Today’s case of the day deals with two questions. First, just how does association standing work? Second, what is the burden of proof when it comes to figuring out whether something is readily achievable per title III of the ADA?

 

The case is Schalamar Creek Mobile Homeowners Association, Inc. v. Adler decided by the 11th Circuit on May 7, 2021, here185188199200. It is an unpublished decision. So, check your jurisdiction on how persuasive the decision might be. As usual the blog entry is divided into categories, and they are: facts; association standing; burden of proof readily achievable; and thought/takeaways. Of course, the reader is free to focus on any or all of the sections.

 

I

Facts

 

Schalamar Creek is a mobile home community located in Polk County, Florida, designed for adults fifty-five or older. Like many mobile home parks, Schalamar Creek offers amenities for its residents. It has a golf course, a driving range, several pools, a lounge, and a clubhouse. The clubhouse, built in 1989, is a three-story building with its own amenities. There is a restaurant on the first floor. On the second floor, there is a large event space and a bank. The rent deposit box is also located on the second floor. The third floor houses offices for Schalamar Creek’s management. The golf course, driving range, restaurant, bank, and lounge are open to the public.

 

Plaintiff’s filed a RICO claim as well as an ADA claim. We are not going to worry about the RICO claim, which takes up a large part of the opinion. Instead, we are going to focus on the ADA side. The defendants argued that the homeowners association (HOA) did not have standing. They also argued that the HOA did not meet its burden of proof with respect to readily achievable. Therefore, the summary judgment for the defense should stand.

 

The 11th Circuit, as discussed below, winds up disagreeing with the lower court on standing but agreeing with the lower court on the burden of proof of readily achievable not being satisfied by the plaintiff.

 

II

Association Standing

 

  1. An association has standing to bring suit on behalf of its members when: 1) its members otherwise have standing to sue in their own right; 2) the interests at stake are germane to the organization’s purpose; and 3) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.
  2. In the 11th Circuit, organizational plaintiff’s only have to establish that at least one member faces a realistic danger of suffering an injury.
  3. The ADA confers on any person the right to be free from discrimination on the basis of disability with respect to the full and equal enjoyment of facilities. That right is violated when an individual encounters architectural barriers that discriminate against him on the basis of his or her disability. So, an individual encountering architectural barriers has suffered injury precisely in the form the statute was intended to guard against.
  4. Several members of the HOA are persons with disabilities who testified they had difficulty accessing the common areas due to their disabilities.
  5. The HOA also specifically identified barriers at the clubhouse that made it inaccessible to residents with mobility, balance, gait, vision, and hearing difficulties, including by way of example the lack of an elevator and inaccessible configuration of the clubhouse bathrooms.
  6. Whether the claim is germane to the Association is an undemanding standard that simply requires mere pertinence between the litigation at issue and the organization’s purpose.
  7. Florida Rules of Civil Procedure 1.222 gives the HOA the authority to act as a class representative and bring suits in the name and on behalf of all Association members concerning matters of common interest of its members. Common interest to the members include such things as common property and structural components of a building or other improvements.
  8. Florida law also designate the HOA as the representative of all the mobile homeowners in all matters relating to the mobile home act regardless of whether the homeowner is a member of the Association.
  9. Residence of the mobile home park have an interest in making sure that the clubhouse is accessible and compliant with the ADA.
  10. The Florida mobile home act give the HOA the right input to institute certain claims when only a majority of members vote in favor and does not require complete commonality.

 

II

Burden of Proof Readily Achievable

 

  1. When it comes to the burden of proof for figuring out whether something is readily achievable in the 11th Circuit, it works like this: 1) plaintiff has the initial burden of production to show that an architectural barrier exists and that the proposed method of architectural barrier removal is readily achievable, i.e. easily accomplishable and able to be carried out with much difficulty or expense; 2) plaintiff must present sufficient evidence so that a defendant can evaluate the proposed solution to a barrier, the difficulty of accomplishing it, the costs of implementation, and the economic operation of the facility; and 3) once plaintiff has met its burden of production, it is the defendant with the burden of persuasion.
  2. The clubhouse predates the ADA. Although the complaint identified deficiencies with the clubhouse, the HOA presented no summary judgment evidence that any of the proposed modification were readily achievable. Instead, the HOA chose to rely on the allegations in the complaint.
  3. The HOA did not put forth any specific evidence about the feasibility of their proposals, the estimated costs associated with them, or the defendant’s ability to pay those costs.

 

III

Thoughts/Takeaways

 

  1. From reading this case, Association standing does not appear to be all that difficult to obtain in the 11th Circuit.   
  2. Whether a claim is germane to the Association is not a demanding one.
  3. The leading case on proving up readily achievable is Colorado Cross Disability Coalition v. Hermanson Family, here186189200201. That case has been cited over 142 times. You want to check your jurisdiction because how that case plays out varies from place to place. For example, we discussed the way one jurisdiction looked at that case in a previous blog entry, here187190201202.
  4. All the cases agree that readily achievable is an affirmative defense. That is, the defendant has the burden of persuasion. However, it is the plaintiff with the burden of production. What that burden of production is will also vary from place to place. You do want to check out the concurring and dissenting opinion in the Colorado Cross Disability Coalition v. Hermanson Family case, especially if you are on the plaintiff’s side.
  5. This was an unpublished decision.
  6. This is also a summary judgment case and not a motion to dismiss. The distinction is important because there is a difference between what might get by a motion to dismiss and what gets by summary judgment. After reading this case, the question in my mind is whether the two will not bleed together. That is, will courts start requiring greater specificity with respect to any costs of fixing the architectural barriers when considering a motion to dismiss? They just might because these things do bleed into each other oftentimes.
  7. Assuming you can get by a motion to dismiss if you are on the plaintiff side, you definitely want to hire an accessibility specialist (Texas and California actually have certification for such specialists), to evaluate the property. Make sure that accessibility specialist discusses what it would cost to fix the architectural barriers. On the defense side, you are going to want to read this blog entry188191202203. You also going to want to hire an accessibility specialist as well as knowledgeable ADA legal counsel to help sort out just what are your legal obligations with respect to fixing the architectural barriers, which will likely mean certain barriers that you’re going to want to fix right away and other barriers that can be prioritized. Knowledgeable ADA counsel can help you figure out which of the barriers must be fixed right away and which can be prioritized.
  8. On the plaintiff side, there are strategies you can use to make your burden of production easier. For example, you can ask the defense in an interrogatory if they plan to use an undue burden and/or readily achievable defense. If so, ask them to supply their financials. That puts them in the box of having to reveal their financials if they are going to go with the readily achievable and/or undue burden defense. Remember, the readily achievable defense only applies to existing facilities and portions thereof that were built before the ADA went into effect. The number of such facilities is of course decreasing all the time considering the years that have gone by since the ADA was enacted. Circuit

Today’s blog entry deals with the question of what happens when an employer demands that an employee move to a different job without evaluating or completely assessing whether that employee is capable of performing his or her current job’s essential functions with or without reasonable accommodations. The answer to the question says the Fourth Circuit in Wirtes v. City of Newport News18618619620367207, a published opinion decided April 30, 2021, is that the employee survives summary judgment. This case is different than the usual reassignment situation where the person wants to be reassigned and the employer resists. Here, the employee did not want to be reassigned, claimed he could do the essential functions of the job with reasonable accommodations, and had no choice but to leave the employment because the employer insisted on the reassignment. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning that an employer must explore all options prior to insisting on reassignment; and thoughts/takeaways. Of course, the reader is free to concentrate on any or all of the categories.

 

I

Facts

 

The facts can be condensed quite a bit. In short, what happened here is that you have a police officer that developed a condition as a result of wearing a duty belt they have to wear on their waist. In the end, instead of fully assessing whether the police officer could do the essential functions of his job with or without reasonable accommodations, the employer demanded that the police officer be reassigned to a non-detective position. At first, he accepted the position. However, he then reconsidered, retired, and then sued for disability discrimination, including failure to accommodate. He loses on summary judgment and appeals.

 

II

Court’s Reasoning that an Employer Must Explore All Options Prior to Insisting on Reassignment

 

  1. The ADA requires employers to make reasonable accommodations to the known physical or mental limitations of an otherwise qualified employee with a disability.
  2. An employee is qualified if they can perform the essential functions of the employment position they hold or desire with or without reasonable accommodations.
  3. A prima facie case for failure to accommodate under the ADA involves showing: 1) the person is an individual with a disability under the ADA; 2) the employer had notice of the disability; 3) the individual could perform the essential functions of the position with reasonable accommodations; and 4) the employer refused to make such an accommodation.
  4. In a footnote, the Fourth Circuit said evaluating an employee’s physical issues is not a reasonable accommodation. Instead, reasonable accommodation, per 29 C.F.R. §1630.218718719720468208(o), refers to modifications or adjustment to the work environment that enables an individual with a disability who is qualified to perform the essential functions of that position to stay in that position. So, the only plausible accommodation cited by the district court was the City’s offer to reassign the plaintiff to a position as a logistics manager.
  5. In another footnote, the Fourth Circuit said that it was error for the district court to not explicitly find what the essential functions of plaintiff’s desired position were or that there were no other reasonable accommodations available so that transfer was the only viable option. In this same footnote, the court goes on to say that the practical effect of the ruling is when an employer decides to accommodate an employee by reassigning them, district courts need to consider whether other reasonable accommodations exist that permit the employee to perform the essential functions of their current position with reasonable accommodations. As such, that inquiry will require district courts to consider what the essential functions of the position are before jumping to whether the employee was properly accommodated.
  6. Reassignment is the ADA’s accommodation of last resort and such a view is supported by both the EEOC and case law.
  7. The EEOC has long advised that before considering reassignment as a reasonable accommodation, employers should first consider those accommodations enable an employee to remain in his or her current position.
  8. The EEOC has explicitly said that reassignment is the reasonable accommodation of last resort and is required only after it has been determined: 1) there are no effective accommodations enabling the employee to perform the essential functions of his or her current position; or 2) all other reasonable accommodations impose an undue hardship on the employer.
  9. The undue hardship standard has been adopted by several circuit courts to explain that an employer can reassign an employee with a disability at the employee’s request where any other reasonable accommodation poses an undue hardship to the employer.
  10. In a footnote, the court cited to an 8th Circuit case holding that the very prospect of reassignment does not even arise unless accommodation within the individual’s current position poses an undue hardship.
  11. Treating reassignment as a last among equals respects the core values underlying the ADA and employment law more generally.
  12. The ADA’s treatment of reassignment as a last among equals accommodation is a situation where employers, employees with disabilities, and the coworkers of employees with disabilities all win. That is, allowing other reasonable forms of accommodation to take precedence over reassignment prevents either the employer or the employee with a disability from unilaterally insisting upon reassignment to a vacant position. It also helps employers by protecting their discretion over hiring for the open spot. It helps employees by keeping them in their present job rather than forcing them into an unfamiliar position. It also protects the employee with a disability coworkers by both during their confidence that the misfortune of a colleague does not unfairly deprive them of opportunities for which they themselves have worked for. So, reassignment is something that should be held in reserve for unusual circumstances.
  13. Reassignment is a disfavored accommodation that employers are generally under no obligation to offer.
  14. Every Circuit (Seventh, Third, Tenth, D.C.), that has considered the question of whether reassignment to a vacant position is permissible when the employee wishes to stay in their current position and can perform the essential functions of that position with reasonable accommodations has concluded that the employer has failed to accommodate an otherwise qualified employee.
  15. It does not appear that any circuit court has treated transferring the employee wishing to remain in their current position who was qualified to do so as being a reasonable accommodation.
  16. Reassignment is strongly disfavored when an employee can still do their current job with the assistance of a reasonable accommodation.

 

III

Thoughts/Takeaways

 

  1. In my view, what the court says about why the accommodation of reassignment is a last resort makes a great deal of sense. In fact, to me it makes so much sense that I don’t expect to see a circuit court split on the issue of whether reassignment is a last resort or not.
  2. Interactive process interactive process interactive process. Be sure to get it right as we discussed here18818819820569209.
  3. How do you go about figuring out what are the essential functions of the job? You can start with job descriptions. Be sure to talk to people who actually do the job. Make sure you get with legal counsel to make sure that the job description is not screening out people with disabilities. Finally, make sure you have some kind of system to periodically check on the particular job’s essential functions. Jobs always evolve over time and essential functions are not static. By way of analogy, you might look at this blog entry as well18918919920670210.
  4. It makes good business sense to exhaust all possibilities with the current job before reassigning a person to another job. The employee would be more motivated to stay in that job, knows the job already, and no need to retrain.
  5. Remember you have to make reasonable accommodations unless there is an undue hardship (logistical or financial, both of which are hard to show).
  6. In the Fourth Circuit, failure to accommodate is a separate cause of action.
  7. Don’t forget about the Job Accommodation Network. They are a great resource for working out difficult reasonable accommodation situations.
  8. I personally prefer the Rehabilitation Act term “otherwise qualified,” over the ADAAA term “qualified,” because the former is more clearly a term of art. The court actually uses both terms interchangeably in its decision.

This is a two hours CLE that I am doing next week. The CLE is being offered through the Georgia bar. They are only doing the CLE for Georgia. So you are on your own with respect to CLE in your own state. If you are not seeking Georgia CLE credit, just put n/a in the CLE box. The CLE is divided into two hours. The first hour will be talking about how the Airline Deregulation Act,, the Air Carrier Access Act, the ADA, and state negligence laws all bounce into each other. The second hour, we will be talking about animals on planes in the latest final rule from the DOT. Hope you can join us. And yes, there are two laws involved here with the acronym ADA; I did a double take when I first got into this:-) to

 

 

 

 

*REMINDER* Aviation Law Section | Upcoming CLE

 

Section Members:

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

Topic: The Intersection between the Airline Deregulation Act, the Air Carrier Access Act, the Americans with Disabilities Act and State Negligence Law and Commercial Airline Travel

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

CLE: 2 hours of trial CLE credit have been approved for this event.

The Aviation Law Section of the State Bar of Georgia will sponsor a two hour webinar featuring William Goren and chaired by Alan Armstrong, dealing with the intersection of the law as it relates to the Airline Deregulation Act, Americans with Disabilities Act (“ADA”), Air Carrier Access Act, state negligence laws and the duties and obligations of air carriers holding certificates of authority to engage transportation by air under Part 121 of the Federal Aviation Regulations. The second hour of the presentation will be devoted to understanding the DOT final rule pertaining to animals on planes and how those rules compare to the ADA rules.  Mr. Goren has extensive experience in these areas and brings a wealth of knowledge relating to this timely and interesting topic. This event is free and materials will be emailed prior to the event.

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

Click here185 to register. Please note, you must register prior to the day of the event. After registering, Zoom will email the information needed to join the day of the webinar. If you are not a member of the State Bar of Georgia, please enter “N/A” when asked for your Bar number during the registration process.

Alan Armstrong, Chair
Aviation Law Section
State Bar of Georgia

 

I would say about 10% of my blog entries deal with ADA related nondiscrimination laws and concepts but not the ADA itself, including such things as the Fair Housing Act, Air Carrier Access Act, and constitutional law. Occasionally, we throw in a state law as well. Today is another one of those, the, Affordable Care Act (ACA), which I have not blogged on before. A recent case from the Second Circuit reveals that the ACA is another arrow in the quiver of a plaintiff’s attorney alleging that a healthcare entity did not provide effective communication. It also has a four year statute of limitations. The case of the day is Vega-Ruiz v. Northwell Health185205212, an unpublished per curiam decision decided by the Second Circuit on March 24, 2021. As usual the blog entry is divided into categories and they are: facts; court’s reasoning statute of limitations is four years; court’s reasoning primary consideration rule; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

Plaintiff is profoundly deaf woman with limited English proficiency and limited ability to read lips. On October 13, 2015, she accompanied her brother to Long Island Jewish Valley Stream, a facility operated by Northwell Health, as his health care proxy for his scheduled surgery. During her brother’s visit, she requested an ASL interpreter in order to fulfill her duties as a proxy. Instead, Northwell provided a Spanish language interpreter who communicated to the plaintiff through written notes and lip reading. Three years and three months later, plaintiff filed a complaint against defendants alleging disability discrimination under the ACA, 42 U.S.C. §18116186206213(a). The District Court threw out the claim as being untimely concluding that the claim was in effect a Rehabilitation Act claim so the New York’s three year statute of limitation period for personal injury actions applied.

 

II

Court’s Reasoning Statute of Limitations Is Four Years

 

  1. Before Congress enacted 28 U.S.C. §1658187207214, if a federal statute lacked a limitation period the federal courts looked to the most appropriate or analogous state statute of limitations.
  2. The Rehabilitation Act lacks an express statute of limitations. So, courts apply the limitation period of a state’s personal injury laws.
  3. In 1990, Congress enacted §1658 to simplify the arduous task of determining which limitation period applies to an act of Congress not containing a statute of limitations.
  4. Under §1658, Congress created a uniform federal statute of limitations applying when a federal statute fails to set its own limitation periods. §1658 provides a four-year catchall limitation period for claims arising under acts of Congress in effect after December 1, 1990 that do not specify a statute of limitations.
  5. In a footnote, the court noted that the practice of borrowing various state statute of limitations created a number of practical problems, including: obligating judges and lawyers to determine the most analogous state law claims; imposing uncertainty on litigants; and creating a situation where reliance on varying state laws results in undesirable variance among the federal courts and disrupts the development of federal doctrine on the suspension of limitation periods.
  6. The United States Supreme Court has concluded that §1658’s four year statute of limitation applies just as much to an amendment to an existing statute as it does to a new stand-alone statute. With respect to any amendment, what matters is the substantive effect of an enactment. The key is the creation of new rights of action and corresponding liabilities and not the format in which it appears in the code. In other words, the four-year statute of limitation applies if the plaintiff’s claim against the defendant was made possible by a post 1990 enactment.
  7. A plaintiff bringing a claim under the ACA presents a different case than a plaintiff alleging the same harm under the Rehabilitation Act.
  8. Northwell’s argument that §1658 needs to be construed narrowly is superseded by the Supreme Court, which has held that a narrow reading of “arising under,” subverts Congress’s goal by restricting §1658 the cases in which the plaintiff’s cause of action is based solely on a post 1990 statute establishing a new cause of action without reference to pre-existing law.
  9. Congress when enacting §1658 sought to avoid the precise situation of trying to untangle competing statutes of limitations where the federal statute on which plaintiff’s claim is based lacks its own limitation period.
  10. Plaintiff’s disability claim is made possible by the ACA because the ACA changed Northwell’s obligation by subjecting them to the “primary consideration,” obligation when it had previously been subjected to the lesser “encouraged to consult,” obligation. Accordingly, §1658 applies and the four-year statute of limitations is the applicable statute. Since only 3 ½ years transpired before filing the claim from the incident, plaintiff claim is timely.

 

III

Primary Consideration Rule

 

  1. The ADA creates a different set of standards for public entities under title II than for places of public accommodations under title III when it comes to effective communications.
  2. Under title II’s final implementing regulation, 28 C.F.R. §35.160188208215(b)(2), a public entity has to give primary consideration to the kind of aid requested by a person with a communication disability, though the type of auxiliary aid or service necessary to ensure effective communication varies in accordance with the method of communication used by the individual. Giving primary consideration mean that a title II entity has to honor the person’s choice unless it can demonstrate that another equally effective means of communication is available, or that the use of the means chosen would result in a fundamental alteration or in an undue burden.
  3. Under title III’s final implementing regulation, 28 C.F.R. §36.303189209216(c)(1)(ii), places of public accommodations are only encouraged to consult with the person with a disability to discuss what aid or service is appropriate. Title III entities are not obligated to honor an individual’s choice of aid.
  4. The Department of Justice has said that strongly encouraging consultation with persons with disabilities in lieu of mandating primary consideration of their expressed choice is consistent with congressional intent with respect to title III of the ADA.
  5. The ACA diverged from the Rehabilitation Act because the ACA does not distinguish between title II public entities and title III places of public accommodations. Instead, the ACA applies title II requirements to all defendants. In particular, 45 C.F.R. §92.102190210217(a) provides, “any entity operating or administering a program or activity under this part shall take appropriate steps to ensure that communication with individuals with disabilities are as effective as communication with others and subprograms or activities in accordance with the standards found that 28 C.F.R. 35.160 through 35.164.” In other words, the ACA extends primary consideration to individuals seeking services at title III places of public accommodations.
  6. In a footnote, court notes that the remedies for violating the ACA are tied into the remedies for violating the Rehabilitation Act, 42 U.S.C. §18116191211218(a). Those remedies include: allowing a person discriminated against to seek injunctive relief, damages, etc.; giving the Atty. Gen. the power to investigate claims and undertake periodic compliance reviews, and allowing private parties or the Atty. Gen. or both to bring civil suits (42 U.S.C. §12133192212219, 42 U.S.C. §12188193213220).
  7. In a footnote, the court said that at the time of the discrimination proposed rules regarding the change in standard applying to disability discrimination claim under the ACA existed. Although those rules were amended in August 2020, the relevant rules to this appeal were not substantively changed.

 

IV

Thoughts/Takeaways

 

  1. The issue of the four-year statute of limitations is something that we have discussed previously, such as here194214221. The key question is whether new rights were created after December 1 of 1990. With respect to the ADA, most of the time new rights were not created. However, in some cases you could argue that there were new rights created by the amendments to the ADA. For example, under the amendments to the ADA you can no longer consider mitigating measures when it comes to deciding whether a person has a disability. The amendments to the ADA expanded the ADA’s definitional terms, such as but not limited to what is a major life activity. So, it is possible that a person may have been given new rights depending upon the major life activity that they have and/or their use of mitigating measures. I don’t believe there are many situations where the amendments created new rights rather than clarifications, but some such situations may well exist.
  2. The practical problems for figuring out a statute of limitations for a federal claim are every bit what the court notes in one of its footnotes. For example, states don’t always agree that the personal injury statute of limitations is what applies. Sometimes, a court will find that the disability nondiscrimination statute of limitation applies. The various statute of limitations can range all over the place with respect to their time frame.
  3. The Rehabilitation Act does not follow the primary consideration rule. However as we have discussed here195215222, case law does exist saying that anything that hinders effective communication is not effective communication under the Rehabilitation Act. Admittedly, courts are taking various views on what that means as we discussed in this blog entry196216223. That said, is an effective communication case under the ACA really different than an effective communication case under the Rehabilitation Act? The standards of liability are different, but aren’t they in essence the same claim? That said, there can be no doubt that the ACA gives a person rights that did not previously exist before 1990. So, it makes sense that the four-year statute of limitation applies to ACA matters even if the court’s language is a bit ambiguous.
  4. Any entity subject to the ACA that does not go about effective communication with its customers/patient properly is likely to face an ACA cause of action. True, the company may also face ADA and Rehabilitation Act claims as well. However, the ACA allows the plaintiff to utilize the “primary consideration,” rule whereas the ADA and the Rehabilitation Act do not. Arguably, the primary consideration rule is even more broad than the “hinder communication,” principle established in Silva197217224, which we discussed here198218225. Any plaintiff attorney dealing with a defendant subject to the ACA and an effective communication claim strongly needs to consider adding the ACA claim.
  5. Since the remedies for the ACA are tied into the Rehabilitation Act, that means punitive damages are out under Barnes v. Gorman199219226.
  6. I don’t get how a Spanish language interpreter is an appropriate call for a person needing an ASL interpreter.
  7. This case is a per curiam unpublished decision and so its precedential value is limited, especially depending upon the jurisdiction. Nevertheless, the case does suggest one possibility where courts may be heading and so as a matter of preventive law. So, companies subject to the ACA may want to think about enacting policies and procedures reflecting the primary consideration approach rather than the consultation approach.

Today’s blog entry is an update on a prior blog entry where I discussed a District Court of New Hampshire decision saying that legislative immunity trumps everything, including the ADA. That case got appealed to the First Circuit. I was very flattered to learn that my blog entry discussing the decision holding that legislative immunity trumps everything was actually included as an appendix by the appellant/plaintiffs in the case in their appellate brief to the First Circuit. The First Circuit on April 8, 2021 vacated the decision218 and remanded for further proceedings. Let’s see how they got to that point. As usual, the blog entry is divided into categories and they are: additional facts; court’s reasoning; and thoughts/takeaways. The blog entry is pretty short, and so you will probably want to read all of it.

 

I

Additional Facts

 

The facts are laid out in my prior blog entry here184185197206206203. I do want to add that in the very first footnote of the decision the First Circuit explains some of the disabilities involved including: stage IV prostate cancer; compromised or suppressed immune system; cardiac problems; type II diabetes; Guillain-Barré syndrome; kidney disease; degenerative joint disease; asthma and other issues affecting lung capacity and function; and advanced age. At least one plaintiff lives in a communal facility that restricts residents from participating in events involving groups larger than 10 individuals, even when outside the community.

 

II

Court’s Reasoning

 

  1. Title II of the ADA at 42 U.S.C. §12132185186198207207204 provides that no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, program, or activities of a public entity, or be subjected to discrimination by any such entity.
  2. 42 U.S.C. §12131186187199208208205(1)(A)-(B) defines a public entity as including any State or local government or any instrumentality of the State or States or local government.
  3. 42 U.S.C. §12202187188200209209206 says that Congress’s imposition of obligations on state governments under title II may even trump 11th amendment immunity. The court also cites to Tennessee v. Lane188189201210210207 as well.
  4. 504 Rehabilitation Act, 29 U.S.C. §794189190202211211208(a), provides that no otherwise qualified individual with a disability shall, solely by reason of his or her disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal funds.
  5. Under the Rehabilitation Act, 29 U.S.C. §794190191203212212209(b)(1)(A)-(B), the term program or activity includes all of the operations of an instrumentality of the State or of a local government and of each State or local government entity to which federal assistance is extended.
  6. 504 requires a public entity to make reasonable modification to existing practices to accommodate persons with disabilities.
  7. Under the Rehabilitation Act, States waive immunity by receiving funds from a federal program.
  8. A statute may express a congressional intent sufficient to override a common law doctrine without expressly mentioning the doctrine. The key question is whether the statute as a whole makes it evident that Congress understood its mandate to control.
  9. Congress expressly said at 42 U.S.C. §12131191192204213213210(1)(A) that the requirements of the ADA apply to any State… Government.
  10. Not surprisingly, the Speaker of the New Hampshire House did not make any argument that the New Hampshire House of Representatives is not part of the New Hampshire state government.
  11. The mandates of the Rehabilitation Act apply to a state government as well.
  12. A State waves immunity under the Rehabilitation Act when it decides to accept federal program funds. Here, New Hampshire’s legislature has received at least $190,000 in federal funds from the Coronavirus Aid, Relief, and Economic SecuritiesAct. Those funds were provided to the legislature in order to cover Covid-19 related expenses, such as off-site sessions, subscription for videoconferencing technology, IT equipment for remote work, and sanitation.
  13. It is not persuasive that the fact the ADA expressly abrogates 11th amendment immunity by name but fails to include a similar mention of legislative immunity, means that legislative immunity trumps everything. That is because sovereign immunity is a more obvious impediment expressly enshrined in the Constitution. So one can easily see why Congress might expressly mention it, while relying otherwise on the broad statement applying the statute to state governments to abrogate any other asserted bar, including legislative immunity.
  14. Under both the ADA and the Rehabilitation Act, the decision whether to require an accommodation must balance the benefits of the accommodation against the legitimate interests of the affected entity.
  15. It can be reasonably expected that a federal court would give considered weight to the views of the state legislature when considering the reasonableness of any proposed accommodation affecting the conduct of that legislature.
  16. On return of the case back to the District Court, the District Court will have to consider the following: whether plaintiffs are persons with disabilities within the meaning of the ADA or the Rehabilitation Act; whether the ADA or the Rehabilitation Act or both has been violated and if so, what remedy or remedies should be provided; and to what extent changing circumstances may moot the plaintiffs claims.

 

III

Thoughts/Takeaways

 

  1. It never made any sense to me how legislative immunity could trump the field the way the District Court held that it did.
  2. Undoubtedly, the District Court will find that the plaintiffs are persons with disabilities under the ADA and the Rehabilitation Act, especially with the amendments to the ADA.
  3. Legislative immunity is not a get out of jail free card when it comes to complying with the ADA or to Rehabilitation Act.
  4. Whenever dealing with claims of sovereign immunity by a state entity, Tennessee v. Lane313214211 is a must read.
  5. An abrogation of sovereign immunity is also an abrogation of legislative immunity.
  6. Accepting federal funds waives sovereign immunity under the Rehabilitation Act.
  7. The Rehabilitation Act goes further than the ADA when it comes to title II because under the Rehabilitation Act all of the operation of an instrumentality of the state or of a local government must be meaningfully accessible to persons with disabilities. On the other hand, the ADA will often take you into the issue of program accessibility.
  8. Interactive process is very important and there really wasn’t much of it here, if at all. Assuming an interactive process does occur, what a state legislature comes up with would be given considerable weight. Even so, you still have to happen interactive process. Accommodations will have to be made unless a fundamental alteration or an undue burden exists, which in this context both will be difficult to show.
  9. Effective communication rules were not discussed in the opinion.
  10. Can the same arguments be made with respect to judicial immunity when a court does not grant accommodation to a litigant or someone associated with a litigant? Even if not, an argument can be made that the granting or not granting of an accommodation is not a judicial act but a clerical one. It will be interesting to see if this particular ruling expands to situations where a court fails to accommodate a person with a disability.
  11. On remand, it will be interesting to see whether the different causation standard for the ADA and the Rehabilitation Act will be an issue. See also this blog entry192193205214215212.

I do want to mention that if any of my blog entries are helpful to you on either side of the aisle with respect to a case you have, feel free to include the blog entry in an appendix to your brief as I don’t mind at all.

 

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

 

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

 

I

Where We Have Been with Respect to Internet Accessibility Cases

 

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

 

II

Majority Opinion (Judge Branch),  Introductory Facts and Standing

 

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

 

III

Majority Opinion Websites Are Not Places of Public Accommodations

 

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

IV

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

 

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

V

Dissenting Opinion (Judge Jill Pryor), ADA Generally

 

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

 

VI

Dissenting Opinion Accommodation Is Necessary

 

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

VII

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

 

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

 

VIII

 

Dissenting opinion Effective Communication Obligations Violated

 

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

 

X

Thoughts/Takeaways

 

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

 

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

 

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

 

I

Facts

 

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

 

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

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

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

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

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

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

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

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

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

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

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

II

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

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

III

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

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

IV

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

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

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

V

Thoughts/Takeaways

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

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

 

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

 

I

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

 

Huber Facts

 

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

 

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

 

II

Huber Reasoning

 

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

 

III

Huber Thoughts/Takeaways

 

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

 

 

Eccleston v. The City of Waterbury186186195202203203208205

 

IV

Eccleston Facts

 

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

 

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

 

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

 

V

Eccleston Court’s Reasoning

 

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

 

VI

 

Eccleston Thoughts/Takeaways

 

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

Airplane, Aircraft, Take Off, Flight

 

Colonel Johnny

 

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

Aviation Law Section | Upcoming CLE

Section Members:

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

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

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

CLE: 2 hours of trial CLE credit pending

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

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

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

Alan Armstrong, Chair
Aviation Law Section
State Bar of Georgia

 

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

 

I

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

 

II

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

 

III

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

 

IV

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

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