My thoughts go out to everyone in the Houston area and in Texas dealing with the aftermath of hurricane Beryl.

 

The blog entry of the day is about a case that came to me from Anne Cullen, a reporter with law 360. She wrote an excellent article on it, here (subscription required). The case is Huber v. Westar Foods, Inc., No. 23-1087 (8th Cir. July 1, 2024), here. It deals with several issues worth exploring, including: the honest belief rule; whether failure to accommodate claims require an adverse action; whether FMLA interference is the same as ADA interference in terms of the way we have discussed ADA interference in the blog; and whether FMLA retaliation and ADA retaliation are the same.

 

As usual, the blog entry is divided into categories and they are: facts; majority opinion that the honest belief rule is not unlimited; if failure to accommodate cases require an adverse action, it isn’t much of one; FMLA interference and ADA interference are the same but not as we have come to think of interference in the blog; FMLA retaliation and ADA retaliation are the same; the concurring and dissenting opinion; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

Westar foods operates a number of Hardee’s restaurants in the Midwest, employing more than 200 people. Soon after Huber started working at Westar, she was diagnosed with diabetes. In March 2019, Huber had to start taking insulin, including at work. Over the course of her employment, Huber’s insulin dosage increased. To manage her diabetes, Huber needed a room temperature location where she could store her insulin. The restaurant’s kitchen and office ran upwards of ninety degrees, and Huber struggled to find a room temperature place for insulin storage. As such, she asked her district manager at the time, Matt Thayer, for help finding suitable storage, but he responded, “That’s a [you] problem, not a [me] problem.” After Cindy Kelchen became Huber’s district manager in September 2019, Huber renewed her request for help finding a room temperature location for her insulin, and Kelchen advised storing it in the freezer. When Huber pointed out that the freezer was not room temperature, Kelchen responded, “Then I don’t know what to tell you.”

In addition to insulin storage, Huber also needed to find time during her shift to eat a meal so she could take her insulin. Huber was often too busy to take meal breaks during her shifts, so she sought help from Kelchen. Kelchen responded by telling Huber to get better at time management.

In December 2019, Huber began to feel sick because of her diabetes. When Huber woke up for her shift on the morning of December 20, her blood glucose level was low, and she was experiencing symptoms consistent with hypoglycemia.[1] Indeed, because of her blood glucose level, Huber “felt out of it” and did not know who or where she was. Huber realized she needed to go to work but then forgot and became confused as to what was happening or where she was supposed to be. Eventually, Huber was able to drive herself to a nearby doctor’s office where she was given an IV and medications that sedated her.

Throughout the day of her stay at the Dr.’s office, Huber called her son and her boyfriend on multiple occasions. Both reported that she was groggy and incoherent and that her communication was all over the place and difficult to comprehend.

On the day of the diabetic episode, Westar discovered that the plaintiff had not come in to work when a customer notified the district manager that the store was not open. The district manager tried calling the plaintiff who did not answer, so the district manager called plaintiff’s son, who is listed as her emergency contact. The son told the district manager that the plaintiff was at the Dr.’s office and that her levels were off and that the plaintiff would call back. The plaintiff did not end up calling the district manager on that day. To get a ride home, her boyfriend had to use an app to locate where the plaintiff was as she was unable to convey to her boyfriend the directions. When she arrived at her home, she was delirious, disoriented, and ill, so the boyfriend decided to stay overnight out of concern for her safety.

Westar’s attendance policy has a “call-in” requirement, which states that if a store manager is going to be late for work or if they are unable to work, they must call their district manager immediately and at least two hours prior to the start of their shift “when possible.” Additionally, the attendance policy states that “[t]exting, emailing or leaving a message is not” an acceptable way to notify management of an absence or tardiness. Huber was aware of the call-in policy, so immediately upon awaking, she called Kelchen and emailed her a doctor’s note excusing her from work through December 26. On the call, Huber conveyed her experience and the nature of the diabetic episode to Kelchen. Kelchen took notes of the conversation and wrote that Huber was at the doctor’s office because “her levels of her diabetic [sic] was off.” During the call, Kelchen was yelling at Huber; indeed, her voice was so loud that it woke Grondin, who was asleep in an adjacent room. When Kelchen asked Huber why she did not notify her in accordance with the call-in policy on either December 20 or 21, Huber explained how the diabetic episode made it extremely difficult to call, mentioning to Kelchen that she could do an internet search to understand the symptoms better. Kelchen did not understand or believe that Huber could not have called, especially when she was able to call her boyfriend and son and drive herself to the doctor’s office. During the conversation, Kelchen asked Huber five times why she did not make a “simple phone call” to inform Westar about her absence.

Immediately following her call with Huber, Kelchen called Frank Westermajer, Westar’s owner and president, to convey her conversation with Huber. It is undisputed that during the call, the decision was made to fire Huber when she returned from sick leave on December 26. The parties disagree as to whether Westermajer was the sole decision-maker, or whether Kelchen was also a decision-maker.

From there, things went from bad to worse. Plaintiff requested FMLA paperwork but never received any. At a follow-up Dr.’s appointment, the doctor wrote another note saying she should be out of work through January 2 due to her diabetes. Once again, plaintiff requested paperwork but never received anything or even a response. Instead, the HR manager requested a meeting that afternoon despite her awareness of plaintiff’s medical leave. The HR manager planned to fire the plaintiff at the meeting. Plaintiff declined the meeting because she was not stable, provided a new Dr.’s note, and once again asked for FMLA paperwork. Since plaintiff’s sick leave was extended, the meeting did not occur, and the HR manager sent plaintiff a termination letter. The termination letter, in addition to terminating her, also said that they would decline FMLA leave.

Plaintiff sued alleging that Westar interfered with her rights under FMLA, retaliated against her in violation of the FMLA, and also violated the ADA by discriminating against her on the basis of her disability. The District Court granted summary judgment and plaintiff appealed.

II

Majority Opinion That the Honest Belief Rule Is Not Unlimited

 

  1. Where an employer seeks to assert a good faith argument (the honest belief rule), the underlying reason for firing must be sufficiently independent from the protected status or activity. If the reason for an employer’s adverse employment action is so inextricably related to the disability, those reasons cannot be considered independently of one another. Finally, where a disability caused missed work and the missed work caused the termination, it is not much of a stretch to conclude that the disability caused the termination.
  2. In a footnote, the court noted that: 1) accommodation and termination claims are two sides of the same coin where the disability may have caused the conduct and the conduct caused the termination; 2) for purposes of the ADA, conduct resulting from a disability is considered to be part of the disability, rather than a separate basis for termination; 3) the link between the disability and termination is particularly strong where it is the employer’s failure to reasonably accommodate a known disability that leads to the discharge for performance inadequacies resulting from that disability; 4) employers have a duty under the ADA to reasonably accommodate an employee’s known disability; and 5) an employer may violate the ADA where fails to make a good-faith effort to assist the employee in seeking accommodations and the employee could have been reasonably accommodated but for the employer’s lack of good faith.
  3. A reasonable jury could conclude that plaintiff’s diabetic episode was not independent from her firing. Although Westar argued that its termination was underscored by plaintiff’s failure to follow the call-in policy on two prior occasions, that worked against Westar because they did not terminate her on those occasions, neither of which were related to her disability.
  4. Whether an employee’s disability caused the conduct that violated company policy and whether the employer acted in good faith are both questions of fact.
  5. Plenty of evidence exists to show that Westar’s arguments that pretext was not involved in the termination do not hold up. For example, plaintiff was yelled at when she tried to explain what was going on. There was also a close proximity between the notification of what was going on and the termination decision.

 

III

If Failure To Accommodate Cases Require An Adverse Action, It Isn’t Much Of One

 

  1. Failing to provide an employee with reasonable accommodations can tend to prove that the employer also acted adversely against the employee because of the individual’s disability.
  2. Plaintiff presented evidence that the district managers (there were two different ones during the time of these occurrences), were ambivalent toward plaintiff’s insulin storage and meal break requests. She also provided evidence of the district manager and the HR manager share contempt toward accommodating her sick leave after the diabetic episode. The district manager not only yelled at plaintiff over the phone on December 21, she also equivocated on whether she expected plaintiff to find others for her shifts despite her sick leave. The district manager’s expectation that plaintiff work while sick is backed up by other evidence as well. Finally, the HR manager and the district manager requested a meeting with the plaintiff even though they were aware of plaintiff’s Dr.’s note using her from work through December 26.
  3. Westar’s own records indicate that they knew about plaintiff’s diabetes well before they terminated her employment. The fact that Westar was aware of plaintiff’s disability yet continues to deny awareness of her disability is strong evidence of pretext.

 

IV

FMLA Interference and ADA Interference Are The Same But Not As We Have Come To Think Of Interference In The Blog

 

  1. An employer’s action that deters an employee from participating in protected activity constitutes an interference or restraint of the employee’s exercise of his rights.
  2. Interference includes manipulation by a covered employer to avoid responsibilities under FMLA.
  3. To establish an FMLA interference claim, an employee must show: 1) they were eligible for FMLA leave; 2) the employer was on notice of the need for FMLA leave; and 3) the employer denied the employee an FMLA benefit.
  4. Magic words are not required to seek FMLA leave.
  5. An employer’s duties are triggered when the employee provides enough information to put the employer on notice that the employee may be in need of FMLA leave.
  6. For an employer to be on notice of the need for FMLA leave, they have to be aware of a “serious health condition.”
  7. An employee has to notify the employer of their request for FMLA leave as soon as practicable.
  8. Whether an employer is on notice prior to its termination decision of a request for FMLA leave, is a question of fact for the jury.
  9. An FMLA interference claim merely requires proof that the employer denied the employee’s entitlement under the FMLA.

 

V

FMLA retaliation and ADA retaliation are the same

 

  1. FMLA retaliations claims require proof of retaliatory intent.
  2. To prove a FMLA retaliation claim, a plaintiff have to show: 1) they engaged in protected conduct; 2) they suffered a materially adverse employment action; and 3) the materially adverse action was causally linked to the protected conduct.
  3. A materially adverse action is one that deters a reasonable employee from making a charge of employment discrimination. Termination from employment is one such adverse action.

 

VI

Concurring and Dissenting Opinion by Judge Stras

 

  1. Judge Stras concurs with the majority except for how the majority opinion narrows the honest belief rule. In particular, the narrowing of the honest belief rule will require an employer to show that the asserted justification is sufficiently independent of the employee’s disability even where an employee has repeatedly violated the workplace rule or engaged in misconduct.
  2. Nothing in the majority opinion should be construed that employers can not discipline employees for misconduct.
  3. Narrowing the honest belief rule contradicts ADA causation principles per McDonnell Douglas, which requires the disability to be a motivating factor.
  4. Termination must be based on disability and not just independent of it with respect to the ADA.
  5. Misconduct related to a disability is not itself a disability and may be grounds for dismissal. That is, workplace misconduct is a legitimate and nondiscriminatory reason for terminating employment even when the conduct is related to a disability.
  6. An employer who fires a worker because of a disability violates the ADA, but if the employer fires the worker because the worker is unable to do the job, then there is no violation of the ADA.

 

VII

Thoughts/Takeaways

 

  1. The majority opinion goes cutting edge here by narrowing the focus of the honest belief rule where the conduct is caused by a disability. That is not to say that misconduct cannot be the basis for terminating an employee. Rather, it says that the honest belief rule won’t fly if the conduct is disability related. That doesn’t necessarily mean that the defendant loses when the honest belief rule does not apply.
  2. Whether the employee’s disability caused the conduct of violated company policy and whether the employer acted in good faith as a result, are questions of fact.
  3. A failure to accommodate is quite probably, if not always, an adverse action. The Supreme Court decision in Muldrow (see also §VII(5) of this blog entry), certainly seems to suggest as much.
  4. The court says that FMLA interference and ADA interference are the same. Keep in mind, that we have talked about cases, such as here, stating that ADA interference borrows from the Fair Housing Act and not from the FMLA. So, interference under the ADA may be different than interference under the FMLA. It will be interesting to see how the U.S. Courts of Appeals deal with the question of whether interference gets taken from the FMLA or whether it gets taken from the Fair Housing Act.
  5. Retaliation cases typically use the phrase materially adverse action. You have to wonder about that phrase in light of the Supreme Court opinion in Muldrow, which we discussed here. Nevertheless, in retaliation cases, the phrase has its own meaning as being something that deters a reasonable employee from making a charge of employment discrimination.
  6. Judge Stras’s concurring and dissenting opinion makes the argument that the narrowing of the honest belief rule by the majority may not hold up upon closer analysis. So, this sets up a situation where plaintiffs faced with the honest belief rule will be citing the majority opinion and defendants will be citing the concurring and dissenting opinion. It will be very interesting to see how the Eighth Circuit’s narrowing of the honest belief rule when disability related conduct is involved will play out around the country.
  7. Failure to engage in the interactive process violates the ADA.
  8. If an employer clearly knows of a disability but in litigation claims that it didn’t, that dichotomy strongly suggests pretext. In short, positions taken in litigation when compared to the actual facts, matter.
  9. Both the FMLA and the ADA takes similar approaches to magic words not being required.
  10. “Serious health condition,” is a term of art with respect to the FMLA.
  11. The decision does not seem to be published.
  12. One wonders whether a rehearing en banc will be sought with respect to the majority’s narrowing of the honest belief rule. One also have to think that if this particular issue is appealed to the Supreme Court, a majority of the court would be very receptive to Judge Stras arguments made in his concurring and dissenting opinion.

As I mentioned at the beginning of the week, it was pretty clear that another blog entry was warranted before Monday in light of the Supreme Court ending its term and my travel schedule. So here goes. There are three cases to discuss that are relevant to the ADA universe. They are: Loper Bright Enterprises v. Raimondo; Security and Exchange Commission v. Jarkesy; and City of Grants Pass, Oregon v. Johnson. All three cases have implications for the ADA universe. As usual, the blog entry is divided into categories and they are: Loper Bright; Grants Pass, and Jarkesy. My thoughts/takeaways will appear in each section rather than at the end of the blog entry.

 

I

Loper Bright

 

When this case was argued, it looks like, as we discussed here, what would happen would be that Chevron would become very much like Kisor. It didn’t work out that way. In a 6-3 decision along ideological lines, the majority got rid of Chevron entirely and replaced it with Skidmore deference, which means final regulations are just persuasive authority. How persuasive is up to the court considering the context of the case.

 

There are several thought takeaways regarding this:

 

  1. This seems to create a bit of a strange situation where agency interpretation of their own regulations per Kisor, which we discussed here, potentially gets a higher level of judicial deference than final regulations. That is a bit of a strange result considering once a rule goes through the Administrative Procedure Act processes, the rule is considered to have the force of law.
  2. Under some circumstances a regulation can become its own cause of action. How that happens is a bit complicated. The result of this case makes you wonder whether a regulation could ever become its own cause of action since every regulation is now just persuasive authority to varying degrees (but see below discussion about how legislative intent is going to matter more than ever).
  3. Businesses, at least according to the Atlanta Journal-Constitution this morning, were hailing this ruling, but I am not sure that kind of thinking is best for business. If Chevron did anything, it brought certainty to legal advising. This decision puts just about everything up in the air. Businesses like certainty and this decision creates a lot of uncertainty.
  4. Final regulations can only be thrown out if they are arbitrary and capricious. Does this case mean that courts essentially will have to start operating similar to the Illinois Joint Commission on Administrative Rules, which has as one of its critical roles determining whether a rule goes beyond legislative intent. It would seem to me that whether a final regulation becomes incredibly persuasive to a court after this decision will vary depending upon how close to legislative intent the regulation actually is. Since everyone is a textualist now, that analysis would have to start with the plain meaning of the statute.
  5. It isn’t surprising that this particular court threw out Chevron. Several of the justices, including but not limited to those appointed by Pres. Trump, had expressed severe misgivings with the doctrine in the past. Justice Scalia who actually authored Chevron became a fierce advocate against it. A few months back, I actually read an opinion piece by his son talking about how some agencies would take advantage of that doctrine to give themselves extreme flexibility when it came to issuing final regulations. He claimed that he never did that while heading a federal agency but knew of discussions that talked about the extreme flexibility agencies had with coming up with the regulations in light of Chevron.
  6. Look for administrative law to be a growth industry for lawyers going forward. You can expect a lot more regulatory challenges to final regulations and, as noted above, those regulatory challenges may be easier. On the other hand, if legislative intent becomes the marker, you may see a lot more litigation over whether certain regulations create their own cause of action. It is entirely possible after this case, that more regulations than ever will create their own causes of action. Finally, as a practical matter, arbitrary and capricious may no longer be the standard for whether a final regulation survives.

 

II

Grants Pass

 

In this case, the Supreme Court allowed cities to come up with ordinances, including making camping outside a misdemeanor among other things, in order to combat the homelessness crisis. The majority said that the cruel and unusual punishment clause is about punishment and not the criminal statute in the first place. So, the cruel and unusual punishment clause was not activated. Even if it was activated, the approaches of the various cities to deal with homelessness did not rise to the level of cruel and unusual punishment.

 

Thought takeaways on this case include:

 

  1. Cities now have far more tools to deal with the homeless crisis. Hopefully, the tools used and the approaches will be respectful of the homeless community. All of that remains to be seen. Clearly, cities and communities were very frustrated by previously being limited, especially in the Ninth Circuit, as to what they could do to deal with homelessness.
  2. The ADA still applies, so when developing further tools, cities will want to keep in mind Title II of the ADA.

 

III

Jarksey

 

In this case, the Supreme Court said that whenever a civil penalty is contained in a statute and the appropriate agency seeks a civil penalty, that case must be heard in an Article III court. Further, a party to such a case has a right to a jury trial under the seventh amendment because a civil penalty is in the nature of a common law suit. The case turned upon whether a “public right,” was involved. The majority said it wasn’t while the dissent said it was. I am not a scholar in the constitutional doctrine of “public rights,” so I can’t offer an opinion on whether the majority or the dissent got it right.

 

Thought takeaways on this case include:

 

  1. Title III of the ADA, 42 U.S.C. §12188(b)(2) allows the DOJ to seek civil penalties for violations of Title III. Under the ADA system, such cases would be heard in Article III courts anyway. However, now there is a right to a jury trial. Recall, Title III only allows for injunctive relief and attorney fees. DOJ can seek civil penalties and advocate for damages for a party. So, you might see defendants request a jury trial now when DOJ takes on a case against them that includes a civil penalty. Certainly, the right to a jury trial changes the calculus of the litigation.
  2. A question remains as to how this affects the securities industry more widely, if at all, such as in the area of broker-dealer regulation (while I do arbitrate on FINRA matters from time to time, I am not by any means a securities law practitioner).

 

A final note, while it has nothing to do with the ADA, the Supreme Court did say you can expect the Trump immunity decision on Monday.

 

Have a great week everybody and stay cool.

This may very well be a week with two blog entries for three reasons. First, there is the blog that will be the subject of this blog entry. Second, if I have this figured right, this is the last week that the Supreme Court has for issuing opinions before their summer recess. I am particularly waiting on the Loper Bright case, which we discussed here. Third, the week of July 1, I will be out of town all week.

 

Turning to the blog entry for this week, it is a case out of the Supreme Court of New Jersey that offers a roadmap for dealing with ESA’s in terms of how the process works with respect to the burden of proof and the like. It also illustrates just how fine the line is between ESA and a psychiatric service animal. The case of the day is Players Place II Condominium Association Inc. v. K.P. and B.F., here. It was decided by the Supreme Court of New Jersey on March 13, 2024. By way of full disclosure, I have represented individuals on very similar fact patterns. As usual, the blog entry is divided into categories, and they are: facts; LAD/FHA overview; proper framework for addressing ESA’s; applicability of the proper framework up to the facts of this case; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

Players Place II is a condominium community Gloucester Township, New Jersey. Defendant bought a unit there in May 2018. Pets are allowed but they must weigh less than 30 pounds at maturity. The policy exempts dogs used for the blind from the weight restriction but does not mention emotional support animals. In August 2018, defendant’s girlfriend and now spouse, moved into the unit. She has several different mental health conditions.

 

On August 2, 2018 the defendants notified the HOA that they were considering adopting an emotional support dog that would likely be over the 30 pound pet limit and asked what medical documentation would be needed. On August 5, 2018, a dog was adopted from a shelter to live with them as an ESA. At maturity, the dog would weigh more than 30 pounds. In fact, she weighs 63 pounds in January 2019. The HOA pushed back hard, which led to the owners of the unit saying that the dog was an emotional support dog and furnishing documentation from a psychiatric nurse practitioner saying that the now wife suffers from mood and anxiety disorder and would benefit from an ESA.

 

In response, HOA counsel said that they would immediately commence an action at law seeking a court order barring any dog weighing more than 30 pounds. In response to the HOA, the owners of the unit said that they would file a complaint with HUD if the HOA denied the claim.

 

In late September early October 2018, the HOA’s Board President saw the owners walking the dog on the condominium grounds. At no point did anyone file a noise complaint or claim that the dog caused any property damage. On October 3, 2018, the HOA filed a complaint against the owners. In response, the owners of the unit claimed that the HOA had violated the New Jersey Law Against Discrimination (LAD) and the Fair Housing Act (FHA).

 

B.F., the wife of K.P., has bipolar II disorder. She also has panic disorder, PTSD, depressive episodes, as well as ADHD. At trial, the licensed clinical social worker testified that the dog was making a big positive difference for B.F. For example, B.F.’s depressive episodes were shorter and more mild to moderate than before. She also improved her ability to cope with stressors.

Also at trial, a licensed clinical psychologist testified that B.F. had a long history of mental illness dating back to the seventh grade. She had experienced severe anxiety and depression at a young age and was placed on medication then. Her medications presently included two mood stabilizers, an antidepressant, an antipsychotic, and Adderall for the ADHD. She also testified that before getting the dog that B.F. could not be alone in the condo. With the dog, she is now comfortable staying alone in the condo as long as she had the dog with her. When she is panicking or decompressing, the dog will sit in the closet with her for hours and lick her face when she cries. In the opinion of the licensed clinical psychologist, the dog keeps B.F. stable.

 

B.F. at trial explained that she had struggled with mental health issues in middle school and identified her diagnosis, medication, treatment providers, and ongoing symptoms. She also noted that she had raised the idea of an emotional support animal with her therapist. She had a larger dog while growing up that she always found comforting. Smaller dog did not provide her with the same level of relaxation because they were loud and yappy and gave her more anxiety. Instead, she bonded with her adopted larger dog right away. B.F. explained that the dog lies with her in the closet when she is going through an episode and licks away her tears. She also added that her symptoms have dramatically decreased in length and frequency since she has had the dog.

 

II

LAD/FHA Overview

 

  1. The New Jersey Law Against Discrimination define disability as a: “physical or sensory disability, infirmity, malformation, or disfigurement which is caused by bodily injury, birth defect, or illness including epilepsy and other seizure disorders, and which shall include . . . any mental, psychological, or developmental disability, including autism spectrum disorders, resulting from anatomical, psychological, physiological, or neurological conditions which [1] prevents the typical exercise of any bodily or mental functions or [2] is demonstrable, medically or psychologically, by accepted clinical or laboratory diagnostic techniques. [N.J.S.A. 10:5-5(q)]
  2. Case law has considered various mental illnesses and psychological disorders as disabilities under the LAD (New Jersey Law against Discrimination), such as: ADHD; depression; other psychiatric disorders; posttraumatic stress disorder; anxiety; and panic attacks.
  3. When a disability is not readily apparent, i.e. non-observable, the LAD requires expert medical evidence.
  4. Regulations implementing the LAD make it, “unlawful for any person to . . . [r]efuse to make reasonable accommodations in rules, policies, practices or services, or reasonable structural modifications, when such accommodations or modifications may be necessary to afford a person with a disability equal opportunity to use and enjoy a dwelling, including public and common areas.” This regulation applies to condominium associations.
  5. Under the FHA, it is unlawful to discriminate in the sale or rental, or otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap. 42 U.S.C. §3604(f)(1). Discriminatory housing practices include a refusal to make reasonable accommodations and roles, policies, practices, or services, when such accommodations are necessary to afford a person with a disability equal opportunity to use and enjoy a dwelling.
  6. The LAD is an equivalent agency to HUD. Accordingly, the LAD has to be construed in a way that permits the LAD to qualify as a certified agency. So, the LAD must provide rights, procedures, and remedies substantially equivalent to those provided in the FHA.
  7. Critically, the LAD defines disability more broadly than the FHA because unlike the FHA, the LAD does not include any requirement that a disability result in substantial limitation of a major life activity. See ¶ 1 of this section.

 

III

Proper Framework for Addressing ESA’s

 

  1. The disabled tenant has the initial burden to show the requested accommodation is necessary to afford him or her or them an equal opportunity to use and enjoy a dwelling.
  2. The burden of proof then shifts to the housing provider to show that the requested accommodation is or was unreasonable.
  3. Whether the pet is of sufficient assistance to a tenant and whether the accommodation is unreasonable involve fact sensitive inquiries. The costs to the provider and the benefits to the tenant both merit consideration. The requested accommodation must enhance a disable plaintiff’s quality of life by ameliorating the effects of the disability. However, courts may also consider the likely costs or administrative burden to be incurred by the housing provider to accommodate an ESA.
  4. Federal courts have similarly found that a reasonable accommodation includes the use of an ESA, despite the existence of an HOA rule prohibiting such an animal (the court cites to a case we discussed in our blog here).
  5. Both the agency implementing the LAD and HUD have published guidance about ESA’s. The Division implementing the LAD has advised the public that a housing provider may need to make an exception to a no pet policy to permit a tenant with a disability to keep an ESA.
  6. If a disability and disability-related need for an ESA are not obvious or otherwise known, a housing provider may request reliable documentation from the person’s treating healthcare professional. The housing provider, in turn, must conduct an individualized assessment of the request and may deny it if allowing an ESA would create an undue burden on its operations.
  7. The HUD guidance (which we discussed here), extends beyond service animal to animals providing therapeutic emotional support for individuals with disabilities that alleviate at least one identified symptom or effect of a physical or mental impairment. Neither ESA’s nor service animals are subject to pet policy rules.
  8. Housing providers may not limit the breed or size of a dog used as a service animal or support animal just because of the size or breed. However, they can refuse a request if the specific animal poses a direct threat to the health or safety of others that cannot be eliminated or reduced to an acceptable level.
  9. According to HUD, residents can request a reasonable accommodation either before or after requiring an assistance animal. If the request lacks information about a person’s disability or the need for an animal, HUD encourages housing providers to engage in good faith dialogue with the requestor, i.e. the interactive process. If a request is denied because it would impose a fundamental alteration to the nature of the provider’s operations or an undue financial and administrative burden, the housing provider should engage in the interactive process to discuss alternative ways to accommodate a person’s disability related needs.
  10. The Division implementing the LAD echoes HUD’s guidance in its brief it filed.
  11. In short, in a case like this: 1) a resident of a condominium complex is entitled under state and federal law to request an accommodation to a pet policy in order to keep an emotional support animal; 2) The individual must first demonstrate they have a disability under the LAD; 3) In addition, they must show that the requested accommodation may be necessary to afford them an “equal opportunity to use and enjoy a dwelling.” N.J.A.C. 13:13-3.4(f)(2); 4) The housing provider then has the burden to prove the requested accommodation is unreasonable; 5) As part of that process, the parties should engage in a good-faith, interactive dialogue to exchange information, consider alternative options, and attempt to resolve or narrow any issues; and 6) If that collaborative effort fails and litigation follows, courts will inevitably need to balance the need for, and benefits of, the requested accommodation against the costs and administrative burdens it presents to determine whether the accommodation is reasonable.
  12. In a footnote, the New Jersey Supreme Court notes that service animals have a completely different analysis and are not subject to a balancing test.

 

IV

Applicability of the Proper Framework (§II of This Blog Entry). to the Facts of this Case

 

  1. B.F. has a disability as experts on both sides diagnosed her with psychological disabilities.
  2. The proofs about the medical condition were developed at trial. However, the HOA could have asked for more information in response to the initial request for an accommodation. Under HUD guidance, housing providers can ask individuals to provide information confirming they have a disability and that they need a support animal. A housing provider cannot ask for medical records or medical examination.
  3. A resident has the initial burden to demonstrate the accommodation they seek is necessary in order to afford an equal opportunity to use and enjoy a dwelling. This requirement asked whether the requested accommodation ameliorates the disability’s effects. In essence, the critical question is whether the accommodation alleviates at least one symptom of the disability and not whether the accommodation will cure or eliminate the disability. Here, there was plenty of evidence showing that the dog alleviates at least one symptom of her disability.
  4. LAD does not require that a mental health professional recommend or prescribe an emotional support animal. It also does not require that the resident establish a specific need for a dog exceeding the HOA’s weight limit.
  5. When possible, it is preferable to engage in a collaborative conversation in advanced. That said, it isn’t always possible to know whether an ESA that is acquired will help ameliorate symptoms.
  6. An ESA has to be allowed unless it fundamentally alters the housing provider’s operations or imposes an undue financial or administrative burden on the housing provider.
  7. Whether the animal has been trained is not a relevant consideration because ESA’s are not individually trained to perform specific tasks associated with their owner’s disability.
  8. This kind of case is not a contract case at all but rather a case sounding in disability discrimination and should be dealt with in that way.

 

IV

Thoughts/Takeaways

 

  1. As mentioned at the top, I have represented individuals in a very similar matter. A very critical point to take from this case is that the line between an ESA and an animal used to ameliorate symptoms of a person with MH can be very fine indeed. Also, as this case notes, service animals are not subject to this balancing test. An argument can be created from the facts in this opinion, that the dog discussed in this case was actually a service animal. In particular, when B.F. was in severe distress, the dog would join her in the closet and lick away her tears. If the dog is recognizing and responding to that situation and is being rewarded for doing that, then I would argue that the dog has been trained to recognize and respond to that situation and is a service animal.
  2. State laws do not always define a disability in the same way as the ADA and the FHA do. New Jersey is one such state. Illinois is another. New Jersey goes even further than the ADA and the FHA because it does not require a substantial limitation on a major life activity. Instead, it has alternative ways to establish a disability.
  3. I have seen quite frequently a resident tell me they have an ESA. It doesn’t take much questioning to find out that the ESA is actually a psychiatric service animal trained to deal with their MH in a variety of ways. Once the dog is a service animal, that puts the dog and the case on a completely different field.
  4. Whether an emotional support animal is involved, is a fact intensive inquiry.
  5. In my opinion, a service animal can be one utilized only in the home. Mine certainly is. I am, as everyone knows, a deaf proud individual who functions entirely in the hearing world with Bluetooth technology, lipreading, and advanced hearing aids. I very much utilize my dog while I work virtually. However, I don’t need my dog outside of the residence I am inhabiting on a day-to-day basis. While I practice law virtually, my dog does act as a service animal by alerting me to sounds that I wouldn’t otherwise hear.
  6. The case offers an excellent roadmap for any landlord dealing with ESA requests.
  7. Hard to believe that an ESA could ever result in an undue financial or administrative burden or fundamentally alter the housing provider’s operations.
  8. Direct threat as we know from our blog is a term of art. While HUD guidance doesn’t talk about what it direct threat is, I would suggest analogizing it to the requirements set out in Chevron v. Echazabal (requiring an individualized analysis and objective evidence).
  9. This case makes clear that everything short of direct threat, fundamental alteration, or undue burden, must be attempted first before denying the ESA.
  10. With respect to ESA’s, it is unnecessary for the dog to be trained. However, as this case makes clear and I have seen in my own practice, it is not hard at all to consider a dog trained to deal with a variety of MH conditions when they flare up. Also, anybody can train their animals to be a service animal.
  11. Whenever dealing with reasonable accommodation/modification requests, always engage in the interactive process. We discussed the do’s and don’ts of the interactive process here.
  12. I am not licensed in New Jersey. When it comes to LAD, a New Jersey license attorney should be consulted.

Just recently, North Dakota enacted into their Constitution an age limit, here, for those serving in the U.S. House and the U.S. Senate. In particular, that constitutional amendment says: “no person may be elected or appointed to serve a term or a portion of the term in the U.S. Senate or the U.S. House of Representatives if that person could attain 81 years of age by December 31 of the year immediately preceding the end of the term.” I got to wondering whether this amendment will withstand scrutiny if it is ever challenged. Currently, nobody from North Dakota is in danger of activating this constitutional amendment but they certainly could be down the road. For reasons to be explained in this blog entry, if this constitutional amendment is ever challenged, that challenge will likely be successful. As usual, the blog entry is divided into categories, and they are: the constitutional challenge: U.S. Term Limits majority opinion; the constitutional challenge: U.S. Term Limits dissenting opinion; thoughts/takeaways U.S. Term Limits; and the ADA challenge. Of course, the reader is free to focus on any or all of the categories.

 

I

The Constitutional Challenge: U.S. Term Limits Majority Opinion

 

In 1995, United States Supreme Court decided the case of U.S. Term Limits, Inc. v. Thornton, here. In that decision, the U.S. Supreme Court in a 5-4 decision, threw out term limits that the voters of Arkansas had passed for U.S. House members and U.S. Senate members. The only person on the Court at the time that is still on the court is Justice Thomas, and he wrote a dissenting opinion in that case.

In throwing out the term limits, the following from the majority opinion is particularly significant.

 

  1. The Framers made clear that the opportunity to be elected was open to all.
  2. Madison said in the Federalist that the door of the legislature of the federal government was open to merit of every description, whether native or adoptive, whether young or old (emphasis added), and without regard to poverty or wealth, or to any particular profession of religious faith.
  3. The power to add qualifications is not within the original powers of the States, and is not reserved to the States by the Tenth Amendment.
  4. The Framers intended the Constitution to be the exclusive source of qualifications for members of Congress, and the Framers divested States of any power to add qualifications. In other words, neither Congress nor the States have the power to supplement the exlusive qualifications set forth in the text of the Constitution.
  5. Madison also said in the Federalist that every citizen whose merit may recommend him to the esteem and confidence of the country can be the object of popular choice. No qualification of wealth, of birth, of religious faith, or of simple profession is permitted to fetter the judgment or disappoint the inclination of the people.
  6. The Framers intended the Elections Clause to grant States authority to create procedural regulations, not to provide them with license to exclude classes of candidate from federal office.
  7. A state amendment is unconstitutional when it has the likely effect of “handicapping,” (word used in the opinion itself), a class of candidates and has the sole purpose of creating additional qualifications indirectly.
  8. The framers decided that the qualification for service in the Congress be fixed in the Constitution and be uniform throughout the country.

 

II

The Constitutional Challenge, U.S. Term Limits Dissenting Opinion

 

  1. Nothing in the Constitution deprived the people of each State of the power to prescribe eligibility requirements for the candidate seeking to represent them and Congress. The Constitution is simply silent on that. Where the Constitution is silent, it raises no bar to action by the States or the people.
  2. If the people of a State decide they would like their representative to possess additional qualifications, they have done nothing to frustrate the policy behind the qualification clauses. Anyone possessing all of the constitutional qualifications, plus some qualifications required by state law, still has all of the federal qualifications.
  3. The fact that the Constitution specifies certain qualifications that the Framers deemed necessary to protect the competence of the national legislature did not imply that it strips the people of individual States of the power to protect their own interests by adding other requirements for their own representative.
  4. The Framers did not want the federal Constitution itself to impose a broad set of disqualifications for congressional office. The Framers also did not want the federal Congress to be able to supplement the few disqualifications that the Constitution does set forth. The logical conclusion is that the Framers did not want the people of the States and their state legislatures to be constrained by too many qualifications imposed at the national level. That is not at all the same thing as an intent to bar the people of the States and their state legislatures from adopting additional eligibility requirements to help narrow their own choices.
  5. The framers actually were very aware of the policy discussion behind whether term limits should be imposed and they never explicitly ruled them out.

 

III

Thoughts/Takeaways U.S. Term Limits

 

  1. Both the majority and dissenting opinion makes clear that the framers were aware of the public policy discussion behind whether term limits could be imposed. That cuts either way with respect to term limits.
  2. It is clear from the majority opinion that the constitutional amendment in North Dakota will fail to a constitutional challenge if the amendment is challenged.
  3. Even under the dissenting opinion, a constitutional challenge might still fail. It can be argued that there is a distinction between an eligibility requirement and a qualification. Term limits would be an eligibility requirement as it doesn’t affect the qualifications for holding office. On the other hand, the age limit is most certainly a qualification for holding office.

 

IV

The ADA Challenge

 

Of course, since this is the understanding the ADA blog, you had to expect a discussion of an ADA challenge. The challenge would go something like the below.

 

  1. A constitutional amendment is part of the State’s governing structure. Therefore, Title II of the ADA applies.
  2. The ADA prohibits discrimination against a person who is regarded as having a physical or mental impairment. 42 U.S.C. §12102(1)(c). Clearly, the amendment regards persons 81 years or older as having cognitive impairments that do not allow them to perform the job of a legislator in Congress.
  3. The ADA prohibits discrimination against a person with an actual disability or who has a record of a disability. 42 U.S.C. §12102(1)(a),(b).
  4. Under title II of the ADA, a person is considered to be otherwise qualified if he or she can, with the without reasonable modification to rules, policies, or practices; the removal of architectural, communication, or transportation barriers; or the provision of auxiliary aids and services, meets the essential eligibility requirements for receiving services or participating in programs or activities provided by a public entity. 28 C.F.R. §35.104
  5. 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. 28 C.F.R. §35.130(b)(3)(i),(ii). Both would seem to be satisfied by the North Dakota constitutional amendment.
  6. A public entity shall not impose or apply eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully and equally enjoying any service, program, or activity, unless such criteria can be shown to be necessary for the provision of the service, program, or activity being offered. 28 C.F.R. §35.130(b)(8). Hard to believe that the screening out would be necessary in all circumstances. The EEOC, for example, has certainly gone after healthcare entities that take that approach with respect to screening of physicians that are older.
  7. As we know, the ADA requires an individualized analysis, which the amendment to the North Dakota Constitution simply does not allow.
  8. So, there is little doubt that the North Dakota constitutional amendment regards persons as having a disability and fosters discrimination upon them. It also prevents people older than 81 years old (regardless of whether they have a disability of some kind), without cognitive impairments from being officeholders at the federal level regardless of whether reasonable modifications can be made to enable them to perform the job of the legislator.
  9. Federal law always prevails over conflicting state enactments per the supremacy clause. Meeting today
  10. In short, the 81-year-old limitation is, in my opinion, extremely likely to fail if challenged. Successful challenges could either be constitutional or based upon the ADA.

I always assumed that a dog satisfying the definitions of a service animal under the DOJ final regulations for title II and title III of the ADA would have to be automatically allowed by an employer where the employee has a service dog satisfying that definition. At least in the Eighth Circuit, that isn’t the case. The Eighth Circuit has also set up a circuit court split with respect to the case that we discussed last week. A law 360 article on this case says that plaintiff will be seeking review by the United States Supreme Court. Since there is a circuit court split, the possibility of the Supreme Court granting review increases. The case of the day is Howard v. City of Sedalia, Missouri, here. As usual, blog entry is divided into categories (I decided for organizational purposes to go about the court’s reasoning not in the order that it appears in the opinion), and they are: facts; court’s reasoning that certain arguments were not preserved properly for appeal; court’s reasoning that privileges and benefits of employment were not involved, so the dog need not be granted as a reasonable accommodation in order for plaintiff to access privileges and benefits of employment; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

Samantha Howard is a pharmacist who has suffered from Type I diabetes since infancy. While attending pharmacy school, she was diagnosed with hypoglycemic unawareness, which prevents her from knowing when her blood sugar has dropped to a dangerously low level. In March 2019, after graduating, Howard began working as a pharmacist at Bothwell Regional Medical Center (Bothwell), a facility operated by the City of Sedalia, Missouri. Howard told her supervisor, Brad Nicholson, that she has diabetes; he granted her request to keep food and drink at her desk while working alone. She did not inform Bothwell that she was on a waiting list for a diabetic-alert service dog that can detect an impending blood sugar drop to help a diabetic prevent and mitigate hypoglycemic emergencies.

In early June 2020, Howard was told a service dog (“Corry”) would be available in August. She told Nicholson and Bothwell’s Director of Human Resources and Support Services that she would need the dog by her side constantly for six months to train the dog; after that, she could go to work without the dog. She requested being allowed to bring the service dog into the main pharmacy, but not the sterile “clean room” or the “anteroom,” where employees prepare for clean room activities. Bothwell, with no prior employee request for a service animal accommodation, assembled a team of managers and medical staff to analyze Howard’s request; each member concluded that the presence of a service dog in the pharmacy was a risk to the safety of Bothwell’s patients and should not be allowed.

In August, Bothwell emailed Howard that her request to bring a service animal into only certain areas of the pharmacy was denied because “such an action would not resolve the potential risks of contamination,” but that Bothwell intended to work with Howard to find a different accommodation. When the parties could not agree on an alternative accommodation, Howard resigned on September 18. Bothwell urged her to reconsider. “[A]fter talking with counsel,” Howard declined Bothwell’s proposal that a mutually-agreed-upon third party inspect the pharmacy and determine whether her service animal would pose a risk, stating, as she repeated at trial, that she would not accept any accommodation other than bringing her service dog into the pharmacy.

Howard filed a lawsuit alleging that the failure to make a reasonable accommodation violated the ADA. After a four-day trial, the jury returned a verdict for Howard, awarding her $111,548.86 in compensatory damages and $18,451.14 in emotional damages. Defendant appealed its denial of its motion for judgment as a matter of law.

II

Court’s Reasoning That Certain Arguments Were Not Preserved Properly for Appeal

  1. Howard through her attorney, abandoned her essential function claim when she agreed not to submit a jury instruction on that issue during argument on defendant’s motion for judgment as a matter of law. It doesn’t matter that Howard submitted a proposed jury instruction and proceeded only on a benefits and privileges theory because that was the district court’s view of the case. The back-and-forth with the trial judge clearly gave Howard the opportunity to preserve an essential functions of the job argument for appeal, but counsel elected not to proceed down that path. Howard could have also cross appealed the district court’s decision not to give the proposed instruction dealing with essential functions of the job but did not do so.
  2. The issue of whether a new trial should be granted rather than judgment as a matter of law was also waived because Howard never argued in her appellate brief what issues should be available if the case were to be remanded.
  3. The argument that 29 C.F.R. §1630.2 (o)(1)(iii) as construed by the EEOC in their interpretive guidance on title I and in their technical assistance manual is an invalid agency interpretation of the governing ADA statutory provisions was not raised by Howard and is without merit.

III

Court’s Reasoning That Privileges and Benefits of Employment Were Not Involved, so the Dog Need Not Be Granted As a Reasonable Accommodation for Plaintiff to Access Privileges and Benefits of Employment

  1. EEOC implementing regulations define the term reasonable accommodation as including three distinct requirements: 1) modifications or adjustments enabling a job applicant to be considered; 2) modifications or adjustments to the work environment, which in the manner or circumstances under which the position held or desired is customarily performed, that enable an individual with a disability who is qualified to perform the essential functions of that position; and 3) modifications or adjustments enabling a covered entity’s employee with a disability to enjoy equal benefits and privileges of employment as are enjoyed by other similarly situated employees without disabilities (emphasis in opinion).
  2. In Hopman, which we discussed here, the Eighth Circuit said that the ADA intended to bar employer discrimination in providing a benefit or privilege offered to employees that does not directly affect the ability of a qualified individual to perform her job’s essential functions.
  3. Citing to the EEOC’s interpretive guidance, the court noted that the EEOC has said that an adjustment or modification that assists the individual throughout his or her daily activities, on and off the job, is a personal item that the employer is not required to provide. That is, an employer is not generally required to provide an employee with a disability with a prosthetic limb, wheelchair, or eyeglasses. Nor would an employer have to provide as an accommodation any amenity or convenience that is not job-related… That is not provided to employees without disabilities (emphasis in opinion). This obligation applies to all services and programs provided in connection with employment, and to all non-work facilities provided or maintained by an employer emphasis in opinion), for use by its employees. So, the obligation to accommodate is applicable to employer-sponsored (emphasis in original), placement or counseling services, and to employer provided (emphasis in original), cafeterias, lounges, gymnasium, auditorium, transportation and the like.
  4. EEOC guidance also says that an individual with a disability is otherwise qualified if he or she is qualified for a job, except that because of the disability, he or she needs a reasonable accommodation to be able to perform the job’s essential functions.
  5. EEOC guidance also says that when no duty exist to provide an adjustment or modification because it it is considered a personal item under the regulations, it is not a violation of the ADA to not provide that adjustment or modification (the court’s formulation here is extremely confusing but I believe (see also later in this blog as well for why I am convinced this is the case), that is what the court is trying to say.
  6. Howard did not dispute that she was qualified to do her job with or without reasonable accommodations. The district court observed that Howard did her job from March 2020 through August 2021 by her own admission and received good recommendations and got raises without a service animal. There was also no testimony that anything had changed over time.
  7. In Hopman, the Eighth Circuit said that benefits and privileges of employment: 1) refers only to employer provided services; 2) must be offered to non-disabled individuals in addition to disabled ones; 3) does not include freedom from mental or psychological pain; and 4) Hopman failed to introduce the evidence needed to prove that claim.
  8. In response to defendant’s question, as part of the interactive process, asking Howard to detail what specific parts of the job she was unable to perform because of her impairment, she responded that, “a diabetic service animal would enhance my ability to function in all aspects of my role as a pharmacist.” Such a response is a job performance argument, an argument she also made in her trial testimony.
  9. At trial, Howard was asked how the dog would allow her to enjoy the same benefits as the other employees in the pharmacy who do not have disabilities. Her response was that she imagined that other employees have the ability to manage their conditions however they see fit and with the service animal being there she was able to do the same thing, manage her diabetes and not have her employer dictate what she can and cannot do, especially when her employer has never talked to her physician or knows anything about her diabetes. This statement of Howard is also a job performance argument.
  10. The governing regulations limit an employer’s ADA duty to make this accommodation to employer-sponsored placement or counseling services, and to employer provided facilities. That limitation reflects long-standing judicial and agency efforts to keep accommodation requirements (emphasis in opinion), within manageable bounds. The employer’s duty to provide equal benefits and privileges of employment is limited by the plain text of the regulation.
  11. Howard failed to identify any employer-sponsored benefit or program that she lacked access to.
  12. Under controlling regulation, if an adjustment or modification assists the individual throughout his or her daily activities, on and off the job, it will be considered a personal item that the employer is not required (emphasis in opinion), to provide. That is, providing a service dog at work so that an employee with a disability has the same assistance the service dog provides away from work is not a cognizable benefit or privilege of employment.

IV

Thoughts/Takeaways

  1. This was not a case where the argument was that the service animal was needed in order for the plaintiff to perform the essential functions of the job with or without reasonable accommodations as plaintiff waived that argument.
  2. “Privileges and benefits, has a fairly narrow defined meaning.
  3. Under the reasoning of this court, a service animal would never be allowed for an individual with a disability to help them enjoy the privileges and benefits of employment regardless of what those privileges and benefits are because the dog works both at work and away from work. This reasoning to my mind goes too far as a service animal provides the very same functions as hearing aids, glasses, wheelchairs, etc. It is one thing to say that an employer does not have to provide those items for an individual with a disability. It is quite another to say that an employer does not have to allow those items, which is what is going on here. In my view, the EEOC in the guidances cited by the court are talking about the distinction between having to provide an item v. having to allow an item. The two are not at all the same thing as the Eighth Circuit seems to suggest.
  4. When dealing with service animals in the workplace, it is critical, especially after this case, to make sure that essential functions of the job with or without reasonable accommodations arguments are preserved and those arguments made. It is also clear that a service animal under this decision would never have to be allowed by an employer for that animal to help an employee enjoy the privileges and benefits of employment regardless of how privileges and benefits might be defined. That is a bridge too far.
  5. The circuit court split occurs with respect to the case we discussed last week, here, in an unpublished decision from the Sixth Circuit. There, the Sixth Circuit talks about how reasonable accommodations need to focus on obstacles to employment, which is most certainly is not the focus of the Eighth Circuit. The 11th Circuit, as we have discussed here, also focuses on the disability and not on the essential functions of the job with respect to what is needing to be accommodated. The Second Circuit in a decision from quite a long time ago, tracks the 11th Circuit, as we discussed here.
  6. So, as a result of other circuits focusing on either obstacles or on accommodating the disability and not the job’s essential function, there is quite arguably a circuit court split that tees up for Supreme Court review. As noted above, this particular opinion as phrased goes way too far (dogs which are incredibly popular in the U.S. are also involved). So, I would not assume that the Supreme Court would decide against Howard should it decide to hear the case.
  7. In an appellate brief, be sure to discuss what should be addressed by the lower court should the appellate court remanded the case for further proceedings.
  8. It will be interesting to see if the EEOC gets involved as an amicus going forward as their guidances and regulations could very well have been misinterpreted by the Eighth Circuit.
  9. The court only implicitly addresses how to analyze reasonable accommodations. They strongly suggest there must be a direct link between the accommodation and the activity and that is not what the Sixth Circuit did in Yanick, which we discussed last week. It isn’t the approach of the 11th Circuit or the Second Circuit either.
  10. An argument can be made that the Eighth Circuit has misinterpreted the EEOC’s interpretive guidance by confusing providing v. allowing. So, that tees up a Kisor, discussed here, issue for the Supreme Court as to how much a court should defer to the EEOC guidance, assuming the Eighth Circuit’s view is correct in the first place, which is by no means a foregone conclusion. Perhaps, the EEOC will now consider adopting as a final regulation rules similar to the DOJ service animal rules for Title II and Title III.
  11. You often see courts using the term, “otherwise qualified” in ADA cases. It is actually a Rehabilitation Act term and not an ADA term at all. However, the two terms have identical meanings. Personally, I prefer “otherwise qualified,” to “qualified,” as the former clearly represents a term of art.
  12. Why the employer did not talk to Howard’s physician is not clear. If the employer had, maybe the employer would have been able to rule out all other alternatives besides the service animal. The employer may have also found out that the service animal was the only possibility. An interactive process exploring all possibilities would have saved a lot of litigation costs.

Today’s blog entry explores an unpublished decision from the Sixth Circuit on April 29, 2024, that discusses some important points regarding reasonable accommodations. The case is Yanick v. The Kroger Company of Michigan, here. As usual, the blog entry is divided into categories, and they are: facts; what is sufficient notice from an employee that a reasonable accommodation is needed; when is an accommodation reasonable; EEOC charges are important; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

For 15 years, plaintiff met the expectations of working in the bakery. In 2018, she was diagnosed with breast cancer and a new person took over as the store manager. Plaintiff said the new store manager badgered, criticized, and harassed her. The store manager would ask the plaintiff numerous questions and was usually unfriendly and critical.

 

When issues in the bakery department persisted, the store manager called the plaintiff into her office and they had three meetings over nine days. At the final meeting, the store manager said plaintiff was expected to carry out her duties or she would face discipline up to and including termination. She was also informed that rather than continue as bakery manager, the plaintiff could step down. Plaintiff believed that this meant she should step down from her position.

 

Shortly after the final meeting, plaintiff clocked out and began medical leave. In plaintiff’s medical forms, her Dr. specified she needed leave in order to avoid undue mental distress and undergo surgery. Within a week of starting that leave, plaintiff complained about her experiences with her store manager using Kroger’s hotline. She alleged that the store manager knew she had breast cancer but harassed her anyway. She emphasized on the hotline that the store manager threatened discipline and after being informed by the plaintiff that she was going on medical leave, told the plaintiff that it might be a good time for the plaintiff to think about stepping down.

 

Plaintiff’s doctor initially estimated that plaintiff would return to work on March 28, 2018. However, by March, plaintiff still had a 10 pounds lifting restriction in place. So, Kroger extended her leave for a few more months.

 

Plaintiff returned to work on June 11, 2018, without restrictions. Despite four months having passed, things between the plaintiff and her store manager continued where they left off. In the store manager’s view, plaintiff still wasn’t meeting expectations. Plaintiff said she was struggling and needed some time to get back to normal. She also told the store manager that she had worked 53 hours her first week back, which was very hard on her physically. She also mentioned that she was trying to get the hang of Kroger’s new program. In response, store manager asked who approved her overtime. She also noted that business is business. Finally, she said that if things continued, plaintiff could be disciplined or fired. Alternatively, plaintiff could step down. Plaintiff at first agreed to step down but then changed her mind and left the meeting.

 

Over the next week, other employee got involved. One of plaintiff’s supervisors advised her that the store manager could not force her to step down. That supervisor and a coordinator from HR also agreed to give plaintiff more training. Subsequently, the HR coordinator talked with the plaintiff and the store manager. Finally, plaintiff heard from a few bakery department employees who said that the department needed both more help and to be more organized.

 

On June 26, 2018, plaintiff stepped down. She first transferred to a different department but ultimately, ended up working as a bakery clerk at a different Kroger with a lower salary and less authority. Plaintiff then turned to legal action by filing a claim with the EEOC and receiving a right to sue letter. When the District Court granted summary judgment for Kroger, she appealed.

 

 

 

II

What Is Sufficient Notice from an Employee That a Reasonable Accommodation is Needed

 

  1. In a failure to accommodate claim, a plaintiff has to provide direct evidence of discrimination. That is, plaintiff has to show that she requested an accommodation and that her request was objectively reasonable.
  2. There is no bright line rule for determining whether an employee requested an accommodation. Instead, one has to generally assess whether the employee communicated the need for an adjustment at work because of a disability and context matters.
  3. Plaintiff’s following statements could arguably be considered a reasonable accommodation request for reduced work schedule: 1) that she needed some time to get back to normal; 2) that she was struggling; 3) that the job was hard for her physically; and 4) that she had worked 53 hours the week before and wanted the chance to get used to all the work again In fact, the lower court essentially said that these statements were a request for a reduced work schedule .
  4. She also tied those statements her disability. In particular, plaintiff had recently undergone breast cancer surgery and was on medical leave for four months, which was information the store manager knew. Also, the meeting with the store manager occurred within one week of plaintiff returning to work. So, plaintiff did not have to say that she was tired because of her recent surgery as Kroger should have made that reasonable inference.
  5. Plaintiff’s comments provided just enough information in context to raise a triable issue, and Kroger has not shown that the evidence is so one-sided that a jury could only rule in its favor on this point.
  6. Kroger did not ask plaintiff to provide more medical documentation, which it could have done if it thought that her lingering issues may not be genuine.
  7. It doesn’t matter that plaintiff had an earlier note saying that she could return to work without restrictions because to hold otherwise, would relieve the employer from providing accommodations whenever an employee returns without restrictions when restrictions later prove necessary.
  8. In a summary judgment motion, the record must be construed in the light most favorable to the nonmoving party and not to the moving party.

 

III

When Is an Accommodation Reasonable

  1. Whether a person makes a reasonable accommodation request is a question of fact.
  2. An employee has to show that the proposed accommodation is reasonable on its face. In other words, the question is whether plaintiff’s accommodation request is reasonable in the general run of cases.
  3. Modified work schedules are a classic example of a reasonable accommodation and are explicitly covered in the ADA at 42 U.S.C. §12111(9)(B).
  4. Accommodation is reasonable only if it addresses a key obstacle preventing the employee from performing a necessary function of the job.
  5. Plaintiff’s proposed accommodation would help her effectively perform her job. Her key obstacle was fatigue. Plaintiff was tired and exhausted. She told the store manager that the job was hard for her physically after having worked a 53 hour week the week before. As a bakery manager, she had to lift items weighing more than 10 pounds. A way to combat fatigue would be less work. A reduced work schedule would provide the plaintiff with more time to recuperate and allow her to get acclimated to her job’s physical demands.
  6. Whether Kroger’s argument that plaintiff resigned before engaging in an interactive process will carry the day is a fact intensive issue that needs to be addressed by the lower court on remand.
  7. The constructive discharge claim fails because plaintiff cannot show objective intolerability of the work environment and no reasonable jury could find otherwise. So, without an adverse employment action, plaintiff’s disability discrimination and retaliation claims fail.

 

 

 

IV

EEOC Charges Are Important

 

  1. While plaintiff filed her EEOC charge pro se, she did not check the box for retaliation in the charge. Her charge also lacked facts that would put the EEOC or Kroger on notice that she intended to pursue a retaliation claim. While her precharge inquiry form spoke of retaliation, that form is not a charge under title VII.

 

V

Thoughts/Takeaways

 

  1. I haven’t seen before a court saying that failure to accommodate claims require direct evidence in the way that term is used when dealing with the McDonnell Douglas paradigm in summary judgment matters. Kind of strange to refer to it that way considering, as even this court noted, that magic words are not required. Not only are magic words not required, context can make for a reasonable accommodation request. So, I would be very careful about this “direct evidence,” language in the opinion.
  2. To this court, the standard for requesting a reasonable accommodation and requiring the start of the interactive process, turns on a general assessment of whether the employee communicated the need for an adjustment at work because of a disability given the particular context. That is certainly one way to look at it. I think looking at it that way is unnecessarily complicated. I prefer the formulation that an employee only has to provide the employer with enough information so that the employer can be fairly said to know about the disability and the desire for an accommodation. EEOC v. Crane Automotive Holdings LLC (E.D. AR, 4/11/19). I don’t think that the two formulations are all that different from each other because context obviously matters in both formulations, rather the former is just unnecessarily complicated.
  3. An employer always has the right to insist on reasonable documentation to support a reasonable accommodation request. However, that request needs to be narrowly focused and not a fishing expedition or a means of discouraging a person with a disability from making such a request.
  4. The record in a summary judgment motion must be construed in the light most favorable to the nonmoving party.
  5. Whether a person makes a reasonable accommodation request is a question of fact.
  6. I see the phrase “general run of cases,” all the time. I have no idea what it means.
  7. There is an implication in this decision that a failure to accommodate claim does not require an adverse action. As we discussed in this blog entry, it is certainly headed that way.
  8. You don’t have to hire a lawyer to file an EEOC charge. However, as this case makes clear, it is very helpful if you do as there are traps a person could otherwise fall into.
  9. 100% return to work policies are not advisable. See this blog entry.
  10. I can’t tell you how often I have seen new supervisors cause problems. Companies need to have training (training is a huge part of my practice), programs in place for supervisors and those programs should not be just a one time thing.
  11. The court’s reasoning about when an accommodation will be deemed reasonable is actually very plaintiff friendly. We have previously talked about whether what is being accommodated is the disability or whether it is the essential functions of the job (see here for example). This court’s formulation for the test of when an accommodation is reasonable essentially splits the difference. In particular, an accommodation is reasonable only if it addresses a key obstacle preventing the employee from performing a necessary function of the job. The “key obstacle,” language is very significant because it doesn’t necessarily relate to an essential function of the job but rather to an obstacle to performing a necessary function of the job. The two are not at all the same thing. For example, this formulation would make a big difference in cases where the employer argues that a particular accommodation does not relate to the job’s essential functions. With this court’s formulation, that isn’t the issue. The issue would be whether the accommodation removes an obstacle to performing necessary functions (i.e. essential functions of the job). An accommodation relating to an essential function of the job and an accommodation relating to removing an obstacle to performing essential functions of the job are not at all the same thing. For example, a service animal may have nothing to do with the essential functions of a particular person’s job but without the service animal, the person could not do the job certainly not to their abilities. That is, a service animal removes all kinds of obstacles to doing the necessary functions of the job. The service animal is what comes to mind immediately, but I undoubtedly could come up with other examples as well with respect to the distinction between relating to an essential function of the job and removing an obstacle to performing an essential function of the job. Yanick’s formulation of when an accommodation is reasonable means that service animals would always be a reasonable accommodation. It would also make for interesting litigation with respect to an emotional support animal. Remember, the EEOC, unlike DOJ, has nothing with respect to service animals or emotional support animals in its final regulations.

I hope everyone had a great Memorial Day weekend. Today’s blog entry deals with the question of whether the Civil Service Reform Act, Title VII, and the ADA can all coexist at the same time. The case of the day is Lucas v. American Federation of Government Employees decided on March 29, 2023,  lower court opinion here, currently pending before the US Court of Appeals for the D.C. Circuit. As usual, the blog entry is divided into categories and they are: trial court opinion; EEOC amicus brief at the appellate court level detailing why the lower court got it wrong that the CSRA is the exclusive remedy for the plaintiff; EEOC’s view that unions can be liable for a hostile work environment; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Trial Court Opinion

 

The facts of the case are rather straightforward. The plaintiff complained of harassment by her bargaining unit on the basis of sex and disability. She also alleged a hostile work environment. The trial court judge, Amy Berman Jackson, said that the ADA and Title VII claims had to be dismissed because the Civil Service Reform Act mandated that this was the exclusive province of the Federal Labor Relations Authority. Plaintiff appealed and the EEOC weighed in with an amicus brief detailing why in their opinion, the lower court got the decision wrong.

 

II

EEOC’s Amicus Brief at the Appellate Court Level Detailing Why the Lower Court Got It Wrong that CSRA Is the Exclusive Remedy for the Plaintiff

 

  1. Discrimination claims under Title VII and the ADA are not at all the same thing as unfair representation claims even when both sets of claims are premised on the same conduct.
  2. Discrimination and unfair representation claims are distinct and independent causes of action, each with its own unique requirements for establishing a violation.
  3. Considering the distinct requirements, a union’s conduct can constitute discrimination under Title VII or the ADA, but not unfair representation under the CSRA (Civil Service Reform Act).
  4. Title VII and the ADA have a broader collection of remedies than what exists under the CSRA, including compensatory and punitive damages, so a federal court may often provide the only form in which a plaintiff can obtain adequate relief or discrimination by a federal-employee union.
  5. Both the ADA and Title VII apply to labor unions, including federal-employee unions.
  6. Title VII makes it unlawful for a union to exclude or to expel from membership, or otherwise to discriminate against, any individual because of the individual’s race, color, religion, sex, or national origin. It also makes it unlawful for a union to limit, segregate, or classify its membership or applicant for membership, or to classify or fail or refuse to refer for employment any individual, in any way which would deprive or tend to deprive an individual of employment opportunities, or would limit such employment opportunities or otherwise adversely affect that person’s status as an employee or as an applicant for employment, because of such individual’s race, color, religion, sex, or national origin. It also prohibits unions from causing or attempting to cause an employer to discriminate against an individual in violation of Title VII.
  7. The ADA makes similar conduct the unlawful discussed in ¶ 6 immediately above, when based on a disability. The ADA also prohibits additional forms of discrimination, including not making reasonable accommodation to the known physical or mental limitations of an otherwise qualified individual with a disability.
  8. The protections afforded by Title VII and the ADA are not limited to union members or members of a particular bargaining unit. After all, Title VII encompasses discrimination against any individual, while the ADA encompasses discrimination again a qualified individual with a disability. Neither statute is limited to discriminatory conduct that breaches a collective bargaining agreement and both encompass harassment claims against unions.
  9. A union’s duty of fair representation extends only to employees in the unit it represents.
  10. The CSRA encompasses a narrow category of discrimination that prohibits discrimination based on sex or “handicapping condition,” with regard to the terms or conditions of membership in the labor organization.
  11. Citing to a variety of cases, including a Ninth Circuit case, a union’s conduct may constitute discrimination even when it does not constitute unfair representation. That is, a plaintiff can still have a Title VII or ADA claim even if she can prove a violation of the labor laws.
  12. In a footnote, the EEOC cites to a D.C. Circuit case and notes that a union’s conduct can constitute both discrimination and unfair representation.
  13. The standard for proving unfair representation is more rigorous than Title VII and the ADA because courts generally accord deference to a union in the labor context.
  14. On the other hand, there is no reason to grant unions the same deference when it comes to determining if they discriminated against their members on the basis of a protected classification. Instead, “plaintiff-friendly pleading standards,” under Title VII and the ADA makes clear that the free hand unions have in labor matters does not extend to discrimination suits. Therefore, proving discrimination may be less difficult than proving unfair representation.
  15. The Supreme Court has acknowledged that a breach of the union’s duty of fair representation may prove difficult to establish, thereby making it noteworthy that Congress thought it necessary to afford the protections of Title VII against unions as well as employers.
  16. The CSRA, Title VII, and the ADA all have different procedural requirements, including different statute of limitations.
  17. Title VII and the ADA have a broader collection of remedies than under the CSRA. For example, compensatory and punitive damages are available under title VII and the ADA, while under the CSRA, they are extremely difficult (compensatory), or impossible (punitive), to obtain under the CSRA.
  18. The CSRA does not allow for jury trials while Title VII and the ADA do.
  19. Limiting a plaintiff to CSRA remedies when the claims also support Title VII and/or the ADA undermines the central purpose of antidiscrimination statutes, which is making persons whole for injuries suffered on account of unlawful employment discrimination.
  20. No indication that Congress intended for the CSRA to foreclose plaintiff from seeking and obtaining remedies available under Title VII or the ADA. In fact, the Supreme Court has noted that legislative enactments in the area have longer evinced a general intent to accord parallel or overlapping remedies against discrimination.
  21. EEOC guidance treats the CSRA as a parallel remedy when it specifically notes that when a federal employee files a discrimination charge with the EEOC against a federal union, that employee can also file an unfair labor practice charge as well.
  22. Courts have long treated discrimination and unfair representation claims as separate and distinct causes of action. As a result, the CSRA does not extend to discrimination claims under Title VII or the ADA, and the courts have jurisdiction over those claims that could also support an unfair representation claim.
  23. Several courts, including the D.C. Circuit, have recognized concurrent jurisdiction in the EEOC and the National Labor Relations Board and this should be no different.

 

III

EEOC’s View that Union Can be Liable for a Hostile Work Environment

 

  1. Both Title VII and the ADA make it unlawful for unions to discriminate against individuals based on sex or disability.
  2. The phrase “discriminate against,” in ordinary usage encompasses harassment as harassment includes distinctions or differences in treatment among protected individuals. Every Court of Appeals has said as much. Same goes for retaliation when a hostile work environment is a part of it.
  3. The statutory text of the CSRA is actually broader than Title VII and the ADA when it comes to discrimination that is prohibited, because it does not include the restriction that the conduct must be related to terms, condition, or privileges of employment.

 

IV

Thoughts/Takeaways

 

  1. In case you were wondering where the title for this blog entry comes from, we have seen this argument before. In Fry, the Supreme Court said that an individual needing a service animal did not have to exhaust the administrative remedies of IDEA. We also discussed how the Supreme Court in Perez said that a person seeking compensatory damages also does not have to exhaust administrative remedies associated with IDEA. Both of those decisions went off on the argument that the same set of facts could give rise to claims that address very different purposes. I must confess I was a bit surprised that the EEOC did not reference either of these Supreme Court decisions in their amicus brief.
  2. It seems to me that the EEOC has a very strong argument in light of the analogous Supreme Court opinions mentioned in IV1 of this blog entry. Also, considering those Supreme Court decisions, and the current configuration of this court, it would not surprise me in the least if the EEOC ultimately prevails on its argument should this case get to the Supreme Court.
  3. One wonders if the Supreme Court or even the appellate court would adopt a similar approach to Fry when deciding whether to allow claims to go ahead under Title VII and the ADA when a claim could also be unfair representation. It is perfectly logical to me how the same reasoning could be easily applied to this context. In other words, seeking out what is the gravamen of the complaint, asking hypothetical questions, etc.
  4. It also makes sense to me considering the configuration of the current Supreme Court, that the Supreme Court would find unions could be liable for creating a hostile work environment.
  5. Definitely looking forward to seeing how the D.C. Court of Appeals ultimately decides this case. Fascinating to me how Fry and Perez’s reasoning can be extended to other areas of the law.
  6. While I get the point EEOC was making about pleading standards under the various laws, I would not call Title VII and particularly the ADA, plaintiff friendly pleading standards.

Back in 2015, I blogged on the ACA proposed final regulations as it affected non-discrimination against persons with disabilities, here (this blog entry is still worthwhile reading). It turns out that the rule was finalized in 2016. Somehow, I didn’t blog on that. Now, HHS has issued a revised final rule for §1557. I thought it would be useful to look at it with respect to how it deals with nondiscrimination against persons with disabilities as usual, the blog entry is divided in the categories, and they are: history of the rule; highlights of the rule with respect to persons with disabilities; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

History of the Rule

On August 1, 2013, the HHS Office for Civil Rights (OCR) published a Request for Information in the Federal Register , 78 FR 46558,[1] followed by issuance of a notice of proposed rulemaking (NPRM) on September 8, 2015 (2015 NPRM), 80 FR 54171.[2] OCR finalized the first section 1557 regulation on May 18, 2016 (2016 Rule), 81 FR 31375. On June 14, 2019, the Department published a new section 1557 NPRM (2019 NPRM), 84 FR 27846, proposing to rescind and replace large portions of the 2016 Rule.[3] On June 12, 2020, OCR publicly posted its second section 1557 final rule (2020 Rule), which was published in the Federal Register on June 19, 2020, 85 FR 37160. The 2020 Rule remains in effect, save for the parts enjoined or set aside by courts, until the effective date of this final rule. In the meantime, entities that are subject to the 2020 Rule must continue to comply with the parts of the 2020 Rule that remain in effect.

On January 5, 2022, the Department proposed to amend CMS regulations such that Exchanges, issuers, and agents and brokers would be prohibited from discriminating against consumers based on their sexual orientation or gender identity in the HHS Notice of Benefit and Payment Parameters for 2023 NPRM, 87 FR 584 (January 5, 2022). CMS did not finalize the amendments in the Notice of Benefit and Payment Parameters for the 2023 final rule, 87 FR 27208 (May 6, 2022); instead, CMS proposed to make the amendments to its regulations in forthcoming Departmental rulemaking.

On July 25, 2022, OCR publicly posted the section 1557 NPRM associated with this rulemaking (2022 NPRM or Proposed Rule), which was published in the Federal Register on August 4, 2022, 87 FR 47824. OCR invited comment on the Proposed Rule by all interested parties. The comment period ended on October 3, 2022. In total we received 85,280 comments on the Proposed Rule.[4] Comments came from a wide variety of stakeholders, including but not limited to: civil rights/advocacy groups, including language access organizations, disability rights organizations, women’s advocacy organizations, and organizations serving lesbian, gay, bisexual, transgender, queer, or intersex (LGBTQI+) individuals; health care providers; consumer groups; religious organizations; academic and research institutions; reproductive health organizations; health plan organizations; health insurance issuers; State and local agencies; and tribal entities. Of the total comments, 79,126 were identified as being submitted by individuals. Of the 85,280 comments received, 70,337 (80 percent) were form letter copies associated with 30 distinct form letter campaigns.

 

 

II

Highlights of the Rule with Respect to Persons with Disabilities

 

  1. Regulations go into effect July 5, 2024 with a couple of exceptions.
  2. The regulations apply to: 1) every health program or activity, any part of which receive federal financial assistance, directly or indirectly, from the department; 2) every health program or activity administered by the department; and 3) every health program or activity administered by a ACA title I entity.
  3. Disability is defined in the same way as the ADA and the Rehabilitation Act.
  4. Health program or activity means: (1) Any project, enterprise, venture, or undertaking to: (i) Provide or administer health-related services, health insurance coverage, or other health-related coverage; (ii) Provide assistance to persons in obtaining health-related services, health insurance coverage, or other health-related coverage; (iii) Provide clinical, pharmaceutical, or medical care; (iv) Engage in health or clinical research; or (v) Provide health education for health care professionals or others.
  5. Regulations apply to all of the operations of any entity principally engaged in the provision or administration of any health projects, enterprises, ventures, or undertakings described in paragraph four immediately above, including, but not limited to, a State or local health agency, hospital, health clinic, health insurance issuer, physician’s practice, pharmacy, community-based health care provider, nursing facility, residential or community-based treatment facility, or other similar entity or combination thereof. A health program or activity also includes all of the operations of a State Medicaid program, Children’s Health Insurance Program, and Basic Health Program.
  1. Regulations define who is a qualified interpreter for an individual with a disability with respect to either utilizing video remote interpreting services or on site appearance.
  2. Any covered entity that employs 15 or more individuals has to designate and authorize a §1557 coordinator.
  3. A covered entity must implement written effective communication procedures in its health programs and activities describing the covered entity’s process for ensuring effective communication for individuals with disabilities when required under § 92.202. At a minimum, a covered entity’s effective communication procedures must include current contact information for the Section 1557 Coordinator (if applicable); how an employee obtains the services of qualified interpreters the covered entity uses to communicate with individuals with disabilities, including the names of any qualified interpreter staff members; and how to access appropriate auxiliary aids and services.
  4. A covered entity must implement written procedures in its health programs and activities describing the covered entity’s process for making reasonable modifications to its policies, practices, or procedures when necessary to avoid discrimination on the basis of disability as required under § 92.205. At a minimum, the reasonable modification procedures must include current contact information for the covered entity’s Section 1557 Coordinator (if applicable); a description of the covered entity’s process for responding to requests from individuals with disabilities for changes, exceptions, or adjustments to a rule, policy, practice, or service of the covered entity; and a process for determining whether making the modification would fundamentally alter the nature of the health program or activity, including identifying an alternative modification that does not result in a fundamental alteration to ensure the individual with a disability receives the benefits or services in question.
  5. Covered entity cannot rely on an adult instead of a qualified interpreter to interpret or facilitate communication except in certain limited circumstances, including: (1) Require an individual with limited English proficiency to provide their own interpreter, or to pay the cost of their own interpreter; (2) Rely on an adult, not qualified as an interpreter, to interpret or facilitate communication, except: (i) As a temporary measure, while finding a qualified interpreter in an emergency involving an imminent threat to the safety or welfare of an individual or the public where there is no qualified interpreter for the individual with limited English proficiency immediately available and the qualified interpreter that arrives confirms or supplements the initial communications with an initial adult interpreter; or (ii) Where the individual with limited English proficiency specifically requests, in private with a qualified interpreter present and without an accompanying adult present, that the accompanying adult interpret or facilitate communication, the accompanying adult agrees to provide such assistance, the request and agreement by the accompanying adult is documented, and reliance on that adult for such assistance is appropriate under the circumstances; (3) Rely on a minor child to interpret or facilitate communication, except as a temporary measure while finding a qualified interpreter in an emergency involving an imminent threat to the safety or welfare of an individual or the public where there is no qualified interpreter for the individual with limited English proficiency immediately available and the qualified interpreter that arrives confirms or supplements the initial communications with the minor child; or (4) Rely on staff other than qualified interpreters, qualified translators, or qualified bilingual/multilingual staff to communicate with individuals with limited English proficiency.
  6. Video remote interpreting services. A covered entity that provides a qualified interpreter for an individual with limited English proficiency through video remote interpreting services in the covered entity’s health programs and activities must ensure the modality allows for meaningful access and must provide: (1) Real-time, full-motion video and audio over a dedicated high-speed, wide-bandwidth video connection or wireless connection that delivers high quality video images that do not produce lags, choppy, blurry, or grainy images, or irregular pauses in communication; (2) A sharply delineated image that is large enough to display the interpreter’s face and the participating person’s face regardless of the person’s body position; (3) A clear, audible transmission of voices; and (4) Adequate training to users of the technology and other involved persons so that they may quickly and efficiently set up and operate the video remote interpreting.
  7. The title II effective communication rules are the ones that apply (primary communication).
  8. 2010 architectural standards are the applicable standards.
  9. Should somehow an undue financial, administrative burden, or fundamental alteration in the nature of the health program or activity exists, action must be taken up until that point in order to ensure to the maximum extent possible that individuals with disabilities receive the benefits or services of the health program or activity provided by the covered entity.
  10. A recipient or state exchange must comply with the requirements of §504 as interpreted consistently with title II of the ADA (I take that to mean that there have to be compliance with the DOJ title II regulations on website accessibility and mobile app accessibility).
  11. Policies, practices, or procedures have to be modified for a person with a disability unless a fundamental alteration exists.
  12. Health insurance coverage cannot be administered in a way that discriminates on the basis of disability. That means it cannot deny, cancel, limit, refuse to issue or renew health insurance coverage or other health related coverage, or deny or limit coverage of the claim, or impose additional cost sharing or other limitations or restrictions on coverage, on the basis of disability.
  13. Legitimate denials of coverage are okay if a nondiscriminatory reason for doing that exists. Those denials cannot be based upon unlawful animus or bias, or constitute a pretext for discrimination.
  14. Cannot discriminate against a person who associates with a person with a disability.

 

III

Thoughts/Takeaways

 

  1. The effective communication rules that apply are the title II rules (primary consideration).
  2. There are very specific provisions with respect to entities needing to set up systems to ensure that they communicate effectively with people with disabilities. One wonders if that won’t get a bit bureaucratic and make flexibility difficult. Whenever dealing with persons with disabilities, flexibility is everything. So, when coming up with the written procedures, be sure to meet the regulatory requirement but also maintain flexibility.
  3. Requires a §1557 coordinator. I don’t see why that person couldn’t be the same as the §504 coordinator. For that matter, the ADA coordinator as well. Keep in mind, the ADA has very different statutory provisions, regulations, and guidances depending upon what title is involved.
  4. The Deaf community is not a big fan of video remote interpreting services as VRI frequently has problems. The regulation builds in requirements to help ensure that those problems do not occur, but they often do in practice.
  5. The DOJ title II regulations on website accessibility and mobile app accessibility are to my mind, incorporated into this regulation.
  6. Legitimate reasons for denying coverage are okay but not reasons based upon bias or disability.
  7. Associational discrimination is out.
  8. When it comes to effective communication, especially in the healthcare setting, this blog entry is a must read.

As I anticipated, it was not possible for me to get a blog entry up last week with all the traveling I was doing. However, I am back now. Recently, HHS came out with their final 504 regulations, which we previously blogged on the proposed regulations here. There were a few changes that are worth noting but for the most part, the rule is pretty close to the proposed rule. Accordingly, the blog entry is divided into categories and they are: what stayed the same (with a few modifications, you can find a very similar list in the final regulation blog entry, here); what changed; and thoughts/takeaways. As usual, the reader is free to focus on any or all of the categories. The final regulation can be found here.

 

I

What Stayed the Same

 

  1. The definition of disability is to be construed broadly. This area of the final regulations, including its rules of construction, matches up pretty well with the EEOC approach to disability in their title I regulations.
  2. “Handicap,” his history and “disability,” is used instead.
  3. Very bizarre how the regulations say that regarded as prong should be the first option for people with disabilities. I find it bizarre because regarded as is not entitled to reasonable accommodations/modifications, which even the final regulation notes.
  4. Certain physical impairments are per se disabilities under the ADA and those include: deafness; blindness, intellectual disabilities; mobility impairments; autism spectrum disorder; cancer; cerebral palsy; diabetes; epilepsy; muscular dystrophy; multiple sclerosis; HIV; major depressive disorder; bipolar disorder; posttraumatic stress disorder; traumatic brain injury; obsessive-compulsive disorder; and schizophrenia.
  5. The outcomes a person can achieve have nothing to do with whether they have a disability (an example I thought of is in the medical standardized testing world, testing entities have claimed that a high GPA means a person is not entitled to accommodations for taking the test).
  6. Record of disability is to be defined broadly.
  7. In the regarded as prong of the definition of a disability, transitory and minor is an objective standard.
  8. HHS makes it clear that the exclusion in the ADA for gender identity disorders does not exclude an individual with gender dysphoria. As readers of my blog know, this is a hotly debated topic.
  9. A person who is currently illegally using drugs means illegal use of drugs occurring recently enough to justify a reasonable belief that a person’s drug use is current or that continuing use is a real and ongoing problem. As we discussed here, the case law in this area is incredibly complicated.
  10. The final regulations adopt title II of the ADA final regulations on how a qualified person with a disability is defined.
  11. As the final regulation notes, in many cases all operations of the entity must not discriminate against a person with a disability. The language is taken right out of 29 U.S.C. §794, §504 of the Rehabilitation Act, here.
  12. For entities taking HHS funds and an employment situation is involved, the applicable rules are title I of the ADA. You see a similar approach with respect to §501 of the Rehabilitation Act, which applies to federal employees.
  13. With respect to existing facilities, the final regulations take the DOJ title II final implementing regulations approach by focusing on program accessibility.
  14. With respect to secondary and adult education, a recipient of HHS funds providing childcare, preschool, elementary and secondary, or adult education may not, on the basis of disability, exclude qualified individuals with disabilities and must take into account the needs of such persons in determining the aids, benefits, or services to be provided. I find this provision very confusing because §504 uses a causation standard of “solely by reason of.” After Bostock, which we discussed here, “solely by reason of,” must have a very different meaning than “because of,” “by reason of,” and “on the basis of.” Same concern with the nondiscrimination provision against an individual with a substance or alcohol use disorder, which uses the term, “because of.” Also, same concern with the nondiscrimination provision and medical treatment, which uses the term, “on the basis of.”
  15. In the medical treatment section of the final regulation, several things, in addition to the causation concern noted above, are worth noting: 1) An HHS recipient may not deny or limit medical treatment to a qualified individual with a disability when the denial is based on (see causation concern above): A) bias or stereotypes about a patient’s disability; B) judgment that the individual will be a burden on others due to the disability, including, but not limited to caregivers, family, or society; or C) a belief that the life of a person with a disability has lesser value than the life of a person without a disability, or that life with a disability is not worth living; 2) a recipient may not deny or limit clinically appropriate treatment to a person with a disability if that treatment would be offered to a similarly situated individual without an underlying disability; 3) the recipient may not, on the basis of disability (see above concerns with causation), provide a medical treatment to an individual with the disability where it would not provide the same treatment to an individual without a disability unless the disability impacts the effectiveness, or ease of administration of the treatment itself, or has a medical effect on the condition to which the treatment is directed.
  16. In exercising professional judgment to deny certain treatment, an individualized analysis is necessary and must be based upon current medical knowledge or the best available objective evidence that such medical treatment is not clinically appropriate for a particular individual. (HHS is essentially incorporating how direct threat is determined per Supreme Court opinions and DOJ/EEOC regulations into denial of treatment decisions).
  17. Value assessment methods cannot screen out persons with disabilities. This particular section also has the same issue with causation when it uses the term, “on the basis of disability.”
  18. With respect to children, parents, caregivers, foster parents, and prospective parents and the child welfare system, causation is, “on the basis of disability.” Again, as noted numerous times above, §504 in 29 U.S.C. §794 doesn’t work that way, i.e. causation is, “solely by reason of.”
  19. With respect to children, parents, caregivers, foster parents, and prospective parents and the child welfare system, discrimination includes: 1) decision based on speculation, stereotypes, or generalizations that a parent, caregiver, foster parent, or prospective parent, because of (as mentioned above, “because of,” is not the same as, “solely by reason of),” the disability, cannot safely care for a child; and 2) decision based upon speculation, stereotypes, or generalizations about a child with a disability. Can’t use IQ alone as a basis for discriminatory decisions.
  20. Much of the general requirements section matches up with title II DOJ final implementing regulations pretty closely. Of particular note, are the screen out provisions and the adoption of a title II final implementing regulation that is very significant. I certainly have found it significant in my practice. In particular, the final regulations make it discriminatory to 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 recipient’s program.
  21. Surcharges are out.
  22. Discrimination is prohibited against people who associate with a person with a disability.
  23. Legitimate safety requirements are okay if necessary for the safe operation of the programs or activities. However, those safety requirements must be based on actual risks and not on mere speculation, stereotypes, or generalizations about individuals with disabilities.
  24. Perfectly okay to discriminate against an individual currently illegally using drugs. What current user means is complicated.
  25. The fimal regulation dealing with service animals matches up precisely with the DOJ final implementing regulations on service animals in title II and title III, including the way it deals with miniature horses.
  26. Power chairs can go anywhere but there are factors to consider when determining whether power chairs can be restricted where they go.
  27. Direct threat matches up with EEOC, DOJ, and Supreme Court opinions.
  28. Programs or activities receiving federal financial assistance from HHS must provide services in the most integrated environment appropriate to the needs of a qualified person with a disability. Particular violations of the integration final regulations include: A) establishing or applying policies or practices that limit or condition individuals with disabilities access to the most integrated setting appropriate to their needs; B) providing greater benefits or benefits under more favorable terms in segregated setting than in integrated settings; C) establishing or applying more restrictive rules and requirements for individuals with disabilities in integrated settings then for individuals with disabilities in segregated settings; and D) failure to provide community-based services resulting in institutionalization or serious risk of institutionalization. That includes but is not limited to: planning, service design, funding, or service implementation practices that result in institutionalization or serious risk of institutionalization. Individuals with disabilities need not wait until the harm of institutionalization or segregation occurs in order to assert the right to avoid unnecessary segregation. See also this blog entry.
  29. With respect to effective communication, HHS adopts DOJ’s title II effective communication rules. Of particular importance, is that HHS adopts the primary consideration rule of title II.
  30. With respect to web and mobile phone accessibility, HHS adopts the DOJ final regulation on title II of the ADA, which we discussed here.
  31. Medical diagnostic equipment must be accessible to people with disabilities. I know people who have been working on this issue for years. It is a real game changer for persons with disabilities.
  32. With respect to medical diagnostic equipment, no qualified individual with a disability shall, on the basis of disability (causation concerns again), be excluded from participation in, be denied the benefits of the programs or activities of recipient offered through or with the use of medical diagnostic equipment because the recipient’s medical diagnostic equipment is not readily accessible to or usable by persons with disabilities.
  33. Medical diagnostic equipment purchased, leased, or otherwise acquired after 60 days after the final rule has to meet the standard for accessible medical diagnostic equipment unless and until the recipient satisfies the scoping requirements.
  34. By scoping requirements, at least 10% of the total number of medical diagnostic equipment, but not fewer than one unit, of the type of equipment in use must meet the standards for accessible medical diagnostic equipment. If the provider focuses on mobility, then the number rises to 20%. Within two years after the final rule gets published, recipients must purchase, lease, or otherwise acquire at least one examination table meeting the standard for accessible medical diagnostic equipment if the recipient uses at least one examination table. They also must acquire at least one weight scale meeting the standard for accessible medical diagnostic equipment if the recipient uses at least one weight scale. With respect to medical diagnostic equipment, HHS adopts a program accessibility approach to existing medical diagnostic equipment.
  35. Throughout the final regulation, if the recipient decided to argue a fundamental alteration or an undue burden, they have to do everything short of that. Also, HHS adopts the DOJ title II final implementing regulations requiring certification from the head of a recipient or their designee after considering all resources available for use in the funding and operation of the program or activity and accompanied by a written statement of the reasons for reaching that conclusion.
  36. U.S. Access Board is coming up with regulation dealing with kiosks and HHS will defer to them. The final regulations have a general nondiscrimination statement with respect to kiosks.

 

II

What Changed

 

  1. Architectural accessibility means using the 2010 ADAAG standards. For what is an alteration, see this blog entry.
  2. Lease renewals are also subject to medical diagnostic equipment accessibility standards.
  3. The final rule replaced the phrase “emotional or mental illness,” with “mental health condition.” It also replaces the phrase “emotional illness,” with “mental health condition.” This should not be a surprise to those who read my thoughts/takeaways section on the proposed rule.
  4. Several changes were made to bring web related accessibility concerns in line with the DOJ final rule on web accessibility and mobile applications for title II entities.
  5. Most integrated setting means a setting providing individuals with disabilities the opportunity to interact with nondisabled person to the fullest extent possible.
  6. 508 standards mean the standard for information and communication technologies found at 36 C.F.R. Part 1194 by the US Access Board per their authority.
  7. “Operates a general hospital or outpatient facility,” is replaced with “operates a healthcare facility.”
  8. Adopts the term, “substance use disorder.”
  9. Replaces “suffering from a medical condition, with “has a medical condition.”
  10. Circumstances in which the recipient has a legitimate, nondiscriminatory reason for denying or limiting a service or where the disability renders the individual not qualify for the treatment may include circumstances in which the recipient typically declines to provide the treatment to any individual, or reasonably determined based on current medical knowledge or the best available objective evidence that such medical treatment is not clinically appropriate for particular individual.
  11. All services offered or provided by a child welfare entity are covered.
  12. Recipients of federal funds may not, “require children, on the basis of disability, to be placed outside the family home through custody relinquishment, voluntary placement, or other forfeiture of parental rights in order to receive necessary services.”
  13. Evaluations and risk assessments must be tailored to assess parenting capabilities and support needs, rather than the disability itself.
  14. A recipient of federal funds must also ensure that test, assessment, and other evaluation tools and materials used for the purpose of assessing or evaluating parental ability are based upon evidence or research, are conducted by a qualified professional, and are tailored to assess actual parenting ability in specific areas of disability -related needs.
  15. Parenting evaluations must be fully accessible to people with disabilities and cannot be based upon a single general intelligence quotient or manager of the person’s disability, rather than their parenting ability.
  16. Assessments of parents or children must be individualized and based upon the best available objective evidence.
  17. Perfectly okay to discriminate based upon the current illegal use of drugs. As mentioned above, what current illegal use of drugs means is far from clear. See this blog entry for example.
  18. Recipients must administer a program or activity in the most integrated setting appropriate to the needs of a qualified person with the disability. The integrated setting requirement extends to congregate setting populated primarily by individuals with disabilities, and may be characterized by regimentation and daily activities, lack of privacy or autonomy, or policies or practices limiting visitors or limiting individuals ability to engage freely in community activities and to manage their own activities of daily living.
  19. Effective communication rules (the primary consideration rule is adopted), apply regardless of size of the entity receiving federal funds.
  20. With respect to the web and mobile apps, the rule adds language that a recipient cannot discriminate directly or through contractual, licensing, or other arrangements. Language also added making sure that the obligation to make website and mobile apps accessible is a continuing obligation.
  21. Language added clarifying that the exception for accessibility does not apply where a third-party is posting on behalf of the recipient due to contractual, licensing, or other arrangements.
  22. With respect to requirement for web and mobile accessibility, WCAG 2.1 level AA is the standard. The key is compliance and not “full compliance,” as it was stated in the proposed rule.
  23. A recipient not in compliance with the web accessibility and mobile app rule does have a defense if they can demonstrate that the noncompliance has a minimal impact on access. Whether there is a minimal impact on access, depends on whether the noncompliance affects the ability of individuals with disabilities to access the same information, engage in the same interaction, conduct the same transaction, and otherwise participate in or benefit from the same programs and activities with substantially equivalent timelines, privacy, independence, and ease of use.

 

III

Thoughts/Takeaways

 

  1. The ADA is a nondelegable duty!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
  2. The HHS final regulations with respect to web accessibility and mobile app accessibility matches up with the DOJ title II regulations on the same topic, which we discussed here.
  3. I will be very interested to see if the final regulation dealing with what noncompliance means with respect to web accessibility and mobile apps (i.e. minimal impact on access and how to go about thinking about that), makes its way into website litigation case law.
  4. HHS says that removing the phrase “full compliance,” and replacing it with “compliance,” doesn’t change the meaning. However, I think that change is very significant. In the title III architectural barriers area, the ADAAG is essentially a strict liability statute. By making this change in the wording, HHS is making it clear that WCAG 2.1 level AA is not a strict liability statute in all situations. They do the same with respect to discussing how noncompliance is okay if there is a minimal impact on access.
  5. Causation is still a mess. §504 is quite clear that the causation standard is “solely by reason of.” As we know from our discussion in Bostock, solely by reason of must emphatically have a different meaning than “on the basis of,” “by reason of,” or even, “because of.” The statute couldn’t be more plain. As a result, the HHS final regulations most likely go too far with respect to causation when it uses other language besides, “solely by reason of,” when discussing causation.
  6. The added language dealing with integrated settings is very much an implicit shot at sheltered workshops.
  7. The accessibility standards for medical equipment also applies to lease renewals.
  8. Direct threat concepts is expanded into other areas so as to require individualized assessments based on the actual facts.
  9. There is a difference between ADAAG and Americans with Disabilities Act Architectural Standards. The standards are ADAAG provisions approved by DOJ. ADAAG is what is put out by the Architectural Access Board. The two are very close though not identical. I’m not sure I understand the HHS focus on standards v. the guidelines.

 

Before getting started on the blog entry of the day, I will be out of town not this week, but the week after this week. So, I am not sure if I will get a blog entry up for the next week. I would have to do it next Sunday, but I will also be out of town the end of this week as well. So, don’t be surprised if there is no blog entry for next week.

 

Turning to the blog entry for this week, it is a published decision from the Ninth Circuit decided on April 22, 2024. The case is Mattioda v. Clarence William Nelson II and NASA, here. The case asks the question of whether hostile work environment claims are viable under the Rehabilitation Act and under the ADA. The Ninth Circuit says they are. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning that summary judgment should not have been granted on plaintiff’s hostile work environment claim; court’s reasoning that summary judgment was properly granted on the disability discrimination claim; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

Dr. Mattioda began working for NASA in 2000. He suffers from, among other things, a degenerative defect in his hips and Scheurermann’s disease of the spine, which causes uneven vertebrae growth and scoliosis. Since 2007, his orthopedist has written reasonable-accommodation letters stating that Dr. Mattioda must fly in premium class for flights longer than an hour because he needs to avoid prolonged sitting and be able to change positions frequently and stretch due to physical disabilities affecting his hips and spine. By 2011, after multiple surgeries, Dr. Mattioda had informed the NASA Ames Research Center, where he worked, about all his disabilities and orthopedic limitations. Thereafter, from 2011 to 2018, Dr. Mattioda’s experience at NASA was plagued by: (a) derogatory comments from his supervisors; (b) supervisors who inhibited his work opportunities; (c) unwarranted negative job reviews; and (d) resistance to his accommodation requests. In 2011, Dr. Mattioda approached his supervisor, Dr. Timothy Lee, about an upcoming work trip and advised Dr. Lee of his physical disabilities and premium-class travel request. After Dr. Lee learned of the cost for the requested travel upgrade, he “openly discussed” Dr. Mattioda in front of others, “compared [his] disabilities to Dr. Lee’s own hip issues,” and asked why Dr. Mattioda could not “just tough it out or suck it up and travel coach.”

 

After that, a series of harassing comments and events just continued even further. Those events included openly criticizing the plaintiff to others, inhibiting the plaintiff’s work opportunities, making it clear that his reasonable accommodation requests would only happen if he paid for them himself, mishandling performance reviews, disclosing his disabilities and EEO activity to other employees, and transferring him to a different division in order, “to help calm the waters and to provide [plaintiff] with a safe space.” He was also denied a promotion. With respect to the promotion, the defense defended on the grounds that the person they hired was more qualified than the plaintiff because he had significantly more experience and publications than the plaintiff. Also, the new hire’s publications were the first in a novel field.

 

The court granted summary judgment as to all claims except for those involving his negative performance reviews. The negative performance reviews claim ultimately settled. Plaintiff appealed the summary judgment grant on the hostile work environment claim and on the disability discrimination claim.

 

II

Court’s Reasoning That Summary Judgment Should Not Have Been Granted on Plaintiff’s Hostile Work Environment Claim

 

  1. The weight of authority supports concluding that a plaintiff can bring a disability-based harassment claim under the ADA and therefore necessarily under Rehabilitation Act, because every circuit to have addressed the issue has concluded as much.
  2. It is well established that a plaintiff can bring a hostile work environment claim under Title VII.
  3. As the Seventh Circuit, in a case we discussed here, noted, a hostile work environment claim must also be available under the ADA because Congress wrote the ADA using the language of Title VII.
  4. The Fifth Circuit similarly reasoned that because the ADA and Title VII use almost identical language and are also alike in their purposes and remedial structures, the ADA also provides a cause of action for disability-based harassment. In particular, they said that it was clear after review of the ADA’s language, purpose, and remedial framework, that Congress’s intent in enacting the ADA was to eradicate disability-based harassment in the workplace. They further observed that the Supreme Court has construed Title VII, which has nearly identical language to the ADA, to provide a cause of action for harassment when it is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive environment since it affects the terms, conditions, or privileges of employment.
  5. The Fifth Circuit and Seventh Circuit reasoning is sound, so hostile work environment claims are viable under the ADA.
  6. Since the Rehabilitation Act is materially identical to and the model for the ADA, hostile work environment claims are viable under the Rehabilitation Act.
  7. To plead a plausible hostile work environment claim, a plaintiff has to allege that: 1) he was subjected to harassment because of his disability; and 2) that the harassing conduct was sufficiently severe or pervasive to alter the conditions of his employment and create an abusive work environment.
  8. When it comes to assessing complaints, Iqbal/Twombly is the standard that gets used. Even using that standard, plaintiff’s hostile work environment claims can go forward. The lower court in analyzing the complaint using the Iqbal/Twombly standard made a series of mistakes. First, it did not construe well pleaded allegations in plaintiff’s favor. Second, if failed to acknowledge plaintiff’s allegation that a series harassing comment began after the employer was informed of his disabilities. Third, the court ignored allegations linking the allegedly harassing conduct to his disability, such as nondisabled researchers being treated better than the plaintiff was.
  9. While a close call, plaintiff sufficiently alleged that the conduct was sufficiently severe or pervasive.
  10. When it comes to sufficiently severe or pervasive conduct, that conduct must be both subjectively and objectively abusive. Objective hostility is assessed by looking at the totality of the circumstances through the lens of a reasonable person with the same protected characteristic. Here, plaintiff alleges that his employer inhibited work opportunities and repeatedly made harassing derogatory comments over a period of years and listed several specific examples. They also alleged his employer threatened his job, demeaned him by making him sign a letter acknowledging a refusal by his employer to reconsider his poor performance rating, and made insulting comments about his reasonable accommodation requests and job performance. As such, plaintiff had created a question of fact for the jury to decide.

 

III

Court’s Reasoning That Summary Judgment Was Properly Granted on the Disability Discrimination Claim

 

  1. Both parties agree that the district court correctly used the McDonnell Douglas burden shifting framework in assessing the motion for summary judgment.
  2. Even assuming, as the District Court did, that plaintiff established a prima facie case of disability discrimination, plaintiff repeatedly conceded that the nondiscriminatory reason for not selecting him for the position was a valid reason. In particular, the person ultimately selected was more qualified for that position. There is also no evidence that the technical excellence criteria utilized by the selection panel was invented to discriminate against the plaintiff based on his disability.

 

IV

Thoughts/Takeaways

 

  1. The Ninth Circuit in this published decision joins the overwhelming trend of authority that hostile work environment claims are viable under both the ADA and the Rehabilitation Act.
  2. The court notes that whether conduct is sufficiently severe or pervasive must be viewed from the perspective of the person with a protected characteristic. Even so, one can see how “sufficiently severe or pervasive,” is often in the eyes of the beholder. For example, it won’t surprise my readers, that I didn’t see this fact pattern as a close call. However, the court did. We discussed previously in this blog entry, that there may be a whole different approach to hostile work environment claim that might be worth considering.
  3. On the plaintiff’s side, always put in enough facts to make sure that everybody knows precisely what is going on because Iqbal/Twombly is definitely something that plaintiffs always have to worry about.
  4. Trial courts on summary judgment, are supposed to construe the facts in favor of the nonmoving party. However, what that means can vary considerably from judge to judge.
  5. Why did both parties agree that McDonnell Douglas was the proper standard to analyze the summary judgment motion? I don’t know the answer to that because alternatives, such as the convincing mosaic standard which we discussed here, most certainly exist.
  6. Hostile work environment and disability discrimination are two different causes of action. So, here the plaintiff gets to go forward on his hostile work environment claim but his disability discrimination claim gets tossed out because NASA successfully defended on the grounds that the person hired was more qualified than the plaintiff.
  7. To my mind, insisting that an employee or any person with a disability pay for their own reasonable accommodations is per se evidence of a hostile work environment. Any entity insisting on a person with a disability paying for their own accommodations/modifications is asking for litigation they very well will lose.