30, 2021, the Florida governor issued an executive order in response to several Florida school board considering or implementing mask mandates in their school districts. In that order, the Florida governor contended that wearing a mask is a limitation on a parent’s fundamental right to make health and educational decisions for their children.
  2. As part of that executive order, the Florida governor ordered that all rules of the Department of Health must at a minimum be in accordance with the Florida’s Parent Bill of Rights and protect parental rights to make decisions regarding masking of their children in relation to Covid-19.
  3. As a penalty for noncompliance, the Florida governor directed its Commissioner of Education to withhold state funds from school boards that failed to comply, including: state funds, discretionary grant funds, discretionary lottery fund, or any other funds specified for that purpose by the legislature.
  4. The Florida Department of Education has not extended funding for distance learning into the 2021-2022 school year.
  5. On June 29, 2021, the Governor of Florida signed into law the Parents Bill of Rights. That law prevents Florida from infringing on the fundamental rights of a parent to direct the upbringing, education, healthcare or mental health of the minor child.
  6. Districts who have asked if they could offer live synchronous or asynchronous instruction with the same curriculum as in-person instruction and the ability to interact with the student’s teacher and peers have been refused the ability to do so by the Florida Department of Education.
  7. Coronavirus cases are sky high in FL (not the words used in the complaint of course, but accurate).
  8. The US Department of Education has issued a roadmap for returning student to school safely, with the first priority being the health and safety of students, staff and educators.
  9. The CDC now recommends that masks should be worn indoors no matter what is the person’s vaccination status. The CDC and the American Academy of Pediatrics recommend universal masking in schools for anyone over the age of two.

 

III

Key Allegations

 

  1. IDEA, the ADA, and §504 impose an obligation on public schools to ensure that all children with disabilities have a free and appropriate public education in the most integrated and least restrictive environment.
  2. The Governor of Florida does not have the authority to threaten school districts with loss of funding when they protect their students with disabilities health and rights to be in an integrated learning environment.
  3. The order means that many IEP and 504 plans simply will not be able to be carried out.
  4. The order violates 28 C.F.R. §35.130(b)(3) by imposing criteria or methods of administration that defeat the purpose of laws upholding the rights of children with disabilities.
  5. The order violates the supremacy clause under the U.S. Constitution.
  6. By refusing to allow school districts to implement mask mandates, the Governor of Florida has placed a legal barrier for students with disabilities that prevents students with disability from returning to public schools.
  7. Virtual programs do not provide students with disabilities a free appropriate public education and there are no virtual programs available to those students who are on a modified curriculum.
  8. The Florida virtual school does not provide any classes for students who are on the Access Point curriculum (a curriculum often used for students with disabilities).
  9. Vouchers are not a viable alternative because when a parent except a voucher, they waive their right to a free appropriate public education. Also, parents must have the financial means to transport their child to a private school and pay the extra expenses not covered by the voucher. They also must find a private school willing to accept their disabled child.
  10. While all kids are at increased risk of Covid-19 due to the fact that anyone under 12 is not yet eligible to be vaccinated, children with disabilities are at an even more increased risk. For example, studies have shown that children with Down syndrome are 10 times more likely to be hospitalized and four times more likely to die if they get Covid-19 and that was before the Delta variant.

 

IV

ADA Specific Laws/Regulations Violated

 

  1. Failure to make reasonable modifications under the circumstances when required. (28 C.F.R. §35.130(b)(7); 34 C.F.R. §104.34(a).
  2. Excluding plaintiffs from participation in public education. (42 U.S.C. §12132; 28 C.F.R. §35.130; 34 C.F.R. §104.34(a)).
  3. Administering a policy that has the effect of subjecting qualified individuals with disabilities to discrimination on the basis of disability that also has the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the public entity’s program with respect to individuals with disabilities. (28 C.F.R. §35.130(b)(3)).
  4. Failing to permit a public entity to administer services, program, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities. (28 C.F.R. §35.130(d); 34 C.F.R. §104.34(a).
  5. Utilizing criteria or methods of administration that have the effect of subjecting qualified individuals with disabilities to discrimination on the basis of disability and/or perpetuating the discrimination of another public entity if both public entities are subject to common administrative control or agencies of the same State. (28 C.F.R. §35.130(b)(3)(i), (iii)).
  6. Failing to administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities (28 C.F.R. §35.130(d)).
  7. Preventing the district from providing a qualified individual with a disability with an aid, benefit, or service that is not as effective in affording equal opportunity to obtain the same result, to gain the same benefit, to read the same level of achievement that provided others. (28 C.F.R. §35.130(b)(1)(iii)

 

V

Rehabilitation Act Specific Laws/Regulations Violated

 

  1. 504 of the Rehabilitation Act.
  2. Failing to make reasonable modifications. (34 C.F.R. §104.34(a)).
  3. Excluding plaintiffs from participation in public education. (34 C.F.R. §104.34(a)).
  4. Failing to make its services, program, and activities readily accessible individuals with disabilities. (34 C.F.R. §104.34(a)).
  5. Failure to provide a free appropriate public education. (34 C.F.R. §104.33).

 

VI

 

My Thoughts/Other Points

 

  1. Florida Educational Equity Act claims also alleged.
  2. Causation under the Rehabilitation Act is, “solely by reason of.” This is an important distinction from the ADA’s “on the basis of,” especially after Bostock as we discussed here.
  3. The complaint is strictly for injunctive relief. That is probably due to the need to get around sovereign immunity.
  4. The ADA actually has nothing to do with a free appropriate public education. That said, the IDEA and the Rehabilitation Act by way of regulations, certainly do. Also, the ADA does have an integration in the least restrictive environment mandate per Olmstead.
  5. Plaintiffs have filed a motion for preliminary injunction, which has been hung up on procedural issues. Nevertheless, expect such a motion to be heard at some point.
  6. The lack of a distance-learning option may well be a very critical factor. In other places, distance-learning might be available. Whether such distance-learning would be sufficient to satisfy a free appropriate public education is another question.
  7. One wonders why employees of the various defendants are not filing with OSHA for unsafe workplaces especially since OSHA has said they will echo the CDC guidelines, which are certainly not being followed in Florida. One also wonders whether a similar approach to this case might not work for employees with disabilities utilizing the title I construct and the title I laws/regulations/guidances
  8. One also wonders why a constitutional law action is not part of the case. For example, there is no equal protection claim filed. I am sure there were strategic reasons for not doing that, but I don’t know what they were offhand.
  9. The Department of Education’s Rehabilitation Act regulations for preschool-12 can be found at 34 C.F.R. part 104.31-39.
  10. There is a reference to 29 U.S.C. §706 in the complaint. I’m wondering if that is not a typo because I cannot figure out what it refers to. 29 U.S.C. §706 refers to allotment percentages. I wonder if §705 was not meant instead with respect to how the Rehabilitation Act defines a person with a disability. Also, §504 the Rehabilitation Act is 29 U.S.C. §794 with the remedies provisions being 29 U.S.C. §794a.
  11. There is some case law out there that the auxiliary aids section of the ADA only applies to those with communication disabilities and not to disabilities in general.
  12. Anti-masks laws and rules are an issue throughout the South/Southwest. For example, Texas has such rules. Arkansas has a statute that the Governor of Arkansas has expressed regret about that law’s wide ranging impact and has suggested rolling it back with respect to schools being able to make their own calls to manage the Covid-19 pandemic. Both Arkansas and Texas are seeing huge surges in Covid-19. For that matter, the same is true for Georgia.
  13. Some technical concerns aside, what is happening here is a very creative approach that I believe stands a very good chance of success in light of the numerous data out there about how persons with disabilities in general have been suffering tremendously with respect to their education during the pandemic. Then, you throw in the Covid-19 pandemic, how it is spreading, and the CDC guidelines. The combination of both may well be very persuasive.
  14. This just in (8/18/2021). A similar lawsuit just filed in Texas here. My thanks to Stephen Meyer for sending it to me.

Back in July of 2020, I blogged on the case of Colton v. Fehrer Automotive, North America, LLC., here. That case explored the question of whether a 4’6” tall person has a disability under the ADA. The District Court threw the case out because the plaintiff did not allege any underlying reason for her being short and therefore, she did not have a disability under the ADA because she did not have a physical impairment. She appealed to the 11th Circuit and the 11th Circuit in a per curiam unpublished decision-decided July 21, 2021-, affirms. Since the facts were discussed in my prior blog entry, here, there isn’t any need for that to be a separate category in this blog entry. So, the categories for this blog entry are going to be: court’s reasoning no physical impairment; court’s reasoning no retaliation; and thoughts/takeaways. Since the blog entry is pretty short, you will probably want to read the whole thing.

 

I

Court’s Reasoning No Physical Impairment

 

  1. 29 C.F.R. §1630.2(h)(1) defines an impairment as any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems.
  2. Impairment does not include the physical characteristics such as eye color, hair color, left-handedness, or height, weight, or muscle tone that are within normal range and are not the result of a physiological disorder. 29 C.F.R. pt. 1630, App’x §1630.2(h).
  3. Plaintiff pled no facts suggesting that her height was due to a physiological disorder or condition.
  4. The court cited to two cases (one from the Eighth Circuit and one from the Sixth Circuit), holding that claims of obesity require an underlying physiological disorder or condition.
  5. The United States Supreme Court in Sutton v. United Airlines said that when reviewing an ADA claim employers are free to decide that physical characteristics or medical conditions not rising to the level of an impairment-such as one’s height, build, or singing voice-are preferable to others. While this statement is dicta, Supreme Court dicta gets treated separately from regular dicta. Further, this dicta also gets different treatment because it aligns with the ADA’s text and the EEOC’s regulations and interpretive guidance. So, claiming to be short without alleging any underlying physiological disorder is simply not enough to allege a disability under the ADA.
  6. The regarded as prong claim also fails because the plaintiff would have to show that the employer perceived her as having an ADA qualifying disability even if there was no factual basis for that perception. So, plaintiff would have to show that the employer regarded her as having a physiological disorder even if she did not have that physiological disorder. Nothing in the complaint or the attached exhibits even hint that the employer considered her height to be the result of a physiological disorder or condition.

 

II

Court’s Reasoning No Retaliation

 

  1. Plaintiff needed to allege facts suggesting that she has a good faith, objective believe that the employer’s conduct was unlawful.
  2. Plaintiff’s subjective thought that her employer was discriminating against a person with a disability by failing to accommodate her short height was simply not a reasonable viewpoint considering the given existing law.
  3. Sutton and the EEOC’s interpretive guidance clearly state that height is only a physical characteristic and not a disability without more.

 

III

Thoughts/Takeaways

 

  1. It is easy for people to think that Sutton no longer matters after the amendments to the ADA. Nothing could be further from the truth. While Sutton was overruled by the amendments with respect to mitigating measures, the amendments did not overrule how you go about figuring out whether working is a major life activity. The amendments also did not overrule the statement referenced in this decision about how physical characteristics as opposed to physical impairments, are not disabilities absent more.
  2. The line of cases saying that certain physical conditions require something more than the physical condition until now has basically focused on obesity. As a result of this case, it is fair game for employers to argue that a physical characteristic is involved and not a physical impairment and therefore, the burden is on the plaintiff to show that there is an underlying physiological disorder is behind the physical characteristic. After all, Sutton uses the term “such as,” before listing the physical characteristics. Therefore, it is possible that other physical characteristics might be subject to the underlying physiological disorder requirement beyond those specifically listed in Sutton.
  3. It doesn’t matter whether plaintiff believes on a subjective level that he or she has a disability in need of a reasonable accommodation that they made a reasonable accommodation request for if the law is clear that a physical characteristic requiring an underlying condition is involved. While I understand such an approach, as a practical matter, many employees are not going to realize the difference between a physical characteristic and a physical impairment, especially where the physical characteristic is on the border of normal range.
  4. What is normal range becomes an important question.
  5. For those who have dwarfism, this case does not present any worries as such individuals can show an underlying physiological disorder.
  6. The EEOC guidance on physical characteristics is taken directly from Sutton.
  7. While the amendments say the regarded as prong does not require perception of a substantial limitation on a major life activity, it still does require perception of a physical or mental impairment.
  8. A lesson here is that whenever you are drafting a complaint involving disability discrimination, be sure to allege IN DETAIL the physical impairment and how it substantially limits a major life activity. Be sure to go beyond physical characteristics if you can, especially if it isn’t obvious that a physical impairment and not a physical characteristic is involved.

July 26 was the 31st anniversary of the ADA. As17 year old daughter would say, “Yeah!!!!!

 

Today’s blog entry deals with whether long-haul Covid-19 can be a disability under the ADA, §504 of the Rehabilitation Act, and §1557 of the Affordable Care Act. I have been saying for some time that long-haul Covid-19 may very well be a disability depending upon the circumstances. We now know from this guidance put out by DOJ and HHS, here, that I was absolutely on the right track. This blog entry doesn’t have the usual categories associated with it. What I have done is I have lifted verbatim the guidance and then have a thought/takeaways section afterwards. You may also see references to numbers. When I cut and pasted, those references did not show up. However, you can find the references associated with those numbers in the original guidance linked to above. The blog entry is really short, so I think you are going to want to read the whole thing.

 

  1. What is long COVID and what are its symptoms? According to the Centers for Disease Control and Prevention (CDC), people with long COVID have a range of new or ongoing symptoms that can last weeks or months after they are infected with the virus that causes COVID-19 and that can worsen with physical or mental activity. Examples of common symptoms of long COVID include:
  • Tiredness or fatigue
  • Difficulty thinking or concentrating (sometimes called “brain fog”)
  • Shortness of breath or difficulty breathing
  • Headache
  • Dizziness on standing
  • Fast-beating or pounding heart (known as heart palpitations)
  • Chest pain
  • Cough
  • Joint or muscle pain
  • Depression or anxiety
  • Fever
  • Loss of taste or smell

 

This list is not exhaustive. Some people also experience damage to multiple organs including the heart, lungs, kidneys, skin, and brain.

 

Thoughts/takeaways: All of the items here would be physical or mental impairments under the ADA, §504, or §1557. Of course, that doesn’t answer the question of whether a person is a person with a disability because they must also be substantially limited in a major life activity, discussed below.

 

  1. Can long COVID be a disability under the ADA, Section 504, and Section 1557? Yes, long COVID can be a disability under the ADA, Section 504, and Section 1557 if it substantially limits one or more major life activities.9 These laws and their related rules define a person with a disability as an individual with a physical or mental impairment that substantially limits one or more of the major life activities of such individual (“actual disability”); a person with a record of such an impairment (“record of”); or a person who is regarded as having such an impairment (“regarded as”). A person with long COVID has a disability if the person’s condition or any of its symptoms is a physical or mental impairment that substantially limits one or more major life activities.

 

This guidance only addresses the actual disability part of the definition of disability and not the regarded as and record all prongs . It does not cover other definitions of disability or eligibility requirements such as those necessary to qualify for Federal benefit programs under Social Security.

 

Thoughts/takeaways: While the guidance does not address the record of or regarded as prongs of the disability definition, that does not mean those prongs can be ignored.

 

  1. Long COVID is a physical or mental impairment A physical impairment includes any physiological disorder or condition affecting one or more body systems, including, among others, the neurological, respiratory, cardiovascular, and circulatory systems. A mental impairment includes any mental or psychological disorder, such as an emotional or mental illness. Long COVID is a physiological condition affecting one or more body systems. For example, some people with long COVID experience:
  • Lung damage
  • Heart damage, including inflammation of the heart muscle
  • Kidney damage
  • Neurological damage
  • Damage to the circulatory system resulting in poor blood flow
  • Lingering emotional illness and other mental health conditions

 

Accordingly, long COVID is a physical or mental impairment under the ADA, Section 504, and Section 1557.

 

Thoughts/takeaways: All of the items here would be physical or mental impairments under the ADA, §504, or §1557. Of course, that doesn’t answer the question of whether a person is a person with a disability because they must also be substantially limited, discussed immediately below.

 

  1. Long COVID can substantially limit one or more major life activities “Major life activities” include a wide range of activities, such as caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, writing, communicating, interacting with others, and working. The term also includes the operation of a major bodily function, such as the functions of the immune system, cardiovascular system, neurological system, circulatory system, or the operation of an organ. The term “substantially limits” is construed broadly under these laws and should not demand extensive analysis. The impairment does not need to prevent or significantly restrict an individual from performing a major life activity, and the limitations do not need to be severe, permanent, or long-term. Whether an individual with long COVID is substantially limited in a major bodily function or other major life activity is determined without the benefit of any medication, treatment, or other measures used by the individual to lessen or compensate for symptoms. Even if the impairment comes and goes, it is considered a disability if it would substantially limit a major life activity when the impairment is active.

 

Long COVID can substantially limit a major life activity. The situations in which an individual with long COVID might be substantially limited in a major life activity are diverse. Among possible examples, some include:

 

  • A person with long COVID who has lung damage that causes shortness of breath, fatigue, and related effects is substantially limited in respiratory function, among other major life activities.
  • A person with long COVID who has symptoms of intestinal pain, vomiting, and nausea that have lingered for months is substantially limited in gastrointestinal function, among other major life activities.
  • A person with long COVID who experiences memory lapses and “brain fog” is substantially limited in brain function, concentrating, and/or thinking.

 

  1. Thoughts/takeaways: This particular section of the guidance bears repeating:

 

“The term “substantially limits” is construed broadly under these laws and should not demand extensive analysis. The impairment does not need to prevent or significantly restrict an individual from performing a major life activity, and the limitations do not need to be severe, permanent, or long-term. Whether an individual with long COVID is substantially limited in a major bodily function or other major life activity is determined without the benefit of any medication, treatment, or other measures used by the individual to lessen or compensate for symptoms. Even if the impairment comes and goes, it is considered a disability if it would substantially limit a major life activity when the impairment is active.”

 

I have mentioned previously in my blog numerous times that as a preventive law measure, I like to ask myself the question whether the impairment, assuming it is temporary, is both transitory and minor. If the temporary impairment is both transitory and minor, you most likely have a disability under the actual disability prong even if the disability is temporary. Similarly, for the same reasons, if the disability goes longer than six months you most likely have an actual disability under the ADA. Again, the six months and transitory and minor approaches are preventive law and not a legal standard. Also, that substantially limits should not demand extensive analysis in most situations means that any request for documentation needs to be narrowly focused and not a fishing expedition. Finally, mitigating measures, with the exception of glasses, do not get factored into the question of whether a person has a disability. On the other hand, mitigating measures do come into play with respect to figuring out what reasonable accommodations are on the table.

 

 

  1. Is long COVID always a disability? No. An individualized assessment is necessary to determine whether a person’s long COVID condition or any of its symptoms substantially limits a major life activity. The CDC and health experts are working to better understand long COVID.

 

Thoughts/takeaways: Readers of my blog know that an individualized analysis is always required when it comes to ADA issues.

 

  1. What rights do people whose long COVID qualifies as a disability have under the ADA, Section 504, and Section 1557? People whose long COVID qualifies as a disability are entitled to the same protections from discrimination as any other person with a disability under the ADA, Section 504, and Section 1557. Put simply, they are entitled to full and equal opportunities to participate in and enjoy all aspects of civic and commercial life.

 

For example, this may mean that businesses or state or local governments will sometimes need to make changes to the way that they operate to accommodate a person’s long COVID-related limitations. For people whose long COVID qualifies as a disability, these changes, or “reasonable modifications,” may include:

  • Providing additional time on a test for a student who has difficulty concentrating
  • Modifying procedures so a customer who finds it too tiring to stand in line can announce their presence and sit down without losing their place in line
  • Providing refueling assistance at a gas station for a customer whose joint or muscle pain prevents them from pumping their own gas
  • Modifying a policy to allow a person who experience dizziness when standing to be accompanied by their service animal that is trained to stabilize them

 

Thoughts/takeaways: There are millions and millions of reasonable accommodations for specific disabilities. Always remember the do’s and don’ts of the interactive process, which we discussed here. Also, call the Job Accommodation Network, here, if you are stuck or looking for other ideas. If you are an entity involved in tests associated with licensing, don’t forget about complying with §309, 42 U.S.C. §12189, of the ADA. Also, Covid-19 and long-haul issues are coming for you if it hasn’t already.

 

  1. What federal resources are there for people with symptoms of long COVID?
  • The Office for Civil Rights of the Department of Health and Human Services (HHS) has the following page on civil rights and COVID-19: https://www.hhs.gov/civil-rights/for-providers/civil-rights-covid19/index.html. o If you believe that an entity covered by HHS civil rights laws has violated your rights protected under these authorities, you may file a complaint at https://www.hhs.gov/ocr/complaints/index.html.

 

  • The Civil Rights Division of the Department of Justice has the following page on its ADA.gov website that discusses topics related to COVID-19 and the ADA: https://www.ada.gov/emerg_prep.html. o If you believe that you or another person has been discriminated against by an entity covered by the ADA, you may file a complaint with the Disability Rights Section (DRS) in the Department of Justice. Information about how to file a complaint is available at https://www.ada.gov/fact_on_complaint.htm.

 

 

  • The Administration for Community Living’s document, “How ACL’s Disability and Aging Networks Can Help People with Long COVID,” provides information on resources and programs to assist people with long COVID. This document is available at https://acl.gov/sites/default/files/COVID19/ACL_LongCOVID.pdf.

 

  • While employment is outside of the scope of this guidance document, individuals who wish to learn more about COVID-19 and employment can visit the following Equal Employment Opportunity Commission page, which provides COVID-19 information and resources: www.eeoc.gov/coronavirus.

o The EEOC’s main COVID-19 publication, What You Should Know about COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, is available at: https://www.eeoc.gov/wysk/what-you-should-know-aboutcovid-19-and-ada-rehabilitation-act-and-other-eeo-laws.

o For information about filing an employment discrimination charge, see https://www.eeoc.gov/filing-charge-discrimination.

 

Thoughts/takeaways: While not federal resources, the job accommodation network, mentioned above, and my blog, understanding the ADA, can be useful resources as well. Finally, training by knowledgeable people and consulting knowledgeable ADA counsel when appropriate are also very important.

Synagogue, Jewish, 1869, Pecs, Hungary

Synagogue (two story)

 

Previously, I blogged on a Seventh Circuit case discussing whether the ministerial exception applied to hostile work environment situation. In that panel decision, the Seventh Circuit said that the ministerial exception did not apply to situations involving a hostile work environment. You can see the complete discussion of that panel decision here. However, the Seventh Circuit voted to hear it en banc. On July 9, 2021, the Seventh Circuit sitting as a whole decided 7-3 that the panel got it wrong. That is, the ministerial exception does apply to hostile work environment situations. The person who wrote the majority opinion in the original panel decision dissented along with two others. Since we have already discussed this case at length, the blog  entry will be divided into the following categories and they are: why hostile work environment cases are subject to the ministerial exception (majority opinion); why hostile work environment cases are not subject to the ministerial exception (dissenting opinion); and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Why Hostile Work Environment Cases Are Subject to the Ministerial Exception (Majority Opinion)

 

  1. The First Amendment says that Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.
  2. From the establishment clause and the free exercise clause, the ministerial exception, which ensures that the authority to select and control who ministers to the faithful is the church’s alone because such authority is strictly ecclesiastical.
  3. The First Amendment and the ministerial exception work together towards a common goal of protecting the employment rights of religious organizations.
  4. When adjudicating disputes involving religious governance, avoidance rather than intervention should be the role of the courts.
  5. Churches must have independence on matters of faith and doctrine and in closely linked matters of internal government.
  6. Ministerial exception follows naturally from the church autonomy doctrine.
  7. The ministerial exception put forth by the court in Hosanna-Tabor, discussed here, is a result of the church autonomy case law and notions of ecclesiastical independence and employment coming together.
  8. In Our Lady of Guadalupe, here, the Court emphasized that the church’s independence in matter of faith and doctrine requires the authority to select, supervise, and if necessary, remove a minister without interference by secular authorities.
  9. Without that power, a wayward minister’s preaching, teaching, and counseling could contradict the church’s tenets and lead the congregation away from the faith. The ministerial exception preserves a church’s independent authority in such matters.
  10. From Hosanna-Tabor and Our Lady of Guadalupe, you get the following three principles. First, the rationale is not limited to the context of those cases. Second, the ministerial exception prevents the harms of civil intrusion and excessive entanglement with the church. Finally, the First Amendment gives special deference to the right of religious organizations, especially in matters of ministerial employment.
  11. The ministerial exception is an affirmative defense to employment discrimination claims.
  12. Adjudicating plaintiff’s allegations of a minister’s hostile work environment claim would not only undercut a religious organization’s constitutionally protected relationship with the ministers, but it would also cause civil intrusion into, and excessive entanglement with, the religious sphere.
  13. Judicial involvement in this dispute departs from Hosanna-Tabor and Our Lady of Guadalupe and threatens the independence of religious organizations in a way the First Amendment does not allow.
  14. A judgment against the church would legally recognize that it fostered a discriminatory employment atmosphere for one of its ministers. Thus, the church would have necessarily failed in its supervision and control, either directly or indirectly.
  15. Members of a religious group put their faith in the hands of their ministers as the minister is the chief instrument for religious organization to fulfill its purpose.
  16. Only through a minister does a religious organization begin its own voice and spread its own message.
  17. Precluding termination claims by ministers, recognizes that their employment relationship is different than others and deservedly so.
  18. A religious organization must be free to choose those who will guide it on its way as well as free to decide how to lead a religious organization on that journey.
  19. Absolutely no doubt that the plaintiff was a minister under the applicable Supreme Court case law.
  20. Religion permeates the ministerial workplace in ways it does not for other workplaces. Ministers infuse a religious organization with spirituality. Therefore, allowing hostile work environment claims intrudes upon more than a mere employment decision. It also means that analyzing a minister’s hostile work environment claim based upon another minister’s conduct is not just a legal question but a religious one as well.
  21. If the relationship between an organized church and its ministers is its lifeblood, then the relationship between its ministers is its backbone.
  22. Interaction between ministers is critical to religious organization and its mission.
  23. The contours of the ministerial relationship are best left to a religious organization and not to the courts.
  24. To render a legal judgment about plaintiff’s work environment is to render a religious judgment about how ministers interact with each other.
  25. Deciding where a minister’s supervisory power over another minister ends and where employment discrimination law begins, is not a line to be drawn in litigation, which is why the ministerial exception exist in the first place.
  26. A religious organization’s supervision of its ministers is as much a component of its autonomy as is the selection of the individuals playing certain key roles.
  27. It doesn’t make sense to say that the independence of religious organizations matter only at the hiring and firing of the ministerial relationship and not in between (the work environment).
  28. Distinguishing between tangible and intangible employment actions is not persuasive.
  29. By probing the ministerial work environment, courts interfere with the free exercise clause, which protects a religious group’s right to shape its own faith and mission.
  30. A religious organization shapes its faith and mission through its work environment as much as it does through its appointments.
  31. Allowing the state to regulate the ministerial work environment violates the establishment clause.
  32. How one minister interacts with another in the employment environment that follows, is a religious not judicial prerogative.
  33. A hostile work environment claim threatens to fundamentally alter the ministerial relationship in the work environment.
  34. Since a minister lies at the heart of a religious organization’s work and workplace, deciding whether discrimination pervades his employment impermissibly requires a court’s intrusion into a religious thicket.
  35. Civil authorities have no say over matters of religious government. The invitation to turn the spiritual into the secular raises the concern of curtailing religious-based speech in the religious workplace.
  36. What one minister says in supervision of another may be stern counsel to some or tread into bigotry to others. How a court is to figure out the difference between the two cannot be done without infringing upon a religious organization’s rights.
  37. The free exercise clause allows ministers to have an eye toward liturgy and not litigation.
  38. A hostile work environment claim based on the relationship between ministers would send a court into endless inquiries as to whether each discriminatory act was based upon church doctrine or simply secular animus. Discerning the difference between the two is no task for a judge or jury.
  39. Judges cannot be as competent in ecclesiastical law and religious faith as members of a religious faith are.
  40. Excessive entanglement results when a court adjudicates a minister’s hostile work environment claim based upon the protective ministerial relationship.
  41. A religious organization should not be forced to choose between putting forth a religious justification or risking legal liability. That is, the state may no more require a minimum basis in the doctrinal reasoning then it can with respect to supervising doctrinal content.
  42. To defend against plaintiff’s claims without the ministerial exception, the church would have to rely on the affirmative defense comprising two elements: 1) the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and 2) the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. Playing that defense out would make legally relevant every step that the church took or failed to take in internally responding to the alleged behavior of the minister from the informal procedures of the church handbook to the ancient traditions of a Canon tribunal. Such rules, policies, and decisions are not the federal courts concern because they are unmistakably of an ecclesiastical nature.
  43. Discovery to determine who is a minister differs significantly from discovery to determine how that minister was treated. Even more burdensome would be depositions of fellow ministers to figure out a subjective motive behind the alleged hostility.
  44. Tort liability generally does not arise as a direct result of the protective ministerial relationship, which is not the case for employment discrimination claims.
  45. Analogy to tort law fails to recognize that a hostile work environment claim brings the entire ministerial relationship under invasive examination.
  46. The courts are split on whether the ministerial exception covers hostile work environment claims. The 10th Circuit says that hostile work environment claims do fall within the ministerial exception. However, the Ninth Circuit says that hostile work environment claims do not fall within the ministerial exception. The court says the 11th and Fifth Circuits have not taken a clear stand on the issue.

 

II

Why Hostile Work Environment Claims Are Not Subject to the Ministerial Exception (Dissenting Opinion).

 

  1. The majority opinion means that regardless of how severe, pervasive, or hostile the work environment is, regardless of whether the hostility is motivated by race, sex, national origin, disability, or age, and regardless of whether the hostility is tied to religious faith and practice, such suits are precluded.
  2. The majority opinion focuses too much on religious liberty and too little on the counter arguments and other interests so as to take the Seventh Circuit’s law beyond the necessary protection of religious liberty. Instead, it creates for religious institutions a constitutional shelter from generally applicable laws at the expense of the rights of employees.
  3. The Supreme Court has never reached the question of whether hostile work environment claims are subject to the ministerial exception.
  4. The majority holding draws an oddly arbitrary line as a matter of constitutional law, barring only hostile environment claims.
  5. The Fourth and the Ninth Circuit’s and the Seventh Circuit’s panel decision drawing a line between tangible employment actions and hostile environment claims is the line most consistent with the purposes of the ministerial exception. Such a line allows churches ample power to select, control, and supervisor ministers while protecting employees from abuses that are not properly within the scope of anyone’s employment.
  6. The Ninth Circuit’s and the Seventh Circuit’s panel decisions are more in harmony with the broader sweep of First Amendment precedents-protecting religious liberty while not granting special privileges to churches at the expense of their employees except when necessary.
  7. In Hosanna-Tabor, the Supreme Court specifically said that they were not expressing an opinion on whether the ministerial exception applied to employees alleging breach of contract or two tortious conduct by the religious employers.
  8. The First Amendment does not bar civil suits against churches with respect to all aspects of a minister’s employment relationship. For example, it has long been clear that civil courts may award damages to a minister for breaches of employment contracts.
  9. That the circuits are split is a sign that the question of whether hostile work environment cases are subject to the ministerial exception is not as easy of a question as the majority suggests. In the Ninth Circuit case, the Jesuits did not defend the alleged harassment as motivating by religious views. In fact, they condemned it.
  10. In a footnote, the dissent notes that ministers claim for breach of contract can present serious First Amendment issues. However, those issues are not barred categorically from civil courts and call for a case-by-case consideration of whether the claim may be decided without intruding into doctrinal or ecclesiastical territory.
  11. The Ninth Circuit found that the free exercise clause did not require the courts to deny relief on hostile environment claims. In particular, they noted that the Jesuits most certainly did not claim that allowing harassment to continue unrectified was a method of choosing their clergy. Since there was no protected choice rationale involved, the Ninth Circuit said that they were not intruding on church economy. Therefore, allowing the case to proceed was anymore an intrusion upon church autonomy than when parishioners are allowed to proceed with civil suits against the church for the negligent supervision of ministers who have subjected them to inappropriate sexual behavior.
  12. A generalized and diffused concern about church autonomy was not enough to require dismissal.
  13. The Ninth Circuit found that in a hostile work environment case there would be no need to evaluate religious doctrine or the reasonableness of Jesuit practices.
  14. Churches and leaders are already accountable in civil courts for all kinds of similar sorts of claims. For example, employees who are not ministers may assert rights against churches for discrimination in the hiring, firing, compensation, and every other aspect of the employment relationship, including hostile environment claims.
  15. Everyone agrees that even ministerial employees can assert tort claims against supervising ministers and churches as institutions. Tort claims that would be similar to a hostile work environment claim include assault and battery and the intentional infliction of emotional distress.
  16. Defendants and all members of the court agree that supervising ministers may be subject to criminal law for crimes committed against church employees, including ministerial employees.
  17. Defendants and all members of the court agree that churches and their ministers can be subject to tort and criminal law for wrongs committed against parishioners and others.
  18. Investigations into tort and criminal liability of supervisors and churches of institutions cannot avoid looking into a church’s supervision and control of a ministerial employee. While delicate legal questions may arise in that eventuality, such investigation, civil suits, and even prosecutions may proceed and no one suggests otherwise.
  19. In a footnote, the dissent notes that state of mind is at the heart of tort law. For example, all you have to do is look at the great divide between intentional torts and negligent torts to get the point. That same footnote also points out that tort liability can arise as a direct result of the protective ministerial relationship. Just take a look at the role of a priest or other pastor’s power in the sexual abuse of parishioners or subordinate ministers or in the infliction of emotional distress on a subordinate.
  20. The First Amendment question that the ministerial exception involves has never been what sort of legal immunities actually helps churches. Instead, the question is whether that particular legal immunity is necessary to comply with the First Amendment.
  21. The government’s interest in preventing discrimination has long been recognized as compelling for purposes of constitutional analysis.
  22. Churches have undisputed powers to select and control their ministers free of constraints from employment discrimination and other laws. Hiring, firing, promoting, retiring, transferring our decisions that employers, including religious ones, make to select those who carry out their work. Further control is available through many other tangible employment actions, including decisions about compensation, benefits, working condition, resources available to do the job, training from other staff and volunteers, and so on.
  23. Hostile environment claims involve quite different elements and special rules for employers. The differences show that religious employers do not need exemption from such claims to be able to select, supervise, or control their ministers.
  24. Hostile work environment claims are tortious in nature and are by definition based upon actions that are not necessary for effective supervision of employees.
  25. In general, sexual harassment by a supervisor is not conduct within the scope of employment so the employer cannot be held liable for that conduct. That said, an employer can be liable where its own negligence is a cause of the harassment or where the supervisor takes tangible employment action against the employee. If no tangible employment action is taken, the hostile work environment rules view the harassment as a tort committed by a supervisor against an employee but acting outside the scope of the supervisor’s employment.
  26. The Supreme Court’s leading case teaches that a hostile work environment is not a permissible means of exerting constitutionally protected control over employees and accomplishing the mission of the business or the religious organization.
  27. An employer’s need and right to control employees should not embrace harassing behavior that the Supreme Court has defined in numerous cases as conduct that unreasonably interferes with an employee’s work performance. The notion that harassment is somehow necessary to control or supervise an employee is an oxymoron.
  28. The suggestion that federal courts cannot tell the difference between pastoral counseling even with tough love or stern counseling and the torrents of the most violent and abusive epitaphs aimed at race, sex, sexual orientation, and disability does not give sufficient credit to the federal courts. After all, courts have been protecting religious liberty for generations by policing lines far more subtle than the one that worries the defendants and the majority in this case.
  29. While it is true that application of employment discrimination laws, including hostile environment claims, poses some risk of entanglement between civil power and churches, that should only be the beginning of the analysis and not the end.
  30. Where faith communities encounter civil law, American courts have a long history of balancing powerful interest on both sides to protect religious freedom while enforcing other important legal rights. That problem is particularly sensitive when it comes to the tension between the freedom of religion and employees right to be free from invidious
  31. Procedural entanglements may result from a protracted legal process pitting invidious church and the state as adversaries and with the religious organization getting subjected to a legal process designed to probe the mind of the church, including far-reaching remedies and continue court surveillance of the church’s policy and decisions even after final judgment. In more than 20 years on the Ninth Circuit, the Ninth Circuit had not seen any procedural entanglements as so defined.
  32. Religious employers have long been subject to employment discrimination suits by their non-ministerial employees.
  33. Tort, contract, and property claims are not barred categorically against churches.
  34. Procedural entanglement is not necessarily any more concerned with hostile environment claims by ministerial employees than claims by non-ministerial employees.
  35. The Catholic Church has faced expensive litigation over torts committed by clergy in recent years. That litigation inquires, sometimes deeply so, into the relationship between the clergy and parishioners and into the church’s supervision and disciplinary practices in dealing with priests subjected of having sexually abused children. No one is suggesting that the First Amendment barred such claims or the necessary investigations.
  36. Courts have managed potential entanglement problems in church litigation across a range of subjects-from contract and property disputes to employment disputes, torts, and church elections and schisms.
  37. Deciding which of two rival groups seeking control of church property has the better theological or doctrinal argument, is not a role for the courts. However, civil court do sometimes decide questions of property, contract, tax, or tort law in cases involving churches. They can do that so long as they avoid issues of faith and stick to applying neutral, secular principles of law.
  38. If the full sweep of case law is considered, a need for balance and nuance and not new absolute rules in constitutional law is required.
  39. Civil courts have nothing to say about whether same-sex marriage or a hierarchal supervisory structure should be permitted. The church was free to decide whether to retain the plaintiff or fire him. However, hostile work environment claims alleging conduct constituting abuse under neutral, generally applicable standards that would be enforceable on behalf of a non-ministerial employee is another matter as such conduct is by definition not necessary to control or supervise any employee. So, the dissent would hold that courts may apply secular hostile environment law to actions taken towards all employees, including ministers, absent a showing that the circumstances of the particular case would require excessive entanglement between civil and religious realms.
  40. Hostile environment claims have been brought against other types of employers on the basis of highly disturbing facts and the majority opinion would preclude such claims.
  41. In brief and oral argument, defendants acknowledge that a religious employer could be held civilly liable for supervisor’s criminal or tortious conduct toward a ministerial employee or for the pattern of racial abuse and harassment described in other cases. If that is the case, the dissent does not see why a statutory case based upon the same conduct necessarily violates the First Amendment regardless of whether the supervisor claims a religious motive.
  42. It is difficult for the dissent to conclude that the First Amendment requires immunity with supervisors and coworkers of a ministerial employees leave nooses at the desk of the black minister while repeatedly subjecting him to verbal abuse with racial epitaphs and symbols. Similarly, it is difficult to understand how the First Amendment would require immunity where a teacher is subject to pervasive and unwelcome sexual intention or subject another to intimidating harassment based upon national origin. Such harassment is simply not necessary to control ministerial or any other employee. The majority’s holding puts this sort of extreme conduct beyond the reach of employment discrimination statutes.
  43. The majority decision raises the stakes for future decisions about who should be deemed a ministerial employee. In fact, many employers with religious affiliations are trying to expand the reach of the ministerial exception to cover a much broader range of their employees, such as teachers, nurses, and other healthcare workers. Lawyers for such employers have been offering public advice about how to do precisely that. In fact, several cases have rejected that approach. Expect aggressive effort to expand who might be ministerial employees after the majority opinion.
  44. The combination of the majority’s holding in this case with effort to expand the categories employee deemed ministerial threatens to leave many without basic legal protection of their dignity and employment.

 

III

Thoughts/Takeaways

 

  1. The Circuit Court split mean that it is inevitable that sooner or later this will go before the Supreme Court. I count four solid votes for the en banc decision: Barrett, Alito, Thomas, and Gorsuch. Three solid votes in favor of the dissent: Kagan, SotoMayor, and Breyer. That leaves Chief Justice Roberts and Justice Kavanaugh outstanding. Both are Catholics but that could play either way. Also, hard to say how the sexual harassment allegations against Justice Kavanaugh in his confirmation hearings would affect anything, if at all. For the dissenting view to prevail, Justice Kavanaugh and Chief Justice Roberts are going to have to be convinced somehow. The briefs for either side can be expected to resemble closely the majority and dissenting opinion in the Seventh Circuit’s en banc decision.
  2. Most certainly, lawyers are advising their clients on ways to increase the possibility of their ministerial exception applying to their clients that are religious employers. I started making suggestions myself the minute the Hosanna-Tabor decision came down, see here.
  3. Effort to make employees ministers may not be that difficult, particularly after the Our Lady of Guadalupe decision, here.
  4. If the majority opinion of the en banc Seventh Circuit’s decision is confirmed by the United States Supreme Court, you can expect an awful lot of litigation over who is a minister. In that situation, plaintiffs will have to figure out a way to say that Our Lady of Guadalupe did not render Hosanna-Tabor irrelevant. That is, the Hosanna-Tabor analysis of who is a minister still must be worked through. One wonders if the en banc majority decision is adopted, if you will not see a significant effort by employees to narrow Our Lady of Guadalupe and focus on using Hosanna-Tabor to figure out whether a ministerial employee is involved.
  5. If you are a person with a protected characteristic and are considering working for a religious employer in a jurisdiction that follows the majority of the Seventh Circuit’s en banc decision, you want to think several times over before deciding to work for that organization. At a minimum, a prospective employee should insist upon language in the contract saying that the religious organization will not discriminate against you based upon your protected characteristic. If you are a person with a disability, make sure that contractual language includes making reasonable accommodations per the ADA. If the religious entity is not willing to put that into the employment contract, serious consideration should be given to just walking away as difficult as that might be.
  6. You can expect litigation to move into the area of breach of contract if the majority opinion becomes the rule. Hence, what is actually in the employment contract will become super important.
  7. Since title III of the ADA specifically exempts religious employers from its coverage, you want to think very carefully about whether you want to be an independent contractor for religious organizations if you are a person with the disability. At a minimum, get protective contractual language into the independent contractor agreement.
  8. The majority opinion may be a be careful what you wish for situation. That is, religious employers may now find it very difficult to attract good employees to work for them because should there be any discrimination, the employee is without any remedy under the Seventh Circuit majority opinion. In the socially conscious world we now live in, such organizations may see protests and members leave as well.
  9. Even the dissenting opinion may be problematic for persons with disabilities alleging a hostile work environment with respect to a disability at a religious organization. One of the arguments that the dissent makes is that such conduct is outside the scope of employment. However, when it comes to the ADA the general rule is that there is no individual liability pertaining to private entities.
  10. Non-ministerial employees, if there is such a thing after Our Lady of Guadalupe, are not affected by this decision.
  11. The ministerial exception is an affirmative defense. So, the burden of making the defense falls upon the religious employer. How difficult that burden is, is not clear after Our Lady of Guadalupe Bay. Our Lady of Guadalupe and Hosanna-Tabor suggest very different answers between them on how expensive the burden of proof is for the religious employer.
  12. In extreme situations, look for more intentional infliction of emotional distress claims against religious employers after this decision because the decision does not preclude such claims. Also, look for other intentional tort claims to increase as well, such as assault and battery. Finally, keep in mind that intentional tort claims are often not covered by insurance.

Let’s say you have a situation where you have a severely autistic individual, a person with Tourette’s, dyslexia, or some kind of severe learning disability, all of which can lead to anger when the person gets frustrated. To be clear, I am not saying that all persons with disabilities are prone to anger more so than anyone else. I am saying that it is realistic to say that K-12 students with disabilities of various kinds may get extremely frustrated causing them to act out. Let’s say they engage in speech off-campus where those frustrations come to the fore. Does it matter if their IEP or their 504 plan makes note of their ability to get frustrated and then lash out? Perhaps, the IEP or a 504 plan even has an anger management plan in it. What are the considerations?

 

The case of the day actually doesn’t deal with disability rights at all, but rather deals with the rights of all K-12 public school students to engage in speech while off-campus. The case is Mahanoy Area School District v. B.L. decided by the United States Supreme Court on June 23, 2021. The case involved a person who failed to make the cheerleading team and then put a couple of different posts up on Snapchat. Someone screenshotted those posts, and the plaintiff wound up being suspended from the junior varsity cheerleading team for an entire year. She sued alleging violations of her free speech rights. It eventually made its way to the United States Supreme Court. As usual the blog entry is divided into categories and they are: why disciplining K-12 public school students for off-campus speech is going to be very difficult; just when might you be able to discipline a K-12 public school student for off-campus speech; and thoughts/takeaways. Of course, the reader is free to concentrate on any or all of the categories.

 

I

Why Disciplining K-12 Public School Students for Off-Campus Speech is Going to Be Very Difficult (Justice Breyer’s Majority Opinion).

 

  1. When it comes to off-campus speech, a school rarely stands in loco parentis (in the shoes of the parent).
  2. Geographically speaking, off-campus speech normally falls within the zone of parental rather than school related responsibility.
  3. Courts have to be skeptical of a school’s effort to regulate off-campus speech 24-7.
  4. American Public schools are nurseries of democracy and must include the protection of unpopular ideas.

 

Mitigating Factors to Consider:

 

  1. The postings appeared outside of school hours on her own time from a location outside the school and the language used did not identify the school or target any member of the school’s community.
  2. No reason to believe that the plaintiff’s parents had delegated to school officials their own control of their child’s behavior at the restaurant where the postings were made from.
  3. The vulgarity used in the posts encompassed a message of irritation and criticism of the school and cheerleading communities.
  4. The school presented no evidence of any general effort to prevent students from using vulgarity outside the classroom.
  5. No evidence existed of substantial disruption of the school activity or threatened harm to the rights of others that might justify the school’s actions. In fact, the evidence was entirely to the contrary. Also, little evidence of any serious decline in team morale to the point where it created a substantial interference or disruption of the school’s effort to maintain team cohesion.

 

II

Just When Might You Be Able to Discipline a Public School K-12 Student for Off-Campus Speech?(Justice Alito’s Concurring Opinion)

 

  1. None of the Supreme Court’s prior cases dealt with off-campus speech.
  2. The doctrine of in loco parentis rarely applies to off-campus speech.
  3. The only possible theory for disciplining a student for off-campus speech is that parents consented on behalf of the child to the relinquishment of some of the child’s free-speech rights.
  4. Parents consent to a public school’s exercise the degree of authority commensurate with the task that the parents ask the school to perform. In other words, they relinquish the measure of authority to allow the school to exercise their state-mandated educational mission as well as to allow them to perform any other function to which parents expressly or implicitly agree, such as giving permission for a child to participate in a curricular activity or to go on a school trip.
  5. Enrollment cannot be treated as a complete transfer of parental authority over a student’s speech because in our society, it is parents and not the State that have the primary authority and duty to raise, educate, and inform the character of the children.
  6. Parents can reasonably be understood to have delegated to their child’s public school the authority to regulate the speech in the following situations: 1) speech taking place during or as part of what amounts to a temporal or spatial extension of the regular school program, such as: online instruction at home; assigned essays or other homework; and transportation to and from school; 2) statements made during other school activities in which to participate need parental consent, such as school trips, sports, and other extracurricular activities taking place after regular school hours off the school premises; 3) afterschool program for students who would otherwise be without adult supervision during that time, such as abusive speech occurring while students are walking to and from school;
  7. Student speech that is not expressly and specifically directed at the school, school administrators, teachers, or fellow students addressing matters of public concern, such as, by way of example, politics, religion, and social relations is almost always beyond the regulatory authority of a public school.
  8. While schools may suppress disruption from protected speech, they cannot punish protected off-campus speech that prompted students to engage in the misconduct.
  9. There are three common categories where schools often step in with respect to speech: 1) perceived threat to a school’s administrators, teachers, other staff members, or students; 2) speech criticizing or deriding school administrators, teachers, or other staff members. Public k-12 schools can certainly demand respect in this situation, but parents do not relinquish their children’s ability to complain in appropriate manner about wrongdoing, dereliction, or even plain incompetence; and 3) bullying and severe harassment, which are not easy concepts to define with precision with respect to the regulation of speech.
  10. Unflattering speech about a school is protected.
  11. It is not reasonable to infer that the school was given the authority by plaintiff’s parent to regulate her choice of language when she was off school premises and not engaged in any school activity.

 

Justice Thomas dissented saying that in loco parentis at the time of the founding fathers would have included the regulation of off-campus speech. (Justice Alito in several different footnotes in his opinion, very much disagrees with this argument).

 

III

Thoughts/takeaways

 

  1. This case can be considered the constitutional lawyer’s full employment act. If you are a K-12 school and don’t have a constitutional lawyer on retainer, you most certainly need one now.
  2. In a footnote, Justice Alito points out that the case did not involve speech by a student at a public college or university. For several reasons, including age, independence, and living arrangements of college students, regulation of their speech may raise very different questions from those presented in this case. So, this case does not apply to college students at public colleges or universities.
  3. 90% of K-12 students attend public schools.
  4. If an IEP or a 504 plan has references to anger issues, temper, or even an anger management plan, then the student with a disability may also be able to fall back on that wording to minimize any discipline in addition to the protections offered by this case. In such cases, there is going to be a real issue of the student’s intent v. whether they were just acting in a way related to their disability based upon the circumstances they were facing. If the latter, there may be questions of whether reasonable modifications to the policy, program, activities might not be in order instead of discipline.
  5. Did I mention that every K-12 public school needs to have a constitutional lawyer on retainer?
  6. It is clear that disciplining K-12 public school students for off-campus speech is now going to be an extremely difficult proposition. If you throw in students with disabilities with 504 plans and IEPs referencing how they act out when frustrated, it becomes even more difficult.
  7. If a student has a disability that is prone to acting out when very frustrated, it would be a good idea to get that into the IEP or the 504 plan. As a general proposition, IEP’s and 504 plans should be as comprehensive as possible.
  8. Expect to see a lot of litigation in the future trying to figure out what the parameters are for public K-12 schools disciplining students for disruptive off-campus speech.
  9. As Justice Alito noted, the principles discussed in this case do not neatly carry over to colleges and universities, especially residential ones. As a result, look for lots of future litigation with respect to public colleges and universities disciplining students for off-campus speech.
  10. The majority opinion does not give much guidance as to when public K-12 schools can step in with respect to off-campus speech. Instead, the majority opinion just says that it will be very difficult for public K-12 schools to do so. Look for Justice Alito’s opinion to become very frequently read by special education/504 attorneys and constitutional law attorneys because he attempts to give that guidance.
  11. When bullying and harassment off-campus is sufficient for a public K-12 school to step in, remains to be worked out. Might there be an analogy to the hostile work environment line of cases?
  12. The decision applies to public K-12 schools. Private schools have much more flexibility when it comes to limiting freedom of speech.