I started writing this blog on election day, which turned out to be very interesting by the end of it with President Trump winning both the popular and electoral votes. Of course, the next question is what does that election mean for persons with disabilities. We don’t know, but a few immediate thoughts come to mind. First, if President Trump’s first term is any indication, don’t expect to see web accessibility rules for private entities. Second, the Department of Justice under President Biden has been very supportive of persons with disabilities. I would expect a President Trump administration, if his first term is any indication, to have the Department of Justice turn to other priorities. Third, there is at least one EEOC Commissioner he will need to appoint, and you may see a new EEOC General Counsel as well. Fourth, one wonders if you won’t see a rush to finalize various regulations previously proposed and for which comments have been received, before the first week of January, assuming rushing that process is even possible. Finally, it is entirely possible that President Trump will be able to appoint new Justices to the Supreme Court thereby quite possibly putting a stamp on a majority of the Court for decades in the future. Of course, one never knows how a Supreme Court Justice will evolve, and when it comes to disabilities, how a judge views disability is not partisan.

 

Today’s blog entry concerns a case out of the State of Illinois that easily could have been an association discrimination claim under the ADA but turns out to have gone in a different direction. The case is Loyola University of Chicago v. Onward MSO, LLC, here, decided by the Illinois Appellate Court, First District, on October 30, 2024. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning reversing the trial court’s judgment; and thought/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

 

I

Facts

 

The case arises from a forcible entry and detainer lawsuit filed by plaintiff Loyola University of Chicago against defendant Onward MSO, LLC, a company which operated a restaurant on the premises owned by plaintiff. Defendant’s counsel had health issues during the proceedings, resulting in two continuances; after the second one, the trial court indicated that it would grant no further continuances and suggested that defendant retain additional or alternate counsel. Shortly before trial, defendant’s counsel had a health emergency which was unrelated to his prior condition, which resulted in his hospitalization. The trial court, however, denied defendant’s requests for a continuance despite strenuous objections and willingness to offer proof of the attorney’s medical situation, and the matter proceeded to a jury trial. At trial, defendant was unable to present its case, as it was not represented by an attorney, and the trial court ultimately entered a directed verdict at the end of plaintiff’s case. At trial, the owner of the restaurant was not permitted to speak nor present any evidence nor challenge plaintiff’s evidence. Accordingly, after plaintiff’s case in chief, plaintiff moved for a directed verdict, which was granted and was also granted a substantial monetary award. Defendant appealed. Eventually, the eviction was effectuated so the defendant no longer had possession of the property. As a corporate entity, a defendant is required to be represented by a licensed attorney at all times and does not have the ability to proceed pro se.

 

II

Court’s Reasoning Reversing the Trial Court’s Judgment

 

  1. While the eviction being effectuated makes the eviction dispute moot, the eviction also came with a monetary award. Accordingly, the case overall is not moot and the appellate court has jurisdiction.
  2. Illness may serve as sufficient grounds for a continuance even on the eve of trial.
  3. The illness of a party’s trial attorney may warrant a temporary postponement of the trial.
  4. The delays caused by trial counsel’s health was not particularly lengthy, six weeks.
  5. The trial court’s statements appear to hold defendant responsible for delays largely occasioned by the litigation process.
  6. Examining the timeline of the litigation, defendant received two prior continuances based on counsel’s health, with the trial court denying the third. The continuances resulted in the trial date moving from September 13, 2022, to October 28, 2022, which is slightly over six weeks. A six week delay in a trial is not so egregious as to warrant proceeding to trial regardless of the circumstances.
  7. The trial counsel’s illness was not foreseeable even considering his prior health issues, which were related to a completely different set of concerns. In other words, while counsel’s health was the common factor in the delays, the subsequent illness is more similar to the analogy of a car accident rather than a mere continuation of counsel’s prior problems as the trial court apparently concluded.
  8. The trial court’s suggestion that defendant seek additional or substitute counsel is not relevant because there is no indication that trial counsel would have otherwise been unable to appear as scheduled. In fact, defendant indicated that counsel have received a clean bill of health from his physician shortly before he became ill.
  9. The trial court’s decision to deny a continuance was not based on a finding that the request was insufficiently supported as trial court acknowledged that it is accepted that counsel was ill. Also, nothing in the record indicates that the trial court was prevented from adequately considering evidentiary support for trial counsel’s medical emergency.
  10. Trial court admitted knowing that counsel had been ill and was not asking for detail necessarily, but the court insisted on trial anyway.
  11. Not granting the continuance resulted in extreme prejudice because the defendant with a corporate entity that could only proceed with counsel and not pro se. In essence, the defendant was rendered powerless to defend against plaintiff’s case. In particular, the defendant did not have the ability to: (1) present any motions in limine or object to those submitted by plaintiff, (2) participate in jury selection, (3) cross-examine any of plaintiff’s witnesses or challenge any of its evidence, (4) present its own evidence in support of its defenses, or (5) participate in a jury instruction conference.
  12. Given the extremely harsh result of the denial, the relatively modest length of the previous delays, and the fact that the request for a continuance was based on the sudden illness of counsel, the trial court should have granted defendant’s request and continued the trial, at a minimum, for the 21 days requested by the defendant at the pretrial hearing.

 

III

Thoughts/Takeaways

 

  1. This very easily could have been a case arguing that the defendant was discriminated against because they associated with a person with a disability. Either by statute or by regulation, every title of the ADA contains a prohibition on discrimination against persons who associates with a person with a disability.
  2. In a case that we discussed here, we know that the Seventh Circuit is watching the conduct of state courts with respect to how they treat individuals with disabilities in their court proceedings.
  3. After the amendments to the ADA, short-term physical or mental impairments if they substantially limit a major life activity can certainly be disabilities. We don’t know much of the facts in this case, but it would appear that the trial counsel’s emergency surgery would be a disability after the amendments to the ADA.
  4. We do know that personal liability, with one exception in the 11th Circuit, here, is not a thing regardless of the title of the ADA involved. That said, official capacity suits are certainly in order.
  5. If an ADA suit had been filed, issues of judicial immunity and sovereign immunity would have come up. Another issue that would’ve come up is Rooker-Feldman. As we discussed here, Rooker-Feldman might not be an issue in such a case. Also, since accessing the courts would be the right involved, sovereign immunity may also have not been a bar per Tennessee v. Lane, here. While it is possible that these defenses could have been circumvented in an ADA suit, accomplishing that may have been complicated and not easy. So, that might explain why the ADA was not involved. It is also possible that the ADA was not involved simply because it didn’t occur to trial counsel to raise it.
  6. Another issue that could have been raised is whether the trial court’s actions denied the defendant the right to counsel of his choice.
  7. The case illustrates nicely that there may be alternatives to ADA claims even when the ADA is violated. Those claims may in fact be easier to deal with than the ADA.
  8. It would be a completely different story if this involved a federal judge whom does not work for an executive agency because such federal judges are neither subject to the ADA nor to §504 of the Rehabilitation Act. That said, one has to assume that the vast majority of federal judges, if not close to all, would not behave this way.
  9. Hypothetically, if this did occur in a federal courtroom by a federal judge not working for an executive agency, one wonders if a workaround would not be going after the attorney arguing for the trial to proceed. The theory would be if the attorney works for the federal government, that attorney would be discriminating against a person associating with a person with the disability in violation of the Rehabilitation Act (the Rehabilitation Act does not contain any association discrimination provisions. However, some courts have said that such a provision must exist because the Rehabilitation Act and the ADA get interpreted the same way. However, the courts are split on this question. So if you are faced with this issue, checked your jurisdiction). If the attorney was a private attorney, the argument would be that the person was discriminating against a person associating with a person with a disability and was also interfering with the protected rights of an individual to advocate on behalf of a person with a disability in violation of 42 U.S.C. §12203(b). While this case did not happen in federal court, as readers know, I always enjoy thinking outside the box and getting people to think of possibilities they may not anticipate.

Today’s blog entry goes back to the issue of whether an Internet only business website is subject to title III of the ADA. As we have discussed previously, such as here, there are several theoretical possibilities for handling such a claim, and they are: Internet is never a place of public accommodation; Internet is always a place of public accommodation; Internet site only has to be accessible if it is a gateway or has a nexus to a physical place; and Internet site has to be meaningfully accessible to persons with disabilities if it is of the type of business listed in 42 U.S.C. §12181(7). Several circuits have weighed in and there is a Circuit Court split. The Second Circuit has yet to weigh in. The blog entry of the week discusses a district court opinion within the Second Circuit from the S.D. of New York. The case is Mejia v, High Brew Coffee Inc. decided on September 30, 2024, here. As usual, the blog entry is divided into categories, and they are: facts; court’s reasoning that an Internet only business is not a place of public accommodation; and thoughts/takeaways. Of course, the reader is free to read any or all of the categories.

 

I

Facts

 

Plaintiff is a legally blind individual who the parties agree is disabled within the meaning of the ADA. Defendant sells coffee solely through an online platform, highbrewcoffee.com (the “Website”). On April 10 and on August 10, 2022, Plaintiff attempted to purchase a twelve-pack of Double Espresso flavored coffee on the Website, but he was unsuccessful both times. Due to Plaintiff’s disability, he uses screen-reading software to navigate online. He was unable to use this software to make a purchase on the Website, however, because problems with the website’s coding rendered the screen-reader unusable. The complaint goes on to list several specific ways the plaintiff was not able to meaningfully access the website.

 

 

 

II

Court’s Reasoning That an Internet Only Business Is Not a Place of Public Accommodation

 

  1. A majority of circuit courts that have considered the issue- Third, Sixth, Ninth, and Eleventh [in the opinion itself, the court mentions the Seventh Circuit here but that can’t be right. It is possible that the Seventh Circuit itself is split and that happens in that circuit from time to time. That said, the cases cited by the court for this proposition do not include a Seventh Circuit case],- have found that a website constitutes a place of public accommodation only if it has a connection to a physical location (that is, a “brick-and-mortar,” store or establishment).
  2. The First and Seventh Circuits have adopted a minority position, that no “physical nexus,” is required for a private entity when engaged in commerce, in order to fall under the ADA’s scope of coverage.
  3. The Second Circuit has not squarely addressed the question of whether a website absent a connection to a physical location, constitutes a place of public accommodation.
  4. While the Second Circuit dealt with a related case, that case did not deal with the particular issue here. Instead in that case, the Second Circuit held that if a physical premises of a business constitutes a place of public accommodation, then goods and services sold from those premises are subject to the equal access mandate of the ADA.
  5. When looking at 42 U.S.C. §12181(7), all the items on the list are actual, physical places where goods or services are open to the public, in places where the public gets those services.
  6. Even the residual clause at the end of each list, leads to a similar conclusion. By listing 50 terms in §12181(7) that almost all refer to physical places, Congress indicated an intent to limit public accommodations to entities with physical locations. Arguably, the sole exception is travel services, which is included in the list of service establishments.
  7. Courts have disagreed on whether “travel service,” should be interpreted as limited to a physical location. Even so, read in context, “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 commonly operated out of physical facilities when the ADA was adopted, and still do even if it is in lesser numbers than before.
  8. Ejusdem generis also supports the view that general clauses in §12181(7), such as “any other service establishment,” should be confined to public-facing physical locations. That principle counsels that general clauses are limited by the specific clauses preceding them. Applying that principle, the category “any other service establishment,” embraces only entities similar in nature to those entities preceding it in §12181(7). Those entities include a laundromat, an office or an accountant employer, a bakery, and a travel service. All of those entities operate in physical places. Therefore, the principal indicate that the statute was only intended to encompass “service establishments,” tied to a physical location. Therefore, standalone websites cannot be considered a “service establishment,” within the meaning of §12181(7) because it lacks the necessary physical nexus.
  9. A standalone website should not be considered a “place of public accommodation,” because §12181(7) does not explicitly address businesses without a physical location, such as mail order merchandise and television shopping channels, despite numerous applicable business models in existence at the time the ADA was written. Accordingly, it cannot be inferred that Congress intended “places of public accommodation,” to include websites, which was a newly developed business model at the time, when the text of the statute excludes analogous business models by imposing a physical location requirement for an entity to be considered a “place of public accommodation.”
  10. In a footnote, the court notes that DOJ regulations, 28 C.F.R. §36.104, define a place of public accommodation as a “facility,” which is in turn defined in terms of is clearly being a physical place.
  11. In another footnote, the court says that the statutory canon, noscitur a sociis, also supports the conclusion that Congress intended “travel service,” to be limited to a physical place. This canon instructs that a word may be influenced by the words surrounding it. Since there are 49 other entities referenced that are clearly physical locations and travel services were also at least in part physical locations at the time, Congress must’ve intended to restrict its reference to “travel services,” to such services operating in physical locations.
  12. In another footnote, the court notes that at the time of the ADA business was done through mail order catalog and yet those catalogs were not included within the parameters of §12181(7).

 

III

Thoughts/Takeaways

 

  1. As the court notes, there is a Circuit Court split on this question. You can definitely expect that this issue will head to the United States Supreme Court. As I have mentioned several times previously, United States Supreme Court has been very good for people with disabilities outside of the employment context. So, not at all clear to me how this would get decided.
  2. I continued to be completely befuddled by how the Supreme Court case of South Dakota v. Wayfair, which we discussed here, never seems to come up in this kind of litigation, with rare exception. Certainly, a plaintiff, especially but not exclusively at the United States Supreme Court, would have to be out of their minds not to rely on South Dakota v. Wayfair in their arguments. As we discussed in that blog entry, there are literally 23 different times United States Supreme Court strongly suggests that a place of public accommodation need not be a physical place.
  3. The legislative history of the ADA makes clear that it was meant to evolve with technology. See, Tavarez v. Moo Organic Chocolates, LLC, 623 F. Supp. 3d 365 (S.D.N.Y. 2022), here. You can see that district courts in S.D. of NY are also split. So, look for Mejia to be appealed to the Second Circuit.
  4. One big point defense attorneys can make in arguing that internet only businesses are not places of public accommodations is that Congress did not amend the ADA to explicitly include the internet when it did the amendments.
  5. In nexus jurisdictions, what is a sufficient nexus can vary considerably from one jurisdiction to the other.

As everyone knows, I keep a pipeline of cases to blog on. Sometimes, even with my pipeline of cases, I just get stuck. One of the things that my readers may not realize is that while my practice focuses on understanding the ADA so that the client understands how to comply with that law and related laws, “related laws,” really means something. For example, I have consulted on a case involving the interactive process with respect to the Fair Housing Act. I also have consulted on several cases involving the intersection of the Airline Deregulation Act, Title II of the ADA, the Air Carrier Access Act, and state negligence laws. All three of those cases (I actually consulted on the defense side), involved a passenger with a disability suffering a personal injury and then assessing what rules apply and what the situation was. So, when I saw a consent order with a record civil penalty imposed by the US Department of Transportation on American Airlines for violating the Air Carrier Access Act and other laws, here, I just felt I had to blog on it. It has been a while since I blogged on anything involving the Air Carrier Access Act. So, I thought it would be a good time to return to it. As usual, the blog entry is divided into categories and they are: consent order summary; applicable law; DOT’s facts and conclusions; American Airlines response; DOT decision; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the sections.

 

I

Consent Order Summary

 

  1. DOT found that American Airlines failed in numerous cases to provide passengers with disabilities using wheelchairs with adequate enplaning, deplaning, and connection assistance, including assistance in moving within the terminal.
  2. American Airlines failed in numerous cases to provide adequate wheelchair assistance to passengers with disabilities from 2019-2023, and some of those cases resulted in injury to passengers.
  3. Inadequate wheelchair assistance includes untimely assistance, unsafe physical assistance, and undignified assistance.
  4. From 2019-2023, passengers reported that American Airlines mishandled thousands of passengers’ wheelchairs and scooters by damaging them or delaying their timely return.
  5. The order directs American Airlines to cease and desist from future similar violations of the Air Carrier Access Act and other statutory provisions and for American Airlines to pay $50,000,000 in civil penalties.

 

 

II

Applicable Law

 

  1. 14 C.F.R. Part 382 requires carriers to provide passengers with disabilities with assistance with enplaning and deplaning the aircraft, as well as connecting assistance and assistance in moving throughout the airport.
  2. 14 C.F.R. §382.95(a) requires carriers to promptly provide or ensure assistance requested by or on behalf of passengers with a disability in enplaning and deplaning the aircraft. That assistance must include, as needed, the services of personnel and the use of ground wheelchairs, accessible motorized carts, boarding wheelchairs, onboard wheelchair, and ramps or mechanical lifts.
  3. 14 C.F.R. §382.91 requires carriers to provide or ensure assistance requested by or on behalf of of a passenger with a disability and transportation between gates to make a connection to another flight and assistance in moving from the terminal entrance through the airport to the gate for a departing flight, or from the gate to baggage claim and the terminal entrance for an arriving flight. This requirement also includes assistance in accessing key functional areas of the terminal and a brief stop at the entrance to a restroom upon the passenger’s request.
  4. 14 C.F.R. §382.125(c),(d) require carriers to provide for the checking and timely return of wheelchairs and scooters as close as possible to the door of the aircraft, so that passengers may use their own equipment to the extent possible and assure that there wheelchairs and scooters are among the first items retrieved from the baggage compartment.
  5. 14 C.F.R. §382.129(b) requires carriers to return wheelchairs, other mobility aids, and other assistive devices to the passenger in the condition in which they were received.
  6. 14 C.F.R. §382.141 requires carriers to ensure that airline personnel, including their contractors, dealing with the traveling public are trained to proficiency as appropriate to their job duties and responsibilities on the requirements of 14 C.F.R. Part 382. Airline personnel must also be trained to proficiency on the airline’s procedures in providing air travel to passengers with disabilities, and the use of the boarding and deplaning assistance equipment used by the carrier and appropriate boarding and deplaning assistance procedures that safeguard the safety and dignity of passengers if involved in providing such assistance.
  7. To the extent that the Air Carrier Access Act and Part 382 violations occurred in interstate air transportation, that meant there were also violations of 49 U.S.C. §§41702, 41310, 41712,

 

 

III

DOT’s Facts and Conclusions

 

  1. The Office of Aviation Consumer Protection investigation revealed a significant number of violations for failing to provide individuals using wheelchairs adequate enplaning and deplaning assistance, and assistance in moving within the terminal and connecting assistance. Three categories of those violations existed: cases of unsafe physical assistance provided to wheelchair users, including assistance resulting in direct harm or injury to the passenger; cases of undignified assistance provided to wheelchair users; and other cases that primarily concerned lack of prompt wheelchair assistance. In a footnote, “undignified assistance,” is defined to include instances of improper transfer assistance that disrobed passengers and wheelchair assistance failures and extreme delays resulting in passengers soiling themselves due to the inability to access the rest room.
  2. The Office of Aviation Consumer Protection investigation also uncovered numerous violations for failing to return passengers wheelchairs in a timely manner at deplaning and failing to return to wheelchairs in the condition in which they were received. Office of Aviation Consumer Protection reviewed consumer complaints filed with the Office of Aviation Consumer Protection against American Airlines between January 1 of 2019, and December 31, 2023, as well as formal complaints by the Paralyzed Veterans Association that alleged that the carrier mishandled passengers wheelchairs and scooters. The investigation found that American Airlines damaged or delayed the return of passenger’s power wheelchairs, manual wheelchairs, and scooters, leading to actual or heightened risk of physical harm and significant impacts on passengers mobility. Office of Aviation Consumer Protection also investigated an incident captured on video, of American Airlines personal mishandling a wheelchair at Miami International Airport by dropping it down a baggage ramp. In addition, from 2019 to 2023, American Airlines reported thousands of claims of mishandled wheelchairs and scooters. Office Of Aviation Consumer Protection found that over this period, American Airlines was one of the worst performers among reporting carriers in terms of both the total number wheelchair and scooter mishandling claims as well as the reported mishandling claims rate.

 

 

IV

American Airlines Response

 

  1. American Airlines in 2024 spent in excess of $175 million on services, infrastructure, training, and new technology to support passenger using mobility devices when traveling.
  2. American Airlines strongly believe that is substantially complies with the Air Carrier Access Act and Part 382, and is only entering into the agreement for settlement purposes without admitting any violation of any statute or regulation or waiving any statute of limitations or conceding DOT’s statement of applicable law or its recitation of facts and conclusions. American Airlines also disagrees with DOT’s interpretation of many aspects of the Air Carrier Access Act and Part 382. It also reserves the right to challenge the DOT’s legal interpretations and factual assertions in the future, including with respect to rulemaking.
  3. American Airlines is dedicated to providing a positive travel experience for all customers, which includes, among other things: 1) offering comprehensive wheelchair assistance throughout the airport terminal; 2) offering passengers with disabilities pre-boarding; 3) supplying attendance and equipment to assist passengers with an planing and deplaning; 4) ensuring that passengers with disabilities can bring their personal wheelchairs or other assistive devices with them on their flight; 5) allowing certain assistive devices to be carried on the plane if they meet size and safety criteria; and 6) storing larger devices like battery-powered wheelchairs in a preferential location and cargo and generally returning those devices on the jet bridge for passengers to use when they deplane.
  4. Moving an individual from one wheelchair to another, or from a wheelchair to their seat, is often a challenging interaction that has to account for and adapt to each customer’s specific circumstances and needs.
  5. American Airlines has established the first ever automated tag system for wheelchairs and assistive devices.
  6. American Airlines has invested significantly in airport infrastructure, including by installing wheelchair movers and lifts at its hubs and other airports with high mobility device traffic.
  7. American Airlines has deployed additional employees at large its hubs and gateways in support of providing coordination for accessibility devices across the airport.
  8. American Airlines has adapted its online customer profile system to allow customers to save travel preferences, including traveling with a mobility device or service animals.
  9. American Airlines created an Accessibility Council and Customer Accessibility Team in order to ensure continued focus on disability access.
  10. In 2023, American Airlines received approximately 7.9 million advanced requests for wheelchair assistance. That number does not count for the millions more request that American Airlines received and honored for customers requesting assistance after arriving at the airport. Considering that American Airlines received 9,717 disability related complaints of any kind, the complaint rate was about .1%, which means that nearly 100% of the time passengers requesting wheelchair assistance from American do not submit a complaint about the service provided.
  11. Comparing American Airlines performance from the first half of 2024 with the full year of 2022 revealed that American Airlines rate of clean mishandling was reduced by over 60%, and American Airlines anticipates that ongoing investment would drive that number down even further.
  12. American Airlines take complaints by customers very seriously and investigates every one of them. It routinely provides customers with compensation by way of trip credits, miles, vouchers, and cash in order to make the situation right. With respect to damage or delay to wheelchairs, American Airlines asserts that it pays for repairs, replacement, and loners.

 

 

V

DOT Decision

 

  1. In order to avoid litigation and without conceding the violations, American Airlines consent to the issuance of the order to cease and desist from future violations of the Air Carrier Access Act and Part 382 and to the assessment of $50,000,000 in compromise of potential civil penalties.
  2. American Airlines violated 14 C.F.R. §382.95 by failing to provide a prompt assistant to passengers with a disability and enplaning and deplaning the aircraft.
  3. American Airlines violated 14 C.F.R. §382.91 by failing to provide adequate assistant to passengers with a disability and moving within the terminal and in transportation between gates making a connection.
  4. American Airlines violated 14 C.F.R. §382.125 by failing to provide for the timely return of wheelchairs and scooters as close as possible to the door of the aircraft, so that passengers could use their own equipment to the extent possible and ensure that there wheelchairs and scooters were among the first items retrieved from the baggage compartment.
  5. American Airlines violated 14 C.F.R. §382.129 by failing to return wheelchairs and scooters to the passenger in the condition in which they were received.
  6. American Airlines violated 14 C.F.R. §382.141 by failing to ensure proficient training to which personnel and contractors concerning the requirements of Part 382, the carrier’s procedures concerning the provision of air travel to passengers with disabilities, and for those personnel involved in providing boarding and deplaning assistance, the use of the boarding and deplaning assistance equipment used by the carrier, and appropriate boarding and deplaning assistant procedures that safeguard the safety and dignity of passengers.
  7. $25 million of the assessed penalty is due and payable in three equal installments beginning 30 days after the date of the order and each year after that.
  8. $25 million of the assessed penalty gets credited to American for cost that American has incurred or will incur for:1) investments in equipment to reduce incidence of wheelchair damage, including wheelchair lifts at 24 or more airports in wheelchair movers at 43 or more airports; 2) investments in the systemwide wheelchair tagging system in order to reduce incidence of wheelchair delay; 3) goodwill compensation paid to affected passengers during the timeframe covered by the investigation; and 4) deployment of hub control center employees in 2024-2026 to coordinate wheelchair handling on a centralized, systemwide basis at large airports. American Airlines have to provide DOT by December 31, 2027 at the latest with supporting documentation containing a description of the expenditures associated with the $25 million credit.

 

VI

Thoughts/Takeaways

 

  1. The Air Carrier Access Act contains no private cause of action. So, passengers discriminated against on the basis of their disability or mistreated by air carriers only have recourse to Department of Transportation and to nothing else.
  2. Interesting about the complaint rate cited by American Airlines, as assuredly many people suffer damages to their wheelchairs but do not file a complaint, perhaps due to a lack of private right of action or for some other reason.
  3. This is a substantial penalty.
  4. The definition of an air carrier under the Air Carrier Access Act is actually quite broad and goes beyond what one thinks of in terms of airlines.
  5. For those traveling with service animals, American Airlines saving a passenger’s service animal information will make things much easier for such individuals.
  6. The Air Carrier Access Act is quite short and compliance is entirely driven by the DOT final rules.
  7. If anyone is wondering about the intersectionality of the Airline Deregulation Act, the ADA, the Air Carrier Access Act, and state negligence claims, it is a bit of a long story. The long and short of it is, that the DOT final regulations wind up being the liability standard for any personal injury claims that occur while the passenger is under the control of the air carrier.
  8. A civil penalty was involved. One wonders if American Airlines after Jarkesy, which we discussed here, could have challenged DOT’s ability to insist on a civil penalty at all and demand a jury trial to figure out what the penalty might be. Whether American Airlines would have received a lesser penalty in a jury trial than what it did in the consent order is a separate question.
  9. Since the Air Carrier Access Act is entirely regulatory driven, one wonders what that means post Loper Bright. See this blog entry for example.
  10. The consent order is definitely a warning shot for all other air carriers because every air carrier is dealing with the same exact issues.
  11. One place where Part 382 is lacking is in the area of Deaf, deaf, and hard of hearing accessibility. As a deaf individual that flies from time to time, I have experienced that deficiency personally.
  12. With respect to American Airlines Accessibility Council, I hope it has the full range of persons with disabilities on it because people with disabilities silo.

I hope everyone that celebrated had a good new year season. Wishing all of those a happy new year. In other news, early election voting is underway in many states. My family voted yesterday. Be sure to vote for the candidate of your choice.

 

Today’s blog entry returns to a long-standing interest of mine. As readers know, I have long been interested in the intersection of sports and the ADA. You can find many Understanding the ADA blog entries that explore the intersectionality of the ADA and sports. Today’s blog entry is a bit different because it explores Title III not from the perspective of employment, Internet accessibility, or architectural accessibility, but from the perspective of policies, practices, and procedures. The case of the day is Maya v. 49ers Football Company LLC decided by the Northern District of California on September 10, 2024, here. In this case, United States District Judge Pitts denied the 49ers motion to dismiss. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning that plaintiffs adequately pled claims for discriminatory policies and practices under the ADA, The California Disabled Persons Act, and The Unruh Act; court’s reasoning that plaintiffs adequately pled claims for retaliation and interference under the ADA, The California Disabled Persons Act, and The Unruh Act; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

 

 

I

Facts (Taken from the Opinion)

 

Enrique Maya is a 78-year-old “individual with a childhood diagnosis of polio,” which has left him reliant on a wheelchair “whenever he needs to take more than a few steps.” Compl., Dkt. No. 1 ¶¶ 3, 14. The complaint alleges that this classifies him as a “person with a disability as defined by state and federal law.” Id. Rick Maya is Enrique Maya’s adult son. Id. ¶ 4.

 

Rick Maya took his two sons and father to a Forty Niners football game at Levi’s Stadium. Compl. ¶ 9. Enrique Maya’s attendance was not planned when the tickets were bought. Rick Maya invited his father to attend at the “last minute” because Rick Maya’s wife was unable to attend. Id. Plaintiffs allege that “[a]ble bodied guests can make a last-minute decision to accept the gift of a ticket to Levi’s Stadium.” Id. ¶ 33. The family’s ticketed seats were located seven steps from the concourse level, which Enrique Maya could not access because of his inability to navigate the stairs. Id. ¶ 10. Because of this, Rick Maya pushed his father’s wheelchair into an unoccupied wheelchair-designated seat on the concourse level for which the Mayas did not have a ticket. Id. ¶ 11.

 

An usher at the stadium informed the Maya family that they could not use the wheelchair space without a ticket. Compl. ¶11. Rick Maya proceeded to ask “for another wheelchair seat option.” Id. In response to Rick Maya’s requests, the usher stated that “she did not know where Enrique could sit, but he couldn’t use the wheelchair spaces.” Id. The usher then proceeded to call security staff. Id. Sean, one of the two security staff who responded to the dispute, said Enrique Maya could watch the game on a television in the concourse, but would not be allowed to use the wheelchair space without a ticket. Compl. ¶¶ 12–14. Rick Maya informed security that the concourse was not an acceptable alternative, as it was “busy and boisterous,” and “in the path of foot traffic” adjacent to the men’s restroom and a beer stand. Id. at 14.

 

Sean insisted that they needed tickets for the wheelchair space and “gave them no other option.” Id. at 13–14. He instead threatened to remove the family from the stadium if they did not move. Id. “Shortly, three uniformed Santa Clara City police officers arrived and stood near Plaintiffs and Sean, watching the conversation between them.” Id. “After the offices arrived,” Sean told Rick Maya that “he and his family would be ejected from the stadium” if Rick Maya “did not stop complaining.” Id. The Mayas “understood the police presence as a threat of force and/or arrest if Rick continued to advocate for his father to have equal seating,” and at that point “chose to stop advocating and use the inaccessible seats” because Enrique Maya “did not want his grandsons to miss the game.” Id. ¶¶ 15–16.

 

Enrique Maya’s son and two grandchildren carried him down to their seats, an experience that left Enquire Maya feeling “embarrassed,” “ashamed,” and “uncomfortable,” as “his disability was being graphically demonstrated.” Compl. ¶ 16. Unable to bring himself to ask to be taken to the restroom after the experiences that occurred prior, Enrique Maya urinated on himself in his seat. Id. ¶ 19. This experience at Levi’s Stadium left Enrique Maya feeling humiliated and made him feel “exposed and unwanted as a person with a disability.” Id. ¶¶ 19–20.

 

Rick Maya’s enjoyment of the game was also affected by the need to routinely check on the wheelchair, which stadium staff placed out of sight. Compl. ¶ 21. At halftime and again towards the end of the game, Rick Maya asked the ushers whether his father could move to one of the empty wheel-chair spaces, promising that he would not occupy a companion seat himself. Each time, the ushers responded no. Id. These wheelchair spaces remained unoccupied throughout the entire game. Id.

 

After the game ended, Rick Maya called the 49ers’ customer service line to report the experience and “requested that the 49ers follow the Americans with Disabilities Act.” Compl. ¶ 23. The supervisor, however, “would not promise that his father would be allowed a wheelchair seat if the ticket was not originally purchased as a wheelchair seat.” Id. The supervisor provided the Mayas with no other options and told Rick Maya, “We follow the rules of the NFL.” Id

 

II

Court’s Reasoning That Plaintiffs Adequately Pled Claim for Discriminatory Policies and Practices under the ADA, the California Disabled Persons Act, and the Unruh Act

 

  1. In order to state a claim under Title III of the ADA, a plaintiff must show: 1) the person is disabled within the meaning of the ADA; 2) the defendant is a private entity that owns, leases, or operates a place of public accommodation; and 3) the person with a disability was denied public accommodations [”public accommodation,” is the term that appears in the opinion. A more accurate phrasing would have been, “was denied goods, services, facilities, privileges, advantages or accommodations of the place of public accommodations.”], by the defendant because of a disability.
  2. The ADA, 42 U.S.C. §12182(b)(2)(A)(ii), requires public entities [”public entities,” is what actually appears in the opinion. However, that has to be a mistake. The correct term would be, “place of public accommodations], to affirmatively modify policies, practices, and procedures when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications fundamentally alters the nature of such goods, services, facilities, privileges, advantages, or accommodations.
  3. In California, a violation of the ADA is a per se violation of the Unruh Act and the Disabled Persons Act.
  4. It is uncontested that Enrique Maya is a person with a disability under the ADA and that the defendants are private entities subject to Title III of the ADA.
  5. Plaintiffs pled that the 49ers have a policy, practice, or procedure of requiring wheelchair-bound spectators to buy wheelchair seat tickets in advance if they wish to have a viewing experience comparable to that of other spectators. They also pled that non-disabled participants can make a last-minute decision to accept the gift of a ticket to the football stadium. As such, the facts pled plausibly alleged disability-based discrimination because they suggest that the defendant’s policies and practices require only disabled individuals to pre-purchase tickets.
  6. In a footnote, the court noted that the 49ers argued that their current pre-purchase policy was written in connection with a settlement agreement reached in a prior ADA lawsuit. The court was having none of it because the fact that a prior policy violated the ADA, does not mean that all aspects of a revised policy are compliant with the ADA.
  7. Defendants argued that ADA regulations regarding ticketing and seating were quite robust and nowhere do they include a requirement that a venue must permit a non-ticketed person with a disability to occupy an accessible ticketed location on demand. Once again, the court was having none of it. The court said that while ADA regulations do contain specific provisions addressing ticketing and seating, 28 C.F.R. §36.302(f), compliance with those regulations does not otherwise allow defendants to run away from their ADA obligations. Plaintiffs have plausibly alleged that defendant’s policies and practices deny disabled individuals full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of the football stadium by conditioning the accommodation of the disability on the unique requirement to pre-purchase tickets, and that is true regardless of defendants reported compliance with ADA’s specific regulations regarding ticketing and accessible seating.
  8. A plaintiff may state a claim of disability discrimination by establishing that the defendant: 1) failed to make a requested reasonable modification that was 2) necessary to accommodate a plaintiff’s disability. Plenty of evidence (see below), suggests that this is exactly what happened.
  9. When Rick Maya informed defendants that the suggested modification was not reasonable, defendants provided no other option. During halftime and towards the end of the game, Rick Maya again sought reasonable modifications suggesting that this could be accomplished by allowing Enrique Maya to occupy one of be still unoccupied wheelchair seats even without Rick Maya occupying a companion seat.
  10. Plaintiffs also allege that when Rick Maya called defendants’ customer service line to inquire about modifications under the ADA, defendants again offered no alternatives and indicated they could not commit to reasonably modifying their policies and practices in the future.
  11. Plaintiffs are not asserting that defendants should implement a specific modification. Instead, plaintiffs simply assert that the defendant should have provided them with a reasonable modification in compliance with the ADA’s mandate.
  12. The ADA requires that the defendants offer Enrique Maya some reasonable accommodation to account for his wheelchair-bound status and the allegations are that the defendants never did that.
  13. In a footnote, the court noted that whether a modification is reasonable is a fact intensive inquiry that is premature for resolution on a motion to dismiss. The court also said that the issue of reasonableness depends on the individual circumstances of each case requiring a fact specific and individualized analysis of the disabled individual’s circumstances and the accommodations that might be necessary in order to ensure the ability of the person with a disability to enjoy a public accommodation.

 

III

Court’s Reasoning That Plaintiffs Adequately Pled Claims for Retaliation and Interference Under The ADA, The California Disabled Persons Act, And The Unruh Act

 

  1. Under the ADA, 42 U.S.C. §12203(b), it is unlawful to coerce, intimidate, threaten, or interfere with any individual in the exercise or enjoyment of, or on account of his or her having exercise or enjoyed, or on account of his or her having aided or encouraged any other individual in the exercise or enjoyment of, any right granted or protected by the ADA.
  2. To state a claim for retaliation under the ADA, a plaintiff has to demonstrate: 1) involvement in a protected activity; 2) an adverse action; and 3) a causal link between the protected activity and the adverse action.
  3. Asserting one’s rights under the ADA can constitute a protected activity.
  4. With respect to the adverse action, plaintiffs allege that the adverse action occurred in the form of a threat of ejection in the presence of police officers in response to Rick Maya’s assertion of his father’s rights under the ADA. In response to Rick Maya asking the usher for an alternative wheelchair seat option after the usher notified them that Enrique Maya could not occupy the empty wheelchair seat, the usher radioed for security staff and a few minutes later, staff arrived. Such conduct by the defendant was effective in terminating the family’s effort to procure an accommodation for Enrique Maya’s disability, as they then went to their assigned seats (despite the significant difficulty they encountered moving Enrique Maya there), and remained there even after Enrique Maya needed to use the restroom.
  5. While the facts are sufficient to plausibly infer that defendants’ threat of ejection was a response to, and interfered with, their assertion of their rights under the ADA succeeding on the merits of the claim will necessitate proving that defendants’ action was a direct response to their assertion of rights and not simply to their insistence on occupying seats for which they did not have tickets, or refusal to vacate those seats, while the possibility of an alternative accommodation was being explored.
  6. If defendants had offered plaintiffs a reasonable alternative accommodation and threatened ejection only response to the family’s failure to vacate seats for which they did not occupy tickets, then plaintiff could not succeed on their claim for retaliation or interference. Whether that is the case, is a factual matter needing to be resolved and not appropriate for a motion to dismiss.

 

 

IV

Thoughts/Takeaways

 

  1. What is unusual about this case is that it involves a title III entity and its policies, practices, and procedures. The case stands for the proposition that Title III entities cannot have policies, practices, and procedures that discriminate against persons with disabilities.
  2. Facially neutral policies can be discriminatory. Here, only wheelchair users were required to purchase tickets in advance.
  3. I have said for decades that you have to be out of your mind not to engage in the interactive process even when an employment situation is not involved. It is hard to find Title III cases explicitly saying that an interactive process requirement exists, though it can be done. This case never uses the words, “interactive process.” However, it strongly implies that an interactive process requirement exists for Title III entities. The case talks about a failure of the defendants to offer reasonable modifications. It also talks about how the defendants never engaged in a back-and-forth to figure out what might work. Finally, the opinion mentions, “the possibility of an alternative accommodation being explored.” I definitely look for plaintiff’s attorneys to add this case to their arsenal when claiming that Title III entities have an obligation to engage in an interactive process. Imposing such a requirement makes sense because how else can you figure out what is a reasonable modification if you do not have an interactive process first. Finally, it should be noted that existing Title III regulations do talk about an interactive process being strongly encouraged when it comes to figuring out what is effective communications.
  4. The court seems to suggest that retaliation and interference are essentially the same thing. I don’t think they are. The court does a nice job of discussing retaliation and how that would play out. However, with respect to interference, readers will want to look at this blog entry, which defines interference as meddling. Based upon that blog entry as well as the court’s discussion of retaliation, one certainly sees how separate claims of interference and retaliation are both present in this case.
  5. This case comes pretty close to saying that a failure to accommodate is an adverse action by itself. Certainly, after Muldrow, which we discussed here, that certainly seem to be where the law is headed.
  6. Policies need to be continually assessed for their ADA compliance.
  7. Training (something I do a great deal of my practice), of personnel in ADA best practices and just what are the rights of persons with disabilities is super important.
  8. While “reasonable modification,” is the term for Titles II and III and “reasonable accommodation,” is the term for Title I, the two terms are entirely interchangeable.
  9. When it comes to the ADA, always perform an individualized analysis.
  10. Remember the do’s and don’ts of the interactive process, which we discussed here.
  11. I don’t see any not for publication notice in the opinion, so the opinion just might be published.

Our blog entry of the day reminds me of the situation where a team wins the football game but loses a key player in the process. I thought of that when reading EEOC v. Walmart Stores East, L.P., here, decided by the Seventh Circuit on August 27, 2024. As usual, the blog entry is divided into categories, and they are: facts; Walmart’s knowledge of plaintiff’s disability and the interactive process; sufficiency of evidence for punitives and compensatory damages should not be reduced; need to revisit the district court’s injunctive relief order; and thought/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

The person the EEOC went to court for, Marlo Spaeth (referred to in this blog entry as plaintiff for simplicity purposes), has Down syndrome. She spent 15 years working for Walmart on the 12 PM to 4 PM shift typically working up to four days per week, and never had any performance problems. In fact, over that time, plaintiff earned positive annual performance evaluations and steady raises. In none of her reviews was plaintiff cited for attendance problems.

 

November 2014, Walmart’s home office in Bentonville, Arkansas, issued a directive that managers were to cease making manual adjustments to computer-generated staff work schedules in the absence of a business justification for doing so. The computerized work schedules were intended to ensure that staffing met the needs of the store based on customer traffic patterns. Prior to this announcement, store managers had possessed the discretion to alter such schedules as they saw fit: indeed, managers at the Manitowoc store had exercised this discretion in Spaeth’s case in order to maintain her regular noon to 4:00 p.m. work schedule. (That modified schedule had never presented a problem for the domestics department to which Spaeth was assigned so far as Personnel Coordinator Becker was aware. R. 245 at 129, 131–32.) Under the new regime, although it was still possible to manually alter a computer-generated work schedule, managers no longer had the discretion to make such changes unilaterally; any such adjustments were subject to “a strict approval process.” R. 247 at 141. Moreover, if an employee’s declared work availability (as disclosed on a form that employees were required to complete) did not match the scheduling generated by the computer system, he or she was given no hours at all. This very thing happened to Spaeth in the immediate aftermath of the policy change: Her work availability form (completed in 2006) indicated she was available only from 12:30 to 4:00 p.m.3, and the computer did not schedule her for any shifts. When Spaeth complained, she was advised that she would now need to accept a 1:00 to 5:30 p.m. shift, which she did.

 

Persons with Down syndrome have a great difficulty of adjusting to changes. Accordingly, plaintiff had incredible difficulties in adapting to her new schedule. She frequently expressed to Walmart employees a desire to return to road schedule. Her work performance suffered significantly and she would clock out before her time ended on the new schedule. Eventually, Walmart terminated her for attendance issues and had her escorted from the store. After the termination, plaintiff’s sister and plaintiff’s mother subsequently met with several managers to discuss plaintiff’s termination. At those meetings, plaintiff’s sister expressly invoked plaintiff’s right to accommodation under the ADA and asked that plaintiff be given her job back and restored to her old work schedule. Walmart managers in attendance understood that they were asserting that plaintiff should have been given a schedule accommodation but was not. They also interpreted plaintiff’s sister’s remarks as a threat that the family intended to file suit if plaintiff was not reinstated and given her schedule back. Walmart then conducted an investigation and sustained the termination. As a result, the scheduling accommodation request was never explored in any detail.

 

A four day trial resulted in plaintiff receiving an award of $150,000 in compensatory damages and $125 million in punitive damages. The District Court reduced the punitive damages award to $150,000 in order to bring the total award in line with the ADA’s damages $300,000 for large employers. The court also awarded equitable relief in the form of $44,757.80 in back pay, $5978.63 in prejudgment interest, and $68,926.60 for tax consequences. The EEOC filed a motion asking that the court order the plaintiff reinstated to her position and also requested a variety of other injunctive measures pertaining to Walmart’s disability related policies and practices. The District Court agreed to order the plaintiff reinstated and also to order that Walmart contact plaintiff’s guardian regarding any future coaching, disciplinary, or other accommodation issues. The court declined to order the additional forms of injunctive relief requested by the EEOC that were aimed at preventing a recurrence of what happened to the plaintiff.

 

II

Walmart’s Knowledge of Plaintiff’s Disability and the Interactive Process

 

  1. Walmart knew plaintiff had a disability.
  2. That plaintiff had Down syndrome was obvious to Walmart’s managers and they said as much at trial.
  3. When plaintiff’s schedule changed, plaintiff exhibited immediate and obvious difficulties in complying with the new schedule. After 15 years of reliable work attendance, plaintiff was suddenly clocking out hours early, expressing fears that she would miss her bus or her dinner, and on multiple occasions with absent altogether without notice. When scolded about not working her new schedule, plaintiff repeatedly expressed confusion, insisting that her schedule was the old schedule and asking that she be restored to that schedule. A reasonably astute manager, having in mind the prior challenges of the plaintiff and experiencing handling new duties, might have considered whether her inability to adapt to the new schedule could be due to her Down syndrome.
  4. The jury could also found that any doubts on whether the difficulties in adjusting to her schedule were due to her disability were resolved when plaintiff’s sister, both before and after her discharge, expressly advised Walmart managers that the plaintiff could not adapt to the new schedule because of her disability.
  5. While Walmart was never given a Dr.’s note or other medical evidence supporting plaintiff’s sister assertions, the critical point is that Walmart never asked. Reviewing the evidence, the jury could have found that plaintiff and plaintiff’s sister have requested a schedule accommodation for plaintiff’s disability. At that point, Walmart would have been within its rights to act for medical evidence backing up the notion that the plaintiff required in the combination because of her Down syndrome, but things never progressed that far as Walmart dismissed plaintiff’s requests out of hand. If any of Walmart’s managers had asked plaintiff’s sister to supply such evidence and none was forthcoming, Walmart might have a point, but that isn’t what happened.
  6. Multiple cases within the Seventh Circuit have held that when clarification is needed as to the nature of an employee’s disability or the particular combination required, it is the employer’s responsibility to solicit that information from the employee. After all, Walmart knew better than anyone else what information it needed to evaluate plaintiff’s request for a schedule accommodation.
  7. If Walmart needed information from plaintiff’s physician supporting the requested accommodation, it was obligated to ask for it. In fact, that is what its own accommodation policy for Wisconsin employees actually stated.
  8. “There is ample evidence in the record that Wal-Mart was on notice that a schedule accommodation for Spaeth was medically necessary, particularly once Stevenson intervened on Spaeth’s behalf to advise Wal-Mart’s managers that Spaeth’s Down syndrome made it extremely difficult for Spaeth to adapt to her new work schedule. At that point, Wal-Mart had a duty to seek out from Spaeth and her family members whatever medical documentation it needed to corroborate the medical need for an accommodation and to explore what type of accommodation would be suitable.” (This particular paragraph is intentionally a direct quote from the opinion for reasons that will be explained in our thoughts/takeaways section. Also, Wal-Mart used to be spelled that way but has since changed to Walmart).

 

 

III

Sufficiency of Evidence for Punitives and Compensatory Damages Should Not Be Reduced

 

 

  1. Plenty of evidence existed that Walmart was recklessly indifferent to plaintiff’s statutory rights as an individual with a disability. See the rest of this section.
  2. Plaintiff’s sister intervened and told Walmart’s managers of the link between plaintiff’s disability and her trouble with the new schedule.
  3. Even after plaintiff’s mother and sister met with Walmart managers following plaintiff’s discharge and invoked her right to a schedule accommodation under the ADA, Walmart still did nothing to address the possibility of an accommodation.
  4. Walmart did not consider given what it was hearing from plaintiff’s family members (plaintiff’s disability may have contributed to her failure to show up for work and to her pattern of leaving work early). It also did not reconsider its rationale for discharging plaintiff in light of that information.
  5. Walmart did not ask plaintiff’s family for corroboration from a physician if that was what was needed.
  6. Walmart did not meaningfully consider whether it would have been feasible to grant plaintiff the scheduling accommodation she and her family members have requested. Instead, Walmart limited its post-discharge investigation to the question of whether plaintiff was in fact guilty of multiple attendance infractions despite warnings and, once it answered that question in the affirmative, deemed the discharge decision valid and considered the matter closed.
  7. Walmart personnel cut off communications with plaintiff’s family after the post-discharge meeting despite plaintiff’s sister invocation of the ADA and plaintiff’s right to an accommodation at the meeting.
  8. Walmart’s national ethics manager indicated that the managers at Walmart’s store that employed the plaintiff had been too lenient with plaintiff’s attendance infractions.
  9. In deciding whether compensatory damages should be reduced, one has to look at whether the jury’s verdict was rationally related to the evidence and also whether the award was roughly comparable to other awards made in similar cases.
  10. Given plaintiff’s disability, she had a limited ability to put into perspective the company’s decision to terminate her. Therefore, the jury might have found that plaintiff’s disability magnified her emotional injury, a viewpoint supported by the testimony given at trial by others.
  11. While it is true that plaintiff’s mother died not long after her termination and that may have been exacerbated her emotional injuries, emotional injuries often have multiple causes. That said, the jury was entitled to infer that Walmart’s decision to discharge the plaintiff was a major cause if not the primary cause of her resulting depression. For example, testimony showed that plaintiff covered her face whenever she saw a Walmart commercial.
  12. The award was also roughly comparable to compensatory damages awards in other cases. Multiple witnesses, including a medical doctor, established that plaintiff experience significant and lasting emotional distress and depression as a result of the loss of her job. Comparable cases have resulted in similar if not greater awards.

 

 

 

IV

Need to Revisit the District Court’s Injunctive Relief Order

 

  1. The trial court incorrectly wrote off all seven of the injunctions requested by the EEOC as “obey the law,” injunctions, particularly where some of them (including the provision requiring the company notify employees of the verdict and train its supervisors and managers regarding the propriety of schedule accommodations), related specifically to the type of misconduct that Walmart committed and are aimed at preventing a recurrence.
  2. There were at least two shortcomings in the way Walmart managers handled plaintiff’s request for reinstatement of her original work schedule. First, store personnel utterly failed to treat the request as a request for an accommodation and initiate the constructive give-and-take process that the ADA, case law, and Walmart’s own policies require, even after plaintiff’s sister alerted store manager to the connection between plaintiff’s disability and her difficulties in complying with her new work schedule. Second, Walmart’s manager were evidently under the impression that long-term schedule modifications could not be granted to an employee, a perspective arguably consistent with the company-wide directive issued to managers in 2014 that the computer generated schedules not be modified except for business reasons.
  3. While some of the circumstances were unique to the plaintiff, other circumstances were not-including the company’s unwillingness to entertain the possibility of a long-term schedule accommodation. While Walmart now says that its disability policies allow for long-term schedule accommodation, the contrary position they took at trial certainly presents the possibility that other employees might be denied such an accommodation if sought.
  4. The shortcomings of Walmart’s response to plaintiff’s request for a schedule accommodation raises the possibility that this may have been more than an isolated incident. Walmart is a national employer with over 1 million workers on its payroll. Accordingly, it is unlikely that the plaintiff would be the first or the last employee with a disability who might need a work schedule accommodation but who also might have difficulty invoking their rights under the ADA.

 

 

V

Thoughts/Takeaways

 

  1. The reason why I thought this case reminded me of the situation where a team wins a game but loses a key player is because of the court’s discussion of “medical necessity,” when it comes to reasonable accommodations. Regarding the court’s discussion of, “medical necessity” with respect to accommodations, there is absolutely no support in the applicable ADA statutes or in the final implementing regulations of either of EEOC or the DOJ for such a principal. On the employment side, the statute itself says it is discrimination to not make reasonable accommodations to the known physical or mental limitations of an otherwise qualified individualwith a disability who is an applicant or employee, unless an undue hardship is present. 42 U.S.C. §12112(b)(5)(A). 29 C.F.R. §1630.9(a) says that reasonable accommodations must be made to the known physical or mental limitations of an individual with a disability unless an undue hardship is present. Nowhere in either place does the term “medical necessity,” appear. Further, if you go beyond the employment world of the ADA to the world of accessing nonfederal governmental entities and to the world of accessing place of the public accommodations, you don’t see “medical necessity,” there either. For example, both the final implementing regulations for Title II and Title III have auxiliary aids and services requirements. They both demand that those services and aids be provided where necessary to ensure effective communication with individuals with disabilities. See 28 C.F.R. §§35.160(b)(1), 36.303 Outside of the effective communications sphere, the final implementing regulation for both Title II and Title III have very similar regulations with respect to the need to modify policies, practices, or procedures. Both of those regulations talk about whether they are necessary to allow a person with disability to access a place of public accommodations in various ways, or whether they are necessary in order for a person with the disability to avoid discrimination by a nonfederal governmental entity. See, 28 C.F.R. §§35.130(b)(7)(i), 36.302(a). You can be sure that defense lawyers will push for a “medical necessity,” requirement when it comes to reasonable accommodations. I have already seen a defense oriented blog make the statement that “medical necessity,” is a requirement when it comes to reasonable accommodations. It simply isn’t so. To require it to be so, would severely limit the congressional intent of the scope of the ADA in addition to it not being supported by either the statute or any of the final implementing regulations of either the EEOC or the DOJ. The language used by the court also seem to suggest that unnecessary medical inquiries can be made, which is not the case. So, the offending paragraph to be accurate with the statutory and regulatory provisions of the ADA should have read (the bolded language is my thoughts on what should have been changed for accuracy sakes from what appears in the opinion):

“There is ample evidence in the record that Wal-Mart was on notice that a schedule accommodation for Spaeth was related to her disability, particularly once Stevenson intervened on Spaeth’s behalf to advise Wal-Mart’s managers that Spaeth’s Down syndrome made it extremely difficult for Spaeth to adapt to her new work schedule. At that point, Wal-Mart had a duty to seek out from Spaeth and her family members the medical documentation necessary to corroborate the need for an accommodation and to explore what type of accommodation would be suitable.”

 

  1. Magic words are not required to activate the interactive process as we have talked about numerous times before, such as here. Of course, the closer a plaintiff can get to magic words the better off they are. In this case, magic words were used and that may have been a factor in the court’s upholding the punitive damages award.
  2. Legislation has been introduced to get rid of the statutory damages caps. I don’t see any of that happening before the election. Whether anything happens after the election will inevitably depend upon election results.
  3. Employers are always asking for litigation if they take away an accommodation that is working for a particular employee.
  4. Remember the do’s and don’ts of the interactive process, which we discussed here.
  5. It is the employer’s responsibility to seek clarification of any reasonable accommodation request and not the employee.
  6. In Title I cases, punitive damages are a possibility.
  7. This court says that to find emotional injuries, it is sufficient for plaintiff to show that the termination was a major cause of those emotional injuries. Emotional causes often have multiple causes and termination being a sole cause is simply not necessary to recover emotional injuries.
  8. “Obey the law,” injunctions are more favorably thought of when they are specifically related to the underlying facts at issue.
  9. The Job Accommodation Network had just come up with a tool whereby anyone can go online to try and figure out what kind of an accommodation might work in various situations. Of course, it isn’t a substitute for legal advice but nevertheless could be helpful. Before this tool, I would just call them up and asked for their opinion. I could see why this tool could be really useful and more efficient, especially if the search engine is top-quality. Keep in mind, I have not tried the tool out myself yet. It can be found at https://askjan.org/sitsol/index.cfm .
  10. I do not see any “not for publication,” notice on the opinion. So, this very well may be a published opinion. If so, that makes the discussion in §V(1) of this blog entry even more significant.
  11. ADA training should be conducted by knowledgeable individuals (it is something that I do quite a bit up in my practice), and the training should not be a one-off.

 

Before proceeding with today’s blog entry, I want to wish everyone celebrating a happy new year. I realize that my blog entry is late this week, but I have a good reason for it. We got back from parents weekend last Sunday, then had to deal with Helene damage, which fortunately was not anything that couldn’t be handled, and then we had the Jewish new year.

 

The blog entry of the week continues our theme from last week, which is nondelegable duties of Title II entities and how they may face direct liability for that delegation or for ignoring their obligations. The case of the week is Access Living of Metropolitan Chicago, Inc. v. City of Chicago, here, a summary judgment denial decided by the United States District Court for the Northern District of Illinois on September 30, 2024. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning denying summary judgment on the ADA and §504 claims; court’s reasoning denying summary judgment on the FHA claim; court’s reasoning finding a continuing violation for statute of limitation purposes; court’s reasoning that Access Living has a private right of action to sue the City under each of the federal accessibility laws; court’s disposition; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

The City of Chicago receives $100 million annually from the US Department of Housing and Urban Development for the purpose of building, preserving, and rehabilitating affordable housing properties. The City of Chicago doesn’t do that rather it is done by developers and nonprofits. The City’s development contracts with developers gives developers funds or tax credits and in return, the developer is obligated to comply with federal and state laws, including §504 and Title II of the ADA. Developers must also document compliance with accessibility requirements and the contract sets out remedies for noncompliance. Once the building is completed, the Chicago Housing Department must inform HUD and the public that the building was inspected and incorporated federal accessibility requirements. The City of Chicago also plays a considerable role in the design and construction of affordable housing developments. For example, developers have to apply for a building permit issued by the City’s Department of Buildings. During the permit process, the City’s Mayor’s Office for People with Disabilities reviews the building plan for compliance with federal, state, and local accessibility laws and standards.

Access Living sued saying that there was a lack of sufficient supply of accessible affordable housing units leaving Chicagoans with certain disabilities unable to find affordable housing.

 

II

Court’s Reasoning Denying Summary Judgment on the ADA and §504 Claims

 

  1. With respect to disability discrimination in housing, Congress specifically found, 42 U.S.C. §12101(a)(5), that individuals with disabilities continually encounter various forms of discrimination, including the discriminatory effects of architectural barriers even in housing.
  2. §504 requires that individuals with disabilities be provided with meaningful access to the benefit that the grantee offers, which includes the benefit of the elimination of architectural barriers.
  3. City of Chicago receive federal funds under §504. In particular, it received federal funding from HUD for the purpose of providing affordable housing for Chicagoans.
  4. §504 includes all of the operations of the local government or the entity of such local government distributing such assistance. See 29 U.S.C. §794(b)(1); 24 C.F.R. §8.3.
  5. A violation of Title II of the ADA or §504 means proving: 1) a qualified individual with a disability 2) was denied the benefits of the services, program, or activities of a public entity 3) because, or on the basis of their disability.
  6. A reasonable jury could find that the affordable housing scheme is a service, program, or activity of the City.
  7. Neither the statutory language nor the regulations shine much light on what kinds of undertaking the statutes are meant to cover. However, the regulations do suggest that the scope of protection is broad, applying to all services, programs, and activities provided or made available by public entities. See 28 C.F.R. §35.102(a).
  8. The Seventh Circuit has identified two different principles to help courts work out when a service, program, or activity of a governmental agency is involved. First, a governmental entity cannot avoid its obligations under the statute by ceding its governmental functions to private entities. Therefore, the question is whether the affordable housing scheme is a program or activity where the city itself is doing, providing, or making available the affordable housing, rather than the private developers. Second, governing regulations contemplate that liability may attach to some relationships between public and private actors. That is, a public entity may not discriminate on the basis of disability, directly or indirectly, such as through contractual, licensing, or other arrangements. See 28 C.F.R. §35.130(b)(1).
  9. The City may not avoid liability by framing its role in the affordable housing scheme as merely providing funding tax credit to developers in a way that completely absolves the City from its own duty of complying with the federal accessibility laws. To hold otherwise, goes directly against the principle that the City may not avoid its obligations under the statute by ceding its governmental function to private entities. Saying this, is not the same thing as saying that any time a municipality provides some funding to private entities, the government then becomes liable for any of the project’s failures or legal violations.
  10. The contracts the City enters into with the developers contemplate the general oversight or compliance obligation on the City by requiring the developers to comply with federal laws before receiving funding. For example, the City agrees in those contracts, per the municipal code of Chicago, to supervise and coordinate the formulation and execution of projects and programs so as to create safe, decent, and affordable housing for residents of the City. Certain agreements even explicitly require the developer to comply with §504 and the ADA and permit the City to inspect the developments for compliance. Accordingly, this contractual relationship between the City and the developers is evidence that the affordable housing scheme is a program or activity made available by the City.
  11. The City cannot cede its governmental functions-ensuring compliance with federal accessibility laws-to the developers.
  12. The City has a regulatory obligation to ensure that private developers comply with the federal accessibility laws. For example, the city is required to comply with HUD program requirements and to monitor subcontractors for such compliance. This includes an obligation that HUD recipients inspect each project for compliance with the federal accessibility laws and other property standards, both upon completion of the building and also periodically during the rental property’s affordability in order to ensure ongoing compliance.
  13. Title II regulations requires accessibility and facility newly constructed or rehabilitated by, on behalf of, or for the use of a public entity. 28 C.F.R. §35.151(a)(1). If recipient of federal funds could evade liability by simply placing the burden on third parties with which the recipient enters into a contract, then the statute would lose much of their force.
  14. If a jury finds that the affordable housing scheme is a program or activity of the City, then the program in its entirety must comply with federal accessibility laws even if developments do not directly receive federal funds by way of the City. The development must comply with the ADA because a public entity, the City, is providing the service or program.
  15. Even though certain developments do not receive federal funds, the entire program must comply with §504 because the statute defines “program or activity,” as “all of the operation,” of the funding recipient. 29 U.S.C. §794(b)(1); 24 C.F.R. §8.3.

 

III

Court’s Reasoning Denying Summary Judgment on the Fair Housing Act Claim

 

  1. Discrimination under the Fair Housing Act includes a failure to design and construct those dwellings in such a manner that they are readily accessible to and usable by handicapped persons and contain best-of-five features of adaptive design. 42 U.S.C. §3604(f)(3)(C).
  2. A reasonable jury can find that the City have to comply with the FHA because of Chicago’s role in the design and construction of the affordable housing developments.
  3. The FHA’s prohibitions are not directed at a specific actor, rather the prohibition bans an outcome without requiring who the actor is, or how such actors discriminate against potential tenants. As such, it is reasonable to hold that the City-,in its role in providing funding for housing developments, approving construction and rehabilitation of the development, and its contractual obligation to ensure that the development comply with federal law-, discriminated against a person in the conditions of sale or rental of a dwelling because of a failure to design and construct those dwellings in such a manner that is readily accessible to and usable by handicapped persons.
  4. Question of fact exists as to whether the City is responsible for the property based upon the City’s extensive role in the affordable housing scheme.

 

IV

Court’s Reasoning Finding a Continuing Violation for Statute of Limitation Purposes

 

  1. The City engaged in a pattern of discrimination in its affordable housing scheme so that there is a continuing violation of the federal accessibility laws.
  2. The Seventh Circuit currently recognizes the continuing violation exception for FHA discriminatory practice claims but has yet to apply the exception to ADA or §504 claims. Given the similarity of the statutes and the close relationship of the claims, and consistent with other district courts, the continuing violation exception applies to Access Living’s ADA and §504 claims.
  3. Access Living in its complaint challenges the City’s ongoing failure to comply with and enforce the federal accessibility laws. They are not challenging a single or multiple past violations. The distinction is important. If Access Living were to claim that his client were suffering the ongoing effects of noncompliant housing, like a building having a defective elevator, much of the claim would likely not fit the continuing violations exception. However, it is a different story here because Access Living is alleging an ongoing, systemic failure of the City to fulfill what contractual and statutory obligations, which is a completely different matter altogether. That kind of failure is ongoing and not a single isolated incident. Also, each day brings with it a renewed violation of the laws because the City is not performing its statutory duties.

 

V

Access Living Has a Private Right of Action to Sue the City under Each of the Federal Accessibility Laws

 

  1. Access Living has a private right of action to sue the City under each of the federal accessibility laws.
  2. Private rights of action to enforce federal law must be created by Congress. To determine whether a statute creates a private cause of action, the statute Congress passed must be looked at in order to determine whether it displays an intent to create not just the private right of action but also a private remedy.
  3. The City does not actually contest that each of the federal accessibility laws contains a private right of action, rather they are saying that the regulations themselves do not contain a private right of action. However, that position misreads the complaint. Access Living only cites the regulations in order to provide the background and the definitions necessary to apply the statutory provisions. Access Living is not asking for the enforcement of the regulations that it cites in its complaint. In this case, each statute supplies a cause of action and Access Living falls within the intended class of plaintiffs of each statute.

 

VI

Court’s Disposition

 

  1. Summary judgment is denied.
  2. Question for the jury include: 1) how the facts apply to the definitions of program or activity in order to trigger the application of the federal accessibility laws; 2) whether the City’s involvement in design and construction trigger the obligation under the FHA; and 3) whether the continuing-violations exception apply to set the proper statute of limitations.
  3. The parties are ordered to engage in good faith settlement negotiations. If negotiations stall or falter, then a trial schedule will be set. The parties have to file a status report on or before November 4, 2024, on the status of negotiations and the proposed next step of the litigation.
  4. During pretrial litigation, the parties are to address whether the court would be bound for purposes of injunctive relief by any jury decision on liability as well as what the damages presentation at trial would entail.
  5. The court believes that both sides would want to minimize the risks and delay of further litigation, and that the City naturally would want to fashion affordable housing program promoting compliance with federal accessibility laws.

 

VII

Thoughts/Takeaways

 

  1. The whole idea of the ADA being a nondelegable duty started with the Nevada Supreme Court, and it started catching on after that. Now we are seeing that the courts are holding Title II entities to a high standard. That is, the you are now seeing courts having none of it if the Title II entity either delegates its ADA responsibilities to someone else or just ignores what it has to do with ensuring that others comply with their ADA responsibilities.
  2. In many ways, this case resembles Rolf Jensen when the Nevada Supreme Court discussed how Mandalay Bay still had the duty to ensure that the architect was getting it right with respect to building out its facility in accordance with the ADA. We discussed that case here.
  3. This week’s blog entry as well as last week’s blog entry have important implications beyond the context of these two cases. For example, medical licensing boards, as we discussed here, routinely offload, or possibly even ignore, their ADA responsibilities in favor of deferring to third parties.
  4. This was not an equal protection case, but the court notes that housing discrimination is specifically mentioned in the findings to the ADA as amended. As such, a strong argument would be created that a State forcibly waives sovereign immunity should they be sued in a similar way. Municipalities are not subject to sovereign immunity.
  5. Extensive case law exists saying that Title II of the ADA applies to all operations of a governmental entity. You need to look at 29 U.S.C. §794 to see which kinds of entities have §504 apply to all of their operations and activities. For example, local governmental entities, healthcare entities, and educational entities all have to have all of their operations meaningfully accessible to persons with disabilities.
  6. It is rare to see a federal court say that a continuing violation is occurring. This court found the continuing violation because of the pattern of discrimination alleged.
  7. It is also difficult to sue for violating regulations rather than a statute. After Loper Bright, which we discussed here, that may or may not become even more so the case. Here, Access Living did a great job of showing the court that they were alleging statutory violations and that the regulation just provided background. That approach is even more necessary now after Loper Bright where a plaintiff is suing for violations of something clearly prohibited by a regulation.
  8. The trial judge in it disposition of the case very strongly encourages settlement. It will be interesting to see if that occurs. The Seventh Circuit, less so at the trial level, can be very friendly to those defending disability discrimination claims.
  9. “Handicapped,” is still used in the Fair Housing Act (FHA) unfortunately. It is highly offensive to persons with disabilities and should be stayed away from at all costs unless citing to it in a specific statute.
  10. The ADA, FHA, and §504 are all nondelegable duties!!!!!!

On Friday of last week, I presented to the Minnesota CLE Health Law Institute in Minneapolis on working with disabled clients and disabled attorneys. One of the cases that came up is the one that we are going to be talking about this week, Battle v. state of Tennessee, here, decided by the Middle District of Tennessee on September 6, 2024. If the reasoning of this case proves persuasive in other courts, this decision could be a very big deal indeed for the reasons we will discuss. As usual, blog entry is divided into categories, and they are: facts; court’s reasoning that Tennessee can be directly liable for failing to ensure the group homes carry out their obligations to Deaf residents; court’s reasoning that sovereign immunity applies to Title II damage claims but not to Rehabilitation Act damage claims; Disability Rights Tennessee has standing to sue; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

The facts of the case can be greatly simplified from what is in the opinion. In Tennessee, you have two different state entities responsible for administering services supporting Tennesseans with disabilities. You have the Department of Intellectual and Developmental Disabilities (DIDD), and you also have the Department of Mental Health and Substance Abuse Services (DMHSAS). They each deal with different disabilities. DIDD is responsible for system planning, setting policy and quality standards, system monitoring and evaluation, disseminating public information, and advocacy for persons of all ages with the disabilities it serves. DIDD publishes a detailed provider manual setting forth directive to licensees. The provider manual informs licensees that it is participating in the Tennessee service delivery system for individuals with intellectual and developmental disabilities by being a party of the provider network. As such, the manual explained that private providers are partners in the common goal to provide quality, person-centered and cost-effective services to individuals with intellectual and developmental disabilities. It requires person-centered plans.

 

DMHSAS provides direct services through regional mental health institutes and licenses certain types of residential facilities for adults with mental illnesses. Those facilities are formally referred to as Mental Health Adult Residential Facilities and Mental Health Adult Supported Residential Facilities, but they can be described collectively as mental health group homes. DMHSAS, as does DIDD, engages in a mixture of direct service provision, licensure administration, and regulation.

 

Disability Rights Tennessee, the Protection and Advocacy group for Tennessee, on behalf of several individuals in group homes regulated by each of the above agencies sued saying that the people they were suing on behalf of were not receiving effective communication. All of the plaintiffs identified ASL as their primary language. Each of the group homes were privately operated. However, the plaintiffs alleged that the state of Tennessee was responsible for the group homes failures because it had the responsibility of developing and overseeing the group homes and failed to provide or require the following: 1) appropriate communication evaluations conducted by a person fluent in ASL and familiar with culturally deaf individuals; 2) programs, services, and activities offered with signing staff or qualified sign language interpreters; 3) qualified sign language interpreters for planning meetings; 4) qualified mental health sign language interpreters for mental health treatment; 5) qualified sign language interpreters for habilitative, rehabilitative, behavioral, occupational, vocational, community, and other services; 6) coordination of and scheduling qualified sign language interpreters for medical appointments; 7) provision of group homes meeting the communication needs of culturally deaf individuals including but not limited to, sign fluent staff and necessary assistive technology, such as videophones, flashing fire alarms, and bed shaker alarms; 8) ongoing, strong connection with the culturally deaf community including but not limited to sign fluent interpreters and continued ASL exposure; 9) person-centered planning and supports. The allegations with respect to DMHSAS failures were substantially similar as to DIDD’s failures with language changes recognizing that different disabilities were involved.

 

II

Court’s Reasoning That the State of Tennessee Can Be Directly Liable for Failing to Ensure the Group Homes Carry out Their Obligations to the Deaf, culturally deaf, Individuals They Serve

 

  1. While Title II of the ADA and §504 are different in their sources (civil rights v. spending power), they both prohibit discrimination against persons with disabilities under a paradigm very similar to each other. So, the two statutes get interpreted the same way.
  2. In order to prevail, a plaintiff has to establish that: 1) plaintiff has a disability; 2) plaintiff is otherwise qualified for the benefit or services at issue; and 3) plaintiff was excluded from participation in, denied the benefits of, or was subjected to discrimination under the program by the defendant because of plaintiff’s disability.
  3. 28 C.F.R. §35.130(b)(6) provides that: “a public entity may not administer any licensing or certification program in a manner that subjects qualified individuals with disability to discrimination on the basis of disability, nor may a public entity established requirements for the programs or activities of licensees or certified entities that subject qualified individuals with disabilities to discrimination on the basis of disability. The programs or activities of entities that are licensed or certified by a public entity are not, themselves, covered by this part.” As phrased, this regulation leaves open the possibility of liability based upon an agency’s operation of the licensure authority in a manner resulting in discrimination.
  4. 28 C.F.R. §35.130(b)(6) recognizes that a government agency’s decision to rely on a privatized and license model rather than on a direct services model, does not inherently excuse it from its antidiscrimination obligations in performing the underlying public services.
  5. Plaintiff’s have adequately pleaded that the group home licensure system and practice are mechanisms by which those two agencies themselves render public services. Further, the plaintiffs allegations largely focused not on the day-to-day operation of group homes, but on the defendant agency roles in coordinating care and setting minimum standards-both of which are services the agency to provide, even if they do not pay for the underlying placements.
  6. Every group home in which the plaintiffs resided was allegedly part of the care system developed and shaped by the defendant agencies in furtherance of those agency specific and acknowledged statutory responsibilities and for the express and intentional benefit of individuals like the plaintiffs.
  7. The agency powers, responsibility, and missions when combined with the allegations in the complaint, are sufficient to establish, for pleading purposes, that the agencies are administering their licensure authority in a manner subjecting qualified individuals with disabilities to discrimination in the provision of public services, including with regard to both care itself and any associated case management services over which the agencies exercise direct or indirect control. Going forward, the plaintiffs still have the ultimate burden to establish that the agencies actually used the kind of authority that the plaintiff’s claim and that the agency’s actions do in fact result discrimination the provision of public services.

 

II

Court’s Reasoning That Sovereign Immunity Applies to Plaintiffs Title II Claims for Damages But Not to the Rehabilitation Act Claims for Damages

 

  1. Title II of the ADA contains statutory language forcibly waving sovereign immunity.
  2. With respect to whether Title II forcibly waives a state’s sovereign immunity, the approach works as follows: 1) forcible waiver is applied where the alleged misconduct violates both Title II and a plaintiff’s constitutional rights under the 14th Amendment (including the incorporation of any of the Bill of Rights into that amendment); 2) where the conduct violates Title II but not the 14th Amendment, the court must consider whether sovereign immunity applies to that class of conduct. Doing that, means looking to whether the statutory scheme with proportional to the harm being redressed. It essentially means determining what equal protection tier a person with a disability falls in with respect to the facts of that particular case.
  3. Citing to Board of Trustees of the University of Alabama v. Garrett, States are not required by the 14th Amendment to make special accommodations (term “special accommodations,” appears in the opinion itself), for the disabled so long as their action toward such individuals are rational.
  4. With respect to §504 to Rehabilitation Act, sovereign immunity poses no obstacle because Tennessee waived sovereign immunity in return for accepting federal funds. It also provides no basis for dismissing Title II claims for injunctive relief as the 11th Amendment does not bar an ADA Title II claim for prospective relief against state officials in their official capacities.

 

III

Disability Rights Tennessee Has Standing

 

  1. The unique structure of Protection and Advocacy systems create something of a challenge for traditional standing principles.
  2. Protection and Advocacy agencies are entrusted with roughly the equivalent of enforcement power by the federal and state governments, but lack the government’s standing to enforce its own laws.
  3. Protection and Advocacy organization must rely on the principle that an association for standing to sue on behalf of its members when: 1) its members would otherwise have standing to sue in their own right; 2) the interests at stake are germane to the organization’s purpose; and 3) neither the claim brought nor the relief requested requires the participation of individual members in the lawsuit.
  4. The individuals for whom a Protection and Advocacy agency is called on to protect are typically not members of the organization or more like constituents or beneficiaries. Therefore, in the absence of a formal membership structure, the Protection and Advocacy agency can rely on the constituent for the purposes of standing only if it can establish a sufficient indicia of membership. So, a Protection and Advocacy organization has standing to assert the injuries of any constituent with whom it has a demonstrated relationship sufficient to establish the indicia of membership.

 

 

IV

Thoughts/Takeaways

 

  1. This case basically involves the principle that the ADA and the Rehabilitation Act are nondelegable duties (see this blog entry). Not carrying out those duties can potentially lead to direct liability even if the nonfederal governmental entity is not the one administering the programs and activities.
  2. The court gets it wrong with respect to stating that failure to accommodate cases fall within the rational basis class. That simply isn’t true. Failure to accommodate (actually, any suit for damages against an employer by a person with a disability), in the employment context per Board of Trustees of the University of Alabama v. Garrett, here, does fall within the rational basis class. However, that is not the same thing as saying that failure to accommodate always falls in the rational basis class. That simply isn’t true. For example, in Tennessee v. Lane, here, the court held that the specific equal protection tier that a person with a disability falls into depends upon the individual facts of the case. They also held that with respect to accessing the courts, a person with disabilities are at least in the intermediate scrutiny class if not higher. So, it simply isn’t right to say that failure to accommodate cases regardless of the context they occur in, fall within the rational basis class.
  3. The reasoning of this decision essentially sets up a system of vicarious liability. I have a hard time with saying that vicarious liability applies to the ADA and Rehabilitation Act in light of their statutory scheme and the case law over the years. That said, there is another way the court could have gone about it. There are numerous other regulatory provisions that offered a tighter fit for independent liability of the nonfederal governmental entities. Those regulatory provisions include 28 C.F.R. §§35.130(b)(1)(i-v,vii), (b)(2), (3), immediately below:

 

(b)

(1) A public entity, in providing any aid, benefit, or service, may not, directly or through contractual, licensing, or other arrangements, on the basis of disability—

(i) Deny a qualified individual with a disability the opportunity to participate in or benefit from the aid, benefit, or service;

(ii) Afford a qualified individual with a disability an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded others;

(iii) Provide 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, or to reach the same level of achievement as that provided to others;

(iv) Provide different or separate aids, benefits, or services to individuals with disabilities or to any class of individuals with disabilities than is provided to others unless such action is necessary to provide qualified individuals with disabilities with aids, benefits, or services that are as effective as those provided to others;

(v) Aid or perpetuate discrimination against a qualified individual with a disability by providing significant assistance to an agency, organization, or person that discriminates on the basis of disability in providing any aid, benefit, or service to beneficiaries of the public entity’s program;

(vii) Otherwise limit a qualified individual with a disability in the enjoyment of any right, privilege, advantage, or opportunity enjoyed by others receiving the aid, benefit, or service.

(2) A public entity may not deny a qualified individual with a disability the opportunity to participate in services, programs, or activities that are not separate or different, despite the existence of permissibly separate or different programs or activities.

(3) A public entity may not, directly or through contractual or other arrangements, utilize criteria or methods of administration:

(i) That have the effect of subjecting qualified individuals with disabilities to discrimination on the basis of disability;

(ii) That have 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; or

(iii) That perpetuate the discrimination of another public entity if both public entities are subject to common administrative control or are agencies of the same State.

 

  1. A separate question is whether 28 C.F.R. §§35.130(b)(1)(i-v,vii), (b)(2), (3) would survive Loper Bright, discussed here. I think a strong argument exist that it would because these regulations are very closely tied to the statutory language of the ADA. Keep in mind, we don’t actually know what is the standard that courts will use in deciding that regulations are extremely persuasive to a matter being considered by the court. Things would have been a lot simpler if Loper Bright had said that Kisor v. Wilkie, here, applied to final regulations as well to agency interpretations of their regulations.
  2. If this decision holds, it has absolutely huge implications in other worlds. For example, medical licensing boards delegations of their duties to PHPs is one such area.
  3. The court gives a nice discussion of how standing works with Protection and Advocacy groups. Every state has a Protection and Advocacy group. What they do vary considerably from state to state as well as the amount of litigation that they get involved in.
  4. Deaf or deaf mean very different things. Deaf means: 1) ASL or a sign language is the primary language; 2) 65-120 db hearing loss; and 3) attended a state school for the deaf. Deaf is just someone with a severe to profound hearing loss, 65-120 db.
  5. Until this case, I never thought of licensing regulatory provisions of the regulations as applying in this context. I always viewed the licensing regulatory provisions as applying to the licensing of professionals. Was I being too narrow? Maybe, maybe not. I might not have been because the very last sentence of that regulatory provision says that the programs and activities conducted by the licensee are not covered by that particular provision. Regardless, as noted in §IV(3) of this blog entry, there are numerous other regulatory provisions applicable to this kind of situation.
  6. This case involved a motion for judgment on the pleadings.
  7. You can’t get damages under Title II and §504 simultaneously. It is either one or the other. So, I am not sure it matters if Title II damages claims were dismissed when the §504 claims were allowed to go forward.
  8. “Special accommodation,” is a term that drives disability activists absolutely bonkers. Use “reasonable accommodations,” or “reasonable modification,” instead. Nothing special at all about the accommodations a person with a disability needs to get to the same starting line as a person without a disability as it is a matter of right.
  9. Sovereign immunity, with one very rare exception, here, does not apply to prospective relief against officials sued in their official capacity.

Before getting started on the blog entry for the week, I did finish Over Ruled. What is clear from reading the book, is that Justice Gorsuch clearly believes that the administrative state had gotten too big and that sufficient guardrails for the administrative state do not exist. Also, from reading that book, it is pretty clear to me that he would think Loper Bright overruled Kisor v. Wilkie. So, administrative regulations he will uphold will have to have a very tight relationship to the particular statute and even more so with respect to any guidances. It will be interesting to see what standard ultimately comes into being with respect to carrying out Loper Bright.

 

This week’s blog entry returns us to Batson challenges. Batson is a criminal version but there is also a civil version as well. It seems that everything goes by Batson in terms of the vernacular regardless of whether it is a criminal or civil division issue. Consider the following. In response to a Batson challenge in Illinois in the case of the People of the State of Illinois v. Wright, decided by the Appellate Court of Illinois, First District, on May 31, 2024, here, the prosecutor says as the reason for exclusion:

 

“In addition to his questionable demeanor-when I say demeanor, that’s what I’m talking about, that back and forth in the not volunteering any information and not listening to the questions. He was young, he was living at home, and the concern there is that he also was a young African-American who might identify with the defendant who was around the same age at the time that this offense, the actual shooting of Officer Bansley, was committed.”

 

In Colorado, in the case of People of the State of Colorado v. Romero, here, decided by the Colorado Supreme Court on September 9, 2024, the prosecutor says as the reason for exclusion:

 

“So, Your Honor, I reason for striking with due to the fact that he appeared very disinterested and kind of had seemed to have a wandering mind at times when the court was reading the instructions and going over concepts,… When we were asking questions of everyone, he just didn’t seem particularly focused or interested in what was going on.”

 

This blog entry will explore why the Batson challenge gets thrown out in Colorado but upheld in Illinois. As usual, the blog entry is divided into categories and they are: how Batson works; Colorado Supreme Court’s reasoning in Romero on why the Batson challenge fails; Illinois appellate court’s reasoning in Wright as to why the Batson challenge prevails; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

How Batson Works

 

  1. Batson deals with peremptory challenges, which is the ability of a trial attorney to excuse a prospective juror for any reason whatsoever. Batson says that a process needs to occur if an attorney challenges the exclusion of jurors based upon a protected characteristic.
  2. The process works like this: A) the person making the Batson challenge bears the burden of making a prima facie showing that the strike was based on a protected characteristic; B) the person striking the prospective juror bears the burden of articulating a neutral reason for the strike; and C) the trial court then determines whether the person making the Batson challenge has met the burden of showing by a preponderance of the evidence purposeful discrimination against a person with the protected characteristic.
  3. The court’s conclusion as to whether to allow a Batson claim does not get disturbed unless it is clearly erroneous.

 

II

Colorado Supreme Court’s Reasoning in Romero on Why the Batson Challenge Fails

  1. Clear error standard of review is highly deferential to trial courts because trial courts are in a unique position to make first-hand observations related to demeanor and credibility.
  2. When it comes to Batson challenges, the burden of proof always rests with the objecting party, i.e. the person making the Batson challenge. That objecting party must show by a preponderance of the evidence that the peremptory strike in question was motivated by purposeful discrimination.
  3. The trial court was unable to independently say whether the juror was disinterested.
  4. It is not up to the appellate courts to conduct a de novo review (a review from the beginning without considering what the trial court did), when it comes to Batson challenges. An appellate court is precluded from substituting its reading of the cold record for the trial court’s in the moment and better informed determination. As such, an appellate court must give deference to a trial court’s ruling on a Batson challenge so long as the record: 1) reflected that the trial court considered all relevant circumstances; and 2) supported the trial court’s ruling as to whether the objecting party crew purposeful discrimination on the basis of a protected characteristic by a preponderance of the evidence.
  5. In a footnote, the Colorado Supreme Court noted that “race,” encompasses both race and ethnicity.
  6. In a footnote, the Colorado Supreme Court notes that as a practical matter the Batson steps, particularly at step one and two, often get combined into a single instance so that it becomes impossible for the court to separate out step one from step two.
  7. A trial court’s finding that a prosecutor’s articulated reason for excluding a prospective juror is credible does not require such a finding to be explicit.
  8. Batson challenges have been difficult and unwieldy to apply both at trial and on appellate review.
  9. Batson challenges have been in the line of fire for nearly 40 years as an ever-growing number of courts and commentators have exposed the troublesome flaws and validated Justice Marshall’s dire prognostication that Batson would prove ineffective.
  10. Some states have abolished peremptory challenges altogether, such as in Arizona.
  11. Some Colorado Supreme Court justices have suggested doing away with Batson challenges. However, that decision ultimately lies with the Colorado legislature because peremptory strikes are provided by statute and not by court rule as was the case in Arizona.
  12. Batson challenges have to continue so long as the Colorado legislature continues to allow for peremptory strikes.
  13. It isn’t hard for a person making a Batson challenge to satisfy step one of the Batson process. Although a person making the challenge have to show that the totality of the circumstances gives rise to an inference of motivation based upon a prohibited characteristic.
  14. A neutral reason that an attorney must make in response to a Batson challenge means a reason based on something other than the protected characteristic of the prospective juror. When considering that neutral reason, the trial court may not consider the plausibility or persuasiveness of the stated reason. All a court can consider is whether on its face the reason is not based upon a protected characteristic. In other words, the question is whether assuming the reason for the peremptory challenge is true, the challenge is based on something other than the protected characteristic.
  15. Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason will be deemed to be neutral.
  16. At the final step of Batson, the trial court has to consider the persuasiveness of the striking party’s reason for the peremptory strike in light of any rebuttal offered. In doing that, the trial court must ponder all of the relevant circumstances bearing upon the issue of purposeful discrimination. Those relevant circumstances include, but are not limited to: 1) the striking party’s demeanor; 2) the reasonableness of the offered explanation that it was not based upon a protected characteristic; 3) whether the rationale advanced is rooted in accepted trial strategy; and 4) the plausibility of the striking party’s nondiscriminatory explanations.
  17. The ultimate burden of persuasion regarding motivation based upon a protected characteristic rests with and never shifts from the person opposing the Batson challenge. After all, the opponent of the strike is the party alleging purposeful discrimination based upon a protected characteristic.
  18. In considering whether the objecting party has shown discrimination by a preponderance of the evidence based upon a protected characteristic, the test to use is the substantial motivating factor test. That is, if the peremptory strike was motivated in substantial part by discriminatory intent, the Batson challenge gets upheld.
  19. An implausible or fantastic explanation for a strike upper peremptory juror should probably be found to be a pretext for purposeful discrimination based upon a protected characteristic.
  20. In a typical peremptory challenge inquiry, the decisive question will be whether counsel’s neutral explanation for peremptory challenge should be believed. However, there is seldom much evidence pertaining to that issue.
  21. Credibility of a neutral reason is intrinsically difficult to assess because the exercising of peremptory strikes is often a matter of instinct and even articulating a reason for a strike can be difficult.
  22. The demeanor and credibility of the attorney exercising the peremptory strike frequently constitute the best evidence of whether the objecting party can establish purposeful discrimination, which is a matter particularly suited for the trial judge.
  23. The preferred practice is to have trial court make explicit demeanor and credibility findings because such findings are helpful on appellate review.
  24. Implicit demeanor and credibility findings are okay, but what is not okay is no demeanor and credibility findings, explicit or implicit. In this case, the trial court implicitly found that the prosecutor’s neutral reasons were credible and sincere. At no point did the trial court state or even hint that it thought the prosecutor was being disingenuous or untruthful.
  25. The question to consider in a Batson challenge is whether affirmative evidence in the record existed refuting the alleged neutral reason for the strike given by the attorney making the strike.
  26. While the prosecutor’s reason was subjective, the trial court realized that it still could be the basis for a valid peremptory challenge.
  27. Trial judges are urged to make explicit demeanor and credibility findings when making their ultimate ruling on a Batson challenge.
  28. In many cases a subjective demeanor based reason will not be enough to survive clear error review because of the highly deferential standard given to trial courts when making Batson determinations.

 

III

Illinois Appellate Court’s Reasoning in Wright As To Why the Batson Challenge Prevails

 

  1. At step two of the Batson process, a neutral explanation is one based upon something other than the protected characteristic. The prosecutor has to give clear and reasonably specific, legitimate, neutral based reasons for the strike.
  2. A legitimate reason is not a reason that makes sense, but is a reason that does not deny equal protection.
  3. Discriminatory intent may found to be inherent in an explanation where the offer of a supposedly neutral explanation has an ingredient based upon a protected characteristic.
  4. The prosecutor’s reasons challenging the prospective juror based upon his demeanor and status as a young African-American male creates an inference of purposeful discrimination.
  5. The court could not find that the prospective juror’s behavior demonstrated disinterest or disrespect any more than it shows cooperation with the questioning process.
  6. Explanation pertaining to demeanor must be harshly scrutinized because they are so subjective and can be easily used by prosecutors as a pretext for excluding persons on the basis of a protected characteristic.
  7. The prosecutor never sought to clarify the distinction between the prospective juror’s age and his race, which raises doubt as to the plausibility of the prosecutor’s concern.
  8. The record does not support that the person struck from the panel had a significantly different demeanor from jurors that were not black. Also, the person struck life’s experiences were similar as to the life experiences of jurors that were not black who were not struck. Finally, the record demonstrated that many other jurors answered the questions similarly as to the juror struck.

 

 

IV

Thoughts/Takeaways

 

  1. Throughout the blog entry, I used the term “protected characteristic,” and not race. After Tennessee v. Lane, here, it is clear to me that persons with disabilities are in a sufficiently high equal protection class for purposes of Batson challenges. Tennessee v. Lane held that people with disabilities when it comes to equal protection, are at least in the intermediate scrutiny class if not higher when it comes to accessing the courts. Certainly, serving on juries is a critical component of accessing the courts.
  2. You might also be able to argue by analogy via Bostock, that persons of differing sexual orientation and gender identity would also have Batson challenges available, though Bostock is not an equal protection case.
  3. The way Batson challenges work is pretty similar everywhere. Batson has a civil equivalent, here.
  4. The big difference between Illinois and Colorado is that neutral reasons based upon demeanor get harshly scrutinized in Illinois, while in Colorado, such a reason gets the full benefit of the clear error rule.
  5. I am not a trial attorney. However, if I heard the explanation of the prosecutor in Colorado, my immediate response would be that the explanation was discriminating on the basis of a protected characteristic. That is, the explanation given describes classic behavior of someone with ADHD. I am not saying that prospective juror had ADHD, but that it was a possibility. I would make the argument that the prosecutor may be regarding the juror as having a disability (ADHD). In Illinois, a demeanor-based explanation gets searching review. Even in a searching review jurisdiction, I might throw in the regarding a person as having ADHD to help with the searching review process.
  6. The Colorado Supreme Court seems a bit torn with the decision when it goes out of its way to say that judges need to make explicit demeanor and credibility findings.
  7. While Batson challenges work the same everywhere, there may be critical differences in your particular state concerning how an appellate court reviews a Batson determination for clear error.
  8. I have not done a search for whether there is a similar difference of opinion with respect to clear error, such as what exists between Illinois and Colorado, in various federal courts, but there very well could be.
  9. The ADA prohibits regarding a person as having a physical or mental impairment. It also frowns upon myths, generalization, and stereotypes. An argument can be made that is exactly what goes on when it comes to using peremptory challenges. I can understand why Arizona got rid of peremptory challenges altogether. Keep in mind, I am not a trial attorney, so it is easy for me to say that it might make a great deal of sense to get rid of peremptory challenges.
  10. It is unclear whether Colorado’s substantial motivating factor test matches up with or is significantly different from the substantial factor test discussed in Bostock, here.
  11. Implausible or fantastic explanations are in the eyes of the beholder, which is another reason it makes sense for Illinois to be extremely skeptical of demeanor-based explanations.

I hope everyone had a good weekend. I just got back from the Federal Bar Association national convention in Kansas City, which was fabulous. I was part of a fantastic panel speaking on policing and persons with disabilities. In particular, we talked about a lot of different things. My part focused on why Graham v. Connor should no longer be used as the basis for training (we discussed that issue in this blog entry), and the police responsibility for getting the laws regarding service animals, particularly with respect to title III of the ADA, correct. The panel was fabulous and consisted of myself, Aisha Novasky of Disability Rights California, and two Brown Goldstein attorneys-Jamie Strawbridge and Michael Abrams.

 

Turning to the blog entry of the day, it is a case discussing the following (which will also serve as my blog categories): 1) whether temporary disabilities are covered by the ADA; 2) what does it mean to have a disability that is minor for purposes of the regarded as exception; 3) when is medical testimony required to establish a disability; and 4) miscellaneous matters. After describing the facts of the case, we will discuss each one of those topics below. Of course, at the end of the blog entry, we will have our thoughts/takeaways section. The case of the day is Morgan v. Allison Crane and Rigging, LLC, a published decision decided by the Third Circuit on September 4, 2024, here.

 

I

Facts

 

In the fall of 2019, Andrew Morgan was employed by Allison Crane and Rigging as a millwright laborer until he was terminated on November 18, 2020.

 

On September 29, 2020, while working at the Williamsport location, Morgan injured his lower back. Although he was in “severe pain,” Morgan completed his shift. He informed at least one co-worker, as well as Hastings (his supervisor), about his back injury. Hastings told Morgan that he would “relay the message” to Mundrick. Morgan continued working his regular shift through the remainder of the week but informed his crew that he was still in pain and considering chiropractic treatment.

 

Several days later, on October 1, 2020, Morgan saw a chiropractor. Morgan testified that the chiropractor diagnosed him with a bulged or herniated disc in the lower back and recommended that Morgan return twice weekly for treatment to alleviate the lower back pain. Morgan’s back became inflamed when he sat, walked, or turned left or right. Morgan complied with the treatment plan by making twice-weekly visits to his chiropractor, and the chiropractor further advised Morgan to switch to “light duty” work.

 

On October 7, 2020, Morgan had a meeting with several supervisors—including Bonislawski and Thomas Ungard. Morgan again informed them of his back injury at that meeting and he was told that he would be placed on light duty. He was also advised to not file a workers compensation claim on the grounds his injury was not sufficiently severe.

 

On October 8, and again on October 22, 2020, Morgan’s chiropractor wrote a note stating that Morgan should be excused from “bending or lifting” items over fifteen pounds through November 4, 2020. 8 Then, on November 5, 2020, the chiropractor further restricted Morgan from bending or lifting items over thirty pounds for another thirty days; a period which would have run through December 5. However, on November 25, 2020, Morgan’s chiropractor released Morgan “to his full occupational duties without restrictions.” In total, from October 8 until November 25, 2020, Morgan’s chiropractor placed him on bending and lifting restrictions for forty-eight days. Morgan shared the chiropractor’s notes with Bonislawski, and Morgan concedes that Allison Crane did indeed place him on light duty restrictions, until it terminated him.

 

According to Allison Crane, Morgan’s actions during one week in November led to his termination. On November 13, 2020, Bonislawski warned Morgan about not wearing the appropriate protective equipment while working. Several days later, Morgan was assigned to drive a truck to escort a crane from a job site in Syracuse, New York. Morgan texted the dispatcher that he could not perform the task because the timing conflicted with an important back appointment that he did not want to miss, but he was willing to do another job that did not conflict with the appointment.

 

Morgan testified that, later that day, he was again contacted by dispatch, and he told dispatch that he could not do the job because he could not “sit for that long of a time” without inflaming his back but that he could do “light duty” work. According to Morgan, the dispatcher said “they would be able to find somebody else.” Morgan claims that he went to work in the yard on November 17, 2020.

 

The next day, on November 18, 2020, Bonislawski fired Morgan, purportedly because Morgan failed to “follow the day off request process as well as other policies” when he did not “show for work” on November 17.12 Prior to Morgan’s termination, he continued to work full time, for the same wages, and did not miss any workdays.

 

II

 

Court’s Reasoning That Temporary Impairments Can Qualify As an Actual Disability under the ADA

 

  1. Prior to the enactment of the amendments to the ADA, the Supreme Court had held in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams that an impairment must prevent or severely restrict the individual when doing activities that are of central importance to most people’s daily lives and be permanent or long-term in order to qualify as a disability.
  2. In enacting the amendments to the ADA, Congress rejected the Supreme Court’s permanency standard. More specifically, Congress mandated that the definition of disability must be construed in favor of broad coverage of individuals and to the maximum extent permitted. In response to that admonition, the EEOC explained that even an impairment expected to last less than six months can constitute an actual disability if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population.
  3. Other Circuits since the amendments, have held in published opinions that temporary impairments can qualify as an actual disability under the ADA. The Third Circuit has reached the same conclusion in unpublished opinions. Even the defendant, now agrees that an impairment lasting fewer than six months can constitute a disability.
  4. The trial court’s reliance on a prior Third Circuit decision is misplaced because that decision applied the pre-amendment standard to what constitutes a disability. While that decision came down after the amendments, the actual case was filed before the amendments. So, the law before the amendments was the law in effect at the time the case the trial court relied on was decided.
  5. The analysis of Morgan’s general back pain under the ADA must focus on whether his injury substantially limited his ability to perform a major life activity as compared to most people in the general population. Morgan clearly established such a limitation with his allegations. In particular: 1) Morgan testified that it hurt to sit, to walk, and hurt to turn left or right; 2) from October 8 until November 5, 2020, Morgan’s chiropractor advised him against lifting anything over 15 pounds and from bending; and 3) from November 5 until November 25, Morgan was still advised not to bend and was further restricted from lifting more than 30 pounds.
  6. Given that lifting and bending are major life activities, a reasonable jury could find that Morgan’s back pain, even though it was temporary, constituted an actual disability because it substantially limited the ability to perform major life activities as compared to most people in the general population.
  7. The amendments to the ADA makes clear that the duration of an impairment is not dispositive of whether someone is disabled.
  8. All short-term impairments do not necessarily rise to the level of disability under the ADA because a plaintiff must still demonstrate that the short-term impairment substantially limits a major life activities.

 

III

Court’s Reasoning That Sufficient Allegations Exist to Show That Morgan’s Temporary Impairment Was Not Minor and Therefore Is Not Precluded by the Regarded As Exception

 

  1. An impairment lasting fewer than six months is transitory. However, for the transitory and minor exception to apply, the impairment must be BOTH transitory and minor.
  2. Minor is not defined by statute, but coverage under the regarded as prongs should not be difficult to establish.
  3. The determination of whether an impairment is minor must be made on a case-by-case basis, and the factors to be considered depend on the particular impairment.
  4. The requirement for a prima facie regarded as claim are less demanding than those for an actual disability claim.
  5. The only issue the trial court had to determine was whether his back pain was also minor.
  6. It would be paradoxical to conclude that Morgan’s back pain that limited the major life activities of bending, lifting, walking, and sitting was minor given that the substantially limits requirement is a higher burden to meet.
  7. The minor requirement of the regarded as exception is only intended to include impairments at the lowest end of the spectrum of severity, such as common ailments like the cold or flu. Back pain that causes difficulty and bending, lifting, walking, and turning left or right, is undoubtedly more than minor pain.

 

IV

Court’s Reasoning as to When Medical Testimony Is Required in Order to Establish a Disability

 

  1. Medical testimony is not always required to establish a disability.
  2. The necessity of medical testimony is decided on a case-by-case basis, and it turns on the extent to which the alleged impairment is within the comprehension of a jury that does not possess a command of medical or otherwise scientific knowledge.
  3. Generally, ailments that are the least technical nature and are the most amenable to comprehension by a lay jury need not be established by medical evidence.
  4. Arm and neck pain are among those ailments not requiring medical evidence. However, a herniated disc is a spinal injury not within the comprehension of a jury that does not possess a command of medical or otherwise scientific knowledge. Accordingly, Morgan’s claim that he was unlawfully discriminated against because of an actual herniated or bulged disc disability is dismissed.

 

V

Miscellaneous Matters

 

  1. The Third Circuit also said that the trial court erred in dismissing Morgan’s retaliation and failure to accommodate claims. In particular, the defendant did not even move for dismissal of the retaliation claims and the trial court did not report to dismiss the retaliation claims on its own motion. Accordingly, the order dismissing the retaliation and failure to accommodate claims must be vacated and remanded to be addressed by the trial court. On remand, the trial court needs to consider whether the defendant failed to preserve its arguments against the retaliation claim.
  2. The court also said that the defendant may have run itself into trouble when it tried to discouraged Morgan from filing a workers compensation claim and he in fact refrained from doing so.

 

VI

 

Thoughts/Takeaways

 

  1. Temporary impairments can be a disability under the ADA after the amendments (since 2009).
  2. Toyota Motor, here, is no longer good law.
  3. Sutton v. United Airlines, here, is still good law with respect to any allegation that the major life activity of working was substantially limited. After the amendments, there should be almost no reason why a plaintiff would allege working as the major life activity. In fact, I have argued I have argued in the past that it would be legal malpractice for a plaintiff to do so except in the most unusual of cases.
  4. Disabilities lasting less than six months can constitute an actual disability if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population. That is, the duration of an impairment is not controlling when determining whether a person is disabled under the ADA.
  5. Establishing a substantial limitation on a major life activity should not be difficult in most cases. It becomes even less difficult if the argument is that the defendant regarded the plaintiff as having a physical or mental impairment (regarded as claim).
  6. For the regarded as exception to apply, the disability must be BOTH transitory and minor.
  7. Whether a disability is minor turns upon whether there was a substantial limitation in a major life activity compared to most people in the general population.
  8. Medical testimony may or may not be required to establish a disability. However, the standard set by the court is ambiguous. Therefore, as a matter of preventive law, a plaintiff will want to have at the ready a person to discuss why the physical or mental impairment is a disability.
  9. Courts need to be clear when dismissing claims to why they are doing it. For example, are they dismissing claims on their own motion or upon a request from the party.
  10. Dissuading a person from filing a claim is never a good idea. See this blog entry.
  11. This case illustrates that the minor exception of transitory and minor in regarded as cases leads back to the actual disability prong. That is, you look to whether a substantial limitation on a major life activity exists. Such an analysis lead to a rather quirky situation where for regarded as claim, you don’t need a substantial limitation on a major life activity. However, if defendant argues the transitory and minor exception, then a substantial limitation must be shown, though the burden for showing a substantial limitation (not clear at all who has that burden), is not nearly as high as it is for an actual disability claim.

I hope everyone had a great holiday weekend.

 

This week’s blog entry is a case out of the Second Appellate District of the Court of Appeal of the State of California. It is a case involving whether attorney fees can be imposed upon plaintiff’s counsel as a sanction when the lawsuit is frivolous. The case is Morgan v. Zarco Hotels Inc. decided on August 21, 2024 and can be found here. As usual, blog entry is divided into categories and they are: facts; court’s reasoning the award of attorney fees against plaintiff’s counsel as a sanction must be thrown out; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

The facts are really straightforward. A plaintiff and the law firm she used, Center for Disability Access, filed a failure of a website to be accessible to a person with a disability lawsuit. While the plaintiff asserted no cause of action under the ADA, the complaint did seek a permanent injunction ordering compliance with the ADA and that defendant’s actions violated the ADA. Early in the litigation, defendant’s counsel contacted plaintiff’s counsel and explained that the hotel’s website was fully accessible and ADA compliant. He also said that the complaint lacked merit and the lawsuit should be dismissed. The defendant then filed a motion for summary judgment supported by a declaration from an expert who conducted an accessibility audit of the hotel website attesting to its accessibility by persons using screen reading technology. Plaintiff did not oppose the summary judgment motion and the action was dismissed. The defendant then filed a motion for attorney fees against the plaintiff and the plaintiff’s attorneys under §12205 of the ADA and California Rules of Court. The trial court found that the plaintiff’s action was meritless, frivolous, unreasonable, and without foundation, based on defendant’s evidence and plaintiff’s failure to present any evidence supporting the merits of the case. The trial court denied the motion as to plaintiff finding no evidence that the plaintiff did anything improper. The trial court granted the motion against plaintiff’s counsel because the court believed that the parties communication should have put plaintiff’s counsel on notice of the problems with the case. Accordingly, the trial court ordered plaintiff’s counsel to pay $55,414.84 in attorney fees. Plaintiff and plaintiff’s counsel appealed.

 

II

Court’s Reasoning That the Award of Attorney Fees Against Plaintiff’s Counsel as a Sanction Must Be Thrown out

 

  1. Under the ADA, a prevailing defendant can only recover attorney fees if the ADA claim was frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate it after it clearly became as such.
  2. The ADA clearly applies to the case as the complaint referenced it in various ways.
  3. Fee awards against attorneys are ordinarily available only as sanctions and are generally not allowed under routine fee shifting provisions.
  4. Trial courts cannot award attorney fees as a sanction for misconduct in the absence of statutory authority or agreement of the parties.
  5. §12205 of the ADA, here, does not expressly authorize an award of attorney fees as sanctions against a party’s counsel. The silence of the statute as to whether attorney fees may be assessed against a party’s counsel does not authorize a court to do so.
  6. Defendant cited no authority where attorney fees under the ADA were assessed against a party’s counsel and the court found no such authority. Accordingly, case law supports the presumption that fee shifting statutes apply only to parties unless the statute expressly states otherwise.
  7. The Supreme Court has declined to make lawyers responsible for fees under other fee shifting statutes, and Federal and California appellate courts have applied that principle to other similar fee shifting statutes.
  8. Cases interpreting fee shifting statutes with similar language to §12205 uniformly disallow attorney fees award against a party’s counsel. There is no reason to interpret the ADA fee shifting statutes differently. The similar language of other fee shifting statutes is a strong indication that they are to be interpreted in the same way.
  9. §12205 of the ADA does not authorize assessment of attorney fees against a party’s attorney.

 

III

Thoughts/Takeaways

 

  1. In most situations, a plaintiff involved in serial lawsuits is likely to be judgment proof. So, that may explain why the defense went after plaintiff’s counsel as well as the plaintiff.
  2. Attorney fees cannot be awarded as a sanction against a plaintiff’s attorney in an ADA matter.
  3. Since most serial plaintiffs are likely to be judgment proof, one wonders how a defendant could collect any attorney fees award in the event of a frivolous lawsuit.
  4. Oftentimes, defendants will just settle a serial web site lawsuit instead of litigating it. This is a situation where the defendant refused to do that.
  5. This is a California case interpreting the ADA. Accordingly, one wonders whether federal courts will interpret the ADA in the same manner. It will be interesting to follow how this particular issue plays out in the federal courts.
  6. The trial court did not award attorney fees against the plaintiff because the plaintiff did nothing wrong. Interesting phrasing. It also makes you wonder whether to recover attorney fees against a plaintiff, the defendant would have to prove some form of wrongdoing involving the plaintiff beyond hiring counsel to prosecute the claim.