Colonel Johnny (my hearing dog while I practice virtually).

Today’s blog entry explores the following situation. A defendant was charged with multiple counts of aggravated criminal sexual abuse. The victim, R.L., of that abuse suffered posttraumatic stress disorder (PTSD), as a result. She testified at trial with a service dog. The defendant gets convicted and appeals saying that the trial court erred violated his rights by allowing R.L. to testify with her dog under the ADA. Case is People of the State of Illinois v. Tapley18067193203205, decided by the Illinois Court of Appeals for the second district on December 18, 2020. As usual, the blog entry is divided into categories and they are: additional facts; court’s reasoning affirming the use of a service dog (ADA); court’s reasoning affirming the use of a service dog (a fair trial/confrontation clause); and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Additional Facts

 

In addition to the facts noted above, additional relevant facts include:

 

  1. On November 28, 2017, Illinois filed a motion in limine to allow R.L. to testify in the presence of her facility dog. Illinois alleged that R.L. suffered from PTSD as a result of defendant’s abuse and that she had a facility dog that accompanied her everywhere. Illinois alleged that she had previously suffered from PTSD episodes affecting her ability to go to school and communicate effectively but that the use of the facility dog has enabled her to attend school again. Illinois alleged that it had reason to believe that she might suffer a PTSD episode while testifying that would prevent her from reasonably communicating with the jury. Illinois further alleged the use of the facility dog and/or closed-circuit television would help ensure that she would not have a PTSD episode during the trial and would limit any further emotional distress to her.
  2. The term facility dog appears in section 106B-10 of the Code of Civil Procedure of 1963 for the state of Illinois, 725 ILCS 5/106B-1018168194204206, while the Code of Federal Regulations implementing the ADA, 28 C.F.R. §35.104, refers to a service animal, specifically a dog. The trial court found that her dog qualified as a service dog under the ADA.
  3. At a hearing on March 15, 2018 defense counsel stated that he learned that Illinois was planning to have R.L. testify with the dog present under the ADA. In response, the trial court stated, “there are very few things that can be done from the court’s perspective pertaining to that. What I mean by that is if in fact there is a disability, you can’t even ask what the disability is. The ADA does allow a service dog, and I think that’s what you’re getting to. She has made that request to court administration.”
  4. At the beginning of the April 5, 2018 motion in limine hearing the trial court stated that if it found out that it was an actual service dog, not a comfort dog, the court was going to have to make a reasonable accommodation. The trial court administrator and disability coordinator testified at that hearing that his responsibilities included monitoring access to the courthouse for people with disabilities. Further, that R.L.’s mother had contacted him about three months prior requesting that a service animal be present for her daughter’s testimony.
  5. According to the Illinois Atty. Gen.’s Manual for Court Disability Coordinators, the trial court administrator/disability coordinator is permitted to ask only two questions, those being whether the animal was required for a disability and what work or tasks it performs for the individual. Those questions were answered in the affirmative because the dog assisted in coping with a mental illness. In court, the trial court administrator/disability coordinator admitted that in situations where it was not apparent what the nexus was between the disability and the service animal, the Illinois Atty. Gen. Manual allowed him to ask what the functional limitation was but that he did not do so because the nexus between the dog and the disability was readily apparent to him.
  6. At a hearing on August 22, 2018, the trial court stated, “I reviewed the matters and received the information from our coordinator, and the court will allow a service dog to be present.” It stated that the dog should be brought in on August 24 to determine a reasonable accommodation. In response to R.L.’s mother request that the defendant not be present when the dog is brought in for those purposes, the trial court responded that it just needed the dog to come in with someone who could control the dog. R.L.’s mother said that the dog and R.L. were a team and had not been separated since becoming a team and that only R.L. could legally take the dog out in public. After some back and forth, the court winds up concluding that R.L. has a disability covered by the ADA and that the dog is a service dog.
  7. R.L. and the dog were present in the courtroom on August 24, 2019. The trial court stated that the gate on the witness stand that would be closed when she testified so that the jury would not be able to see the dog when it sat next to her. The trial court stated that the dog should not go on her lap. In response to that, R.L. stated that getting on her lap was one of the dog’s commands when she was anxious. She stated that the dog was likely to go up on her lap at least once even though she was not going to tell her to do that. Instead, that was one of the commands that she has and that the dog was trained to do.
  8. The trial court stated that it understood but that they were going to do the best they could. It stated that she could be seated with the dog for a few minutes to relax before the jury was brought in and before questioning started. It also stated that when she completed her testimony, the jury would leave the courtroom before she and the dog got up. The record indicates that the dog did sit on her lap one time while they were discussing the issue. Illinois described the dog as a medium-sized dog and stated that it did not think they could avoid the jury noticing the dog. Illinois also stated that it did not think that there was any way to get around the dog getting on her lap if that was part of the dog’s work in assisting her with her disability. The trial court repeated that it understood and said they were going to try to minimize it as much as possible.
  9. Testimony in the defendant’s jury trial began on September 18, 2018. Defense counsel did not object to the trial court’s jury instruction pertaining to the service dog, which stated in part: “ladies and gentlemen of the jury, I want to instruct you at this time that the witness has a service dog with her while she testifies. You are not to draw any inference in favor or against either side because of the dog’s presence. And the focus of your attention should be on the testimony of the witness. The presence of the service dog in the courtroom shall not be considered in any way in the jury’s deliberations or verdicts.”
  10. During cross-examination, the following exchange occurred: “[defense attorney]: Judge, I would ask that the dog be placed on the-[the court]: if-if-if the dog could go down, that would be fine so that the dog doesn’t stand up and block your face. Okay? [The witness]: okay [the court]: you may proceed.”
  11. The jury found defendant guilty of counts I through III and not guilty of Count IV. On October 9, 2018, defendant filed a motion for new trial arguing among other things that allowing the dog to be present at trial was prejudicial because it evoked sympathy and pity for R.L. and misled the jury to believe that she suffered from a disability he caused. The trial court denied that motion.
  12. During the sentencing hearing, testimony occurred noting that it took R.L. 18 months to obtain a dog because the dog’s training had to be tailored to R.L. R.L. received the dog in 2017 and it helped her function in society by alleviating the symptoms of her PTSD. For example, if she started disassociating while walking down the street, the dog was trained to detect that and to take action to redirect her. The costs of the dog and its care were considered medical expenses and her family had been compensated for the majority of the expenses through the crime victim compensation fund.
  13. The defendant appealed claiming that: 1) there was no showing that the dog was required under the ADA; 2) the ruling denied him a fair trial and impacted his confrontation rights; and 3) allowing the complaining witness to testify with the dog fundamentally altered the nature of the trial

 

II

Court’s Reasoning Affirming the Use of the Service Dog (ADA)

 

  1. The issue of the witness using a service dog under the ADA appears to be one of first impression in Illinois and maybe anywhere as the defendant did not cite, nor did the court’s research reveal, a case from another jurisdiction specifically addressing the issue.
  2. 42 U.S.C. §1213218269195205207, title II of the ADA, prohibit a public entity from discriminating against qualified individuals with disabilities.
  3. PTSD is listed as an impairment that substantially limits brain function in 28 C.F.R. §35.10818370196206208(d)(2)(iii)(K).
  4. As readers of this blog know, a service animal is any dog individually trained to do work or perform tasks for the benefit of an individual with a disability, including physical, sensory, psychiatric, intellectual, or other mental disability. Examples of work or tasks performed by service animals include helping persons with psychiatric and neurological disability by preventing or interrupting impulsive or destructive behaviors. 28 C.F.R. §35.10418471197207209.
  5. A public entity cannot ask about the nature or extent of a person’s disability, but they can make two inquiries to determine whether an animal qualifies as a service animal. In particular, they can ask if the animal was required because of a disability and what work or tasks animal has been trained to perform. A public entity cannot require documentation, such as proof that the animal has been certified, trained, or license as a service animal. The two questions get asked when it is not readily apparent that the animal is trained to do work or perform tasks when individual with a disability. 28 C.F.R. §35.13618572198208210(f).
  6. Allowing R.L. to testify with a service dog was within the trial court’s discretion under Illinois Rules of Evidence 611. Illinois Rules of Evidence 611 allows for the court to exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to: 1) make the interrogation and presentation effective for the ascertainment of the truth; 2) avoid needless consumption of time; and 3) protect witnesses from harassment or undue embarrassment. An abuse of discretion occurs only where the court’s ruling is fanciful, arbitrary, or unreasonable, which is not the case here.
  7. One of the purposes of the ADA is to prohibit a public entity from discriminating against a person with a disability because of his or her disability. So, the focus needs to be on whether the discrimination has occurred and not whether the individual meets the definition of a disability. In most cases, the question of whether an individual meets the definition of disability does not demand extensive analysis. 28 C.F.R. §35.10118673199209211(b)
  8. The cases cited by the defendant simply don’t wash because they concerned the situation where an individual with a disability brought suit against an entity for allegedly violating the right to have their service animals present. Whereas here, R.L. was allowed to use her service dog as requested.
  9. The ADA does not provide protection for individuals without disabilities.

 

III

Court’s Reasoning Affirming the Use of the Service Dog (Fair Trial/Confrontation Clause).

 

  1. If it is not readily apparent that a service animal is acting as a service animal, then those two inquiries can be asked.
  2. After reviewing the trial court administrator/disability coordinator’s written decision, the trial court was satisfied that there was a disability covered by the ADA and that the dog was a service dog.
  3. Defendant was informed that R.L. had requested the use of a dog for a disability and that the trial court granted the request.
  4. It doesn’t matter that there was no showing that the handler of the service dog had a disability because a public entity is prohibited from asking about the nature or extent of a person’s disability and the defendant also would not be entitled to that information.
  5. Ample evidence in the record exists that R.L. claimed to have PTSD. In fact, defense counsel admitted as much in a motion they filed.
  6. Defendant’s argument that there was no evidence that the dog was a service dog does not apply for several reasons: 1) the final regulations state that a public entity may ask only the two questions to determine whether an animal qualifies as a service animal; and 2) a public entity cannot require documentation, such as proof that the animal has been certified, trained or licensed as a service animal. So if the trial court was not allowed to require proof that the dog was trained, it follows that the defendant was likewise not entitled to such proof.
  7. At the sentencing hearing, at which the witnesses were subject to cross-examination, there was testimony that the dog had been prescribed by her pediatrician, it took 18 months to obtain the dog because it had to be trained for her needs, and that the family had been compensated for the majority of the expenses through the crime victim compensation fund because the cost of the dog and its care were considered medical expenses.
  8. It was adequately conveyed to the defendant that getting on R.L.’s lap was one of the commands that the dog was trained to do when R.L. was anxious. That very point was reiterated by Illinois as being part of the dog’s work in assisting her with her disability.
  9. Defendant had a full trial in front of a jury and has not cited case law or elaborated and how the dog altered the nature of the trial. Accordingly, that issue is forfeited for review.
  10. All of the courts examining a challenge to the use of a comfort dog in a courtroom have concluded that the dog’s presence is not inherently prejudicial.
  11. In a case out of Washington, that court said that whatever subconscious bias the jury may have by seeing the dog was cured by the trial court’s limiting instruction cautioning the jury not to make any assumptions or draw any conclusion based upon the presence of the dog. Similarly, in a case out of New York the court noted that there was no proof that sympathy was significantly greater than the normal human response to a child’s testimony about his or her sexual abuse at the hands of an adult. There also, the court instructed the jury not to allow sympathy to enter into its considerations, especially with respect to an outside factor like a facility dog.
  12. R.L. allegedly suffered from the PTSD in the first place because of defendant’s actions.
  13. The Supreme Court of Illinois Policy on Access for Persons with Disabilities states that the court will honor the choice of the individual, unless it demonstrate that another equally effective accommodation is available, or that the requested accommodation would result in a fundamental alteration of court activity or undue financial and administrative burdens.
  14. The trial court had a gate installed on the witness box to obstruct the jury’s view of the dog and held a separate hearing with the dog present so that the party could view how the dog would be seated next to R.L. during the trial. Illinois had disclosed that the dog would probably get on her lap while she testified because it was one of the dog’s commands and the trial court stated that should be minimized as much as possible. The trial court further stated that R.L. would be seated with the dog before the jury was brought in and that, after her testimony, the jury would leave the courtroom before she and the dog got up.
  15. Before she testified, the trial court instructed the jury in detail regarding the dog, stating: “ladies and gentlemen of the jury, I want to instruct you at this time that the witness has a service dog with her while she testifies. You are not to draw any inference in favor or against either side because of the dog’s presence. The focus of your attention should be on the testimony of the witness. Presence of the service dog in the courtroom shall not be considered in any way in the jury’s deliberations or verdicts.”
  16. A jury is presumed to follow a trial court’s jury instructions. Accordingly, for that and the other reasons noted in this blog entry the trial court adequately compensated for any potential sympathy generated by the dog’s presence so that the defendant’s right to a fair trial was not violated.
  17. While it is true that the sixth amendment give criminal defendants the right to be confronted with the witnesses against him, there was no issue of the right to confrontation here. She testified in clear view of the defendant and was subject to an extensive cross-examination by defense counsel. The dog got on her lap once, blocking her face, but as soon it defense counsel asked that the dog be placed on the ground, the trial court told her to do so and she immediately complied. And counsel with an able to resume it cross-examination thereafter.

 

IV

Thoughts/Takeaways

 

  1. You can expect to see other cases like this as time goes on. The way the trial court handled the situation will undoubtedly serve as a model for how other courts should deal with the situation where a witness claims to have a service dog.
  2. As we have discussed previously, here18774200210212, the title II and title III regulations do not limit an entity to two questions when it comes to trying to figure out whether the animal is a service dog. Rather, they are limited to two inquiries. Inquiries is much broader than two questions. True, the DOJ frequently asked questions document refers to only two questions. However, the regulation refers to two inquiries. Under Kisor v. Wilkie, which we discussed here18875201211213, regulations are going to trump any guidances. That said, any additional questions focusing on the two inquiries would have to be very narrowly focused for them to be permissible.
  3. Lots of confusion with terminology in this case. For example, the case talks about comfort dogs, assistance animals, facility dogs, and service animals. They all mean different things, the terms come from a variety of different places, and the terms are not necessarily consistent with how the ADA deals with service animals. Only a service animal gets protection under title II of the ADA. Also, the title II term is “reasonable modification,” though it means the same thing as title I’s “reasonable accommodation.”
  4. There was no debate in this case whether R.L. was qualified as she obviously met the essential eligibility requirements of being able to testify in court.
  5. In most cases, whether a person has a disability does not demand extensive analysis.
  6. The ADA does not provide protection for individuals that do not have disabilities.
  7. The Supreme Court of Illinois Policy on Access for Persons with Disabilities stating that the court will honor the choice of the individual unless the court demonstrates another equally effective accommodation is available or that the requested accommodation will result in a fundamental alteration of court activity or in undue financial or administrative burden is an interesting statement. That statement goes beyond what title II of the ADA and its final implementing regulations require. It is an accurate statement of what a title II entity would have to do with respect to their effective communication obligations, but effective communication is not what was involved here, not really anyway. There is absolutely no reason why a State can’t go further than what title II requires because title II just sets a floor.
  8. A limiting instruction whenever a person testifies with a service animal is an excellent idea. The way the trial court and its trial court administrator/disability coordinator went about the whole process was first rate.
  9. Another thing that the trial court did nicely is separating out the role of the administrator from the judge with respect to granting the accommodations. The two roles are very separate, though as we saw here, the trial court administrator/disability coordinator and the judge do wind up working together. I have seen situations where everything is sent to the judge and the trial court administrator/disability coordinator is eliminated with the theory being that the judge is then protected by way of judicial immunity. However, deciding on accommodations is not a judicial act.
  10. What happens if the court had messed this whole accommodation process up? Could they have been sued for disability discrimination in their official capacity? For that answer, take a look at this case we discussed previously18976202212214 in our blog.
  11. Whether it is readily apparent than a dog is a service animal can be a subjective question. In this case, it was pretty obvious to the trial court administrator/disability coordinator that the animal was a service animal but not everybody would see it that way necessarily. If they don’t, they can make those two inquiries. If it is blatantly obvious that the dog is a service animal, then those inquiries should not be made. In the case of a close call, if the two inquiries are made and any follow-up questions narrowly focused, hard to believe that liability would follow for asking follow-up questions narrowly focusing on the two inquiries even though it might be debatable as to whether the need for the service animal is readily apparent
  12. Certainly, that the service dog was necessary because of the conduct of the defendant factored into the equity of the situation. However, how a person comes to their disability is completely irrelevant to whether they have a disability that gets accommodated under the ADA.
  13. I can’t see how an appeal to the Illinois Supreme Court would go anywhere.
  14. In case you are wondering where the Second District of the Illinois Appellate Court is, it is the area immediately north and west of Cook County to the Illinois state line (Cook County is where Chicago is and some of its inner suburbs).

First off, I want to welcome everyone back from the Christmas and New Year weeks. I hope everybody had a safe and happy week and continues to be safe. Today’s blog entry is something that came out in mid-December from the EEOC. I have not blogged on it yet because there were other things that I wanted to get off my blog pipeline. Also, labor and employment lawyers immediately jumped on this and have been writing about it or blogging about it or I am sure podcasting about it. So, there is plenty of information out there about what the EEOC did with respect to the new part of their guidance dealing with the ADA and Covid-19 vaccinations. Even so, since I have blogged on EEOC updates to this document previously, I thought my readers would appreciate seeing any thoughts I might have on the subject as well. So, what we have here is the EEOC guidance reproduced verbatim with any thoughts or comments I have underneath each section. I realize that the format of this first paragraph appears strange, but fixing it seems to be beyond my technological expertise. lol

 

K. Vaccinations

The availability of COVID-19 vaccinations may raise questions about the applicablilty of various equal employment opportunity (EEO) laws, including the ADA and the Rehabilitation Act, GINA, and Title VII, including the Pregnancy Discrimination Act (see Section J, EEO rights relating to pregnancy95183191197198198).  The EEO laws do not interfere with or prevent employers from following CDC or other federal, state, and local public health authorities’ guidelines and suggestions.

ADA and Vaccinations

K.1. For any COVID-19 vaccine that has been approved or authorized by the Food and Drug Administration (FDA), is the administration of a COVID-19 vaccine to an employee by an employer (or by a third party with whom the employer contracts to administer a vaccine) a “medical examination” for purposes of the ADA? (12/16/20)

No.  The vaccination itself is not a medical examination.  As the Commission explained in guidance on disability-related inquiries and medical examinations96184192198199199, a medical examination is “a procedure or test usually given by a health care professional or in a medical setting that seeks information about an individual’s physical or mental impairments or health.”  Examples include “vision tests; blood, urine, and breath analyses; blood pressure screening and cholesterol testing; and diagnostic procedures, such as x-rays, CAT scans, and MRIs.”  If a vaccine is administered to an employee by an employer for protection against contracting COVID-19, the employer is not seeking information about an individual’s impairments or current health status and, therefore, it is not a medical examination.

Although the administration of a vaccination is not a medical examination, pre-screening vaccination questions may implicate the ADA’s provision on disability-related inquiries, which are inquiries likely to elicit information about a disability.  If the employer administers the vaccine, it must show that such pre-screening questions it asks employees are “job-related and consistent with business necessity.”  See Question K.297185193199200200.

My thoughts: With respect to paragraph one of this §, the first ¶ makes a great deal of sense. With respect to the second ¶, that gets a little complicated. In particular, the EEOC quite correctly says that if an employer administers the vaccine, it must show that such prescreening questions asked of employees are job-related and consistent with business necessity. That makes sense. However, the implication is that if the employer is not administering the vaccine anything goes. Any such implication isn’t exactly right because the ADA is a nondelegable duty as we discussed here186194200201201.

K.2. According to the CDC, health care providers should ask certain questions before administering a vaccine to ensure that there is no medical reason that would prevent the person from receiving the vaccination. If the employer requires an employee to receive the vaccination from the employer (or a third party with whom the employer contracts to administer a vaccine) and asks these screening questions, are these questions subject to the ADA standards for disability-related inquiries? (12/16/20)

Yes.  Pre-vaccination medical screening questions are likely to elicit information about a disability.  This means that such questions, if asked by the employer or a contractor on the employer’s behalf, are “disability-related” under the ADA.  Thus, if the employer requires an employee to receive the vaccination, administered by the employer, the employer must show that these disability-related screening inquiries are “job-related and consistent with business necessity.”  To meet this standard, an employer would need to have a reasonable belief, based on objective evidence, that an employee who does not answer the questions and, therefore, does not receive a vaccination, will pose a direct threat to the health or safety of her or himself or others.  See Question K.5.98187195201202202 below for a discussion of direct threat.

By contrast, there are two circumstances in which disability-related screening questions can be asked without needing to satisfy the “job-related and consistent with business necessity” requirement.  First, if an employer has offered a vaccination to employees on a voluntary basis (i.e. employees choose whether to be vaccinated), the ADA requires that the employee’s decision to answer pre-screening, disability-related questions also must be voluntary.  42 U.S.C. 12112(d)(4)(B)99188196202203203; 29 C.F.R. 1630.14(d)100189197203204204.  If an employee chooses not to answer these questions, the employer may decline to administer the vaccine but may not retaliate against, intimidate, or threaten the employee for refusing to answer any questions.  Second, if an employee receives an employer-required vaccination from a third party that does not have a contract with the employer, such as a pharmacy or other health care provider, the ADA “job-related and consistent with business necessity” restrictions on disability-related inquiries would not apply to the pre-vaccination medical screening questions.

The ADA requires employers to keep any employee medical information obtained in the course of the vaccination program confidential101190198204205205.

My thoughts: As I was going about writing up this blog, I had not looked at all of the questions beforehand. Rather, I looked at each question individually and then wrote my thoughts. You can see from the EEOC answer to this question that the implication of anything goes with respect to the vaccine if not administered by an employer was an implication that the EEOC did not intend. Otherwise, the EEOC responses to this question are right on the money.

 

K.3. Is asking or requiring an employee to show proof of receipt of a COVID-19 vaccination a disability-related inquiry? (12/16/20)

No.  There are many reasons that may explain why an employee has not been vaccinated, which may or may not be disability-related.  Simply requesting proof of receipt of a COVID-19 vaccination is not likely to elicit information about a disability and, therefore, is not a disability-related inquiry.  However, subsequent employer questions, such as asking why an individual did not receive a vaccination, may elicit information about a disability and would be subject to the pertinent ADA standard that they be “job-related and consistent with business necessity.”  If an employer requires employees to provide proof that they have received a COVID-19 vaccination from a pharmacy or their own health care provider, the employer may want to warn the employee not to provide any medical information as part of the proof in order to avoid implicating the ADA.

My thoughts: Nothing to add here.

 

ADA and Title VII Issues Regarding Mandatory Vaccinations

K.4. Where can employers learn more about Emergency Use Authorizations (EUA) of COVID-19 vaccines? (12/16/20)

Some COVID-19 vaccines may only be available to the public for the foreseeable future under EUA granted by the FDA, which is different than approval under FDA vaccine licensure. The FDA has an obligation102191199205206206 to:

[E]nsure that recipients of the vaccine under an EUA are informed, to the extent practicable under the applicable circumstances, that FDA has authorized the emergency use of the vaccine, of the known and potential benefits and risks, the extent to which such benefits and risks are unknown, that they have the option to accept or refuse the vaccine, and of any available alternatives to the product.

The FDA says that this information is typically conveyed in a patient fact sheet that is provided at the time of the vaccine administration and that it posts the fact sheets on its website.  More information about EUA vaccines is available on the FDA’s EUA page103192200206207207.

My thoughts: Nothing to add here.

K.5. If an employer requires vaccinations when they are available, how should it respond to an employee who indicates that he or she is unable to receive a COVID-19 vaccination because of a disability? (12/16/20)

The ADA allows an employer to have a qualification standard104193201207208208 that includes “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.”  However, if a safety-based qualification standard, such as a vaccination requirement, screens out or tends to screen out an individual with a disability, the employer must show that an unvaccinated employee would pose a direct threat due to a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”  29 C.F.R. 1630.2(r)105194202208209209.  Employers should conduct an individualized assessment of four factors in determining whether a direct threat exists: the duration of the risk; the nature and severity of the potential harm; the likelihood that the potential harm will occur; and the imminence of the potential harm.  A conclusion that there is a direct threat would include a determination that an unvaccinated individual will expose others to the virus at the worksite.  If an employer determines that an individual who cannot be vaccinated due to disability poses a direct threat at the worksite, the employer cannot exclude the employee from the workplace—or take any other action—unless there is no way to provide a reasonable accommodation (absent undue hardship106195203209210210) that would eliminate or reduce this risk so the unvaccinated employee does not pose a direct threat.

If there is a direct threat that cannot be reduced to an acceptable level, the employer can exclude107 the employee from physically entering the workplace, but this does not mean the employer may automatically terminate the worker.  Employers will need to determine if any other rights apply under the EEO laws or other federal, state, and local authorities.  For example, if an employer excludes an employee based on an inability to accommodate a request to be exempt from a vaccination requirement, the employee may be entitled to accommodations such as performing the current position remotely. This is the same step that employers take when physically excluding employees from a worksite due to a current COVID-19 diagnosis or symptoms; some workers may be entitled to telework or, if not, may be eligible to take leave under the Families First Coronavirus Response Act, under the FMLA, or under the employer’s policies. See also Section J, EEO rights relating to pregnancy108196204210211211.

Managers and supervisors responsible for communicating with employees about compliance with the employer’s vaccination requirement should know how to recognize an accommodation request from an employee with a disability and know to whom the request should be referred for consideration.  Employers and employees should engage in a flexible, interactive process to identify workplace accommodation options that do not constitute an undue hardship (significant difficulty or expense).  This process should include determining whether it is necessary to obtain supporting documentation about the employee’s disability and considering the possible options for accommodation given the nature of the workforce and the employee’s position.  The prevalence in the workplace of employees who already have received a COVID-19 vaccination and the amount of contact with others, whose vaccination status could be unknown, may impact the undue hardship consideration.  In discussing accommodation requests, employers and employees also may find it helpful to consult the Job Accommodation Network (JAN) website as a resource for different types of accommodations, 109www.askjan.org197205211212212.  JAN’s materials specific to COVID-19 are at 110https://askjan.org/topics/COVID-19.cfm198206212213213.

Employers may rely on CDC recommendations when deciding whether an effective accommodation that would not pose an undue hardship is available, but as explained further in Question K.7.111199207213214214, there may be situations where an accommodation is not possible.  When an employer makes this decision, the facts about particular job duties and workplaces may be relevant.  Employers also should consult applicable Occupational Safety and Health Administration standards and guidance.  Employers can find OSHA COVID-specific resources at: www.osha.gov/SLTC/covid-19/112200208214215215.

Managers and supervisors are reminded that it is unlawful to disclose that an employee is receiving a reasonable accommodation or retaliate against an employee for requesting an accommodation113201209215216216.

My thoughts:

With respect to ¶ 1, I do not have any issues with respect to what the EEOC says. I appreciate how the EEOC explains what a significant risk of substantial harm is. Their explanation is consistent with their own regulations and with Chevron v. Echazabal, which we discussed many times previously, such as here202210216217217. The one thing that I would add is that under Chevron v. Echazabal, the direct threat determination must be based upon a reasonable medical judgment relying on the most current medical knowledge and/or the best available objective evidence.

With respect to ¶ 2, the interactive process is so important. We discussed the do’s and don’ts of the interactive process here203211217218218.

With respect to ¶ 3, the interactive process concerns noted immediately above also apply here. Also, be careful not to request excessive documentation. I agree with the recommendation to contact the Job Accommodation Network204212218219219 when necessary.

With respect to ¶ 4, employers may want to have their own infectious disease specialist on retainer as the CDC guidances and recommendations can be extraordinarily confusing, if not contradictory even, when taken as a whole. Certainly, the CDC guidances and recommendations have to be strongly considered. As the EEOC says, don’t forget about OSHA either.

With respect to ¶ 5, don’t forget that the ADA at 42 U.S.C. §12203205213219220220, has prohibitions against interference as well as for retaliation.

K.6. If an employer requires vaccinations when they are available, how should it respond to an employee who indicates that he or she is unable to receive a COVID-19 vaccination because of a sincerely held religious practice or belief? (12/16/20)

Once an employer is on notice that an employee’s sincerely held religious belief, practice, or observance prevents the employee from receiving the vaccination, the employer must provide a reasonable accommodation for the religious belief, practice, or observance unless it would pose an undue hardship under Title VII of the Civil Rights Act.  Courts have defined “undue hardship” under Title VII114206214220221221 as having more than a de minimis cost or burden on the employer. EEOC guidance explains that because the definition of religion is broad and protects beliefs, practices, and observances with which the employer may be unfamiliar, the employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief.  If, however, an employee requests a religious accommodation, and an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance, the employer would be justified in requesting additional supporting information.

My thoughts: This is an example of how different areas of the law may use the same terms to mean very different things. As the EEOC discusses in this §, undue hardship and reasonable accommodation have a very different meaning under title VII with respect to accommodating religious practices or beliefs than they do under the ADA. Whether the distinction of undue hardship and reasonable accommodation should continue to have such a different meaning than it does under the ADA, is a question currently pending in the courts (if memory serves, there is such a case pending in the United States Supreme Court at the moment). Very interested to see whether the considerable difference between the ADA and title VII with respect to undue hardship and reasonable accommodation continues.

K.7. What happens if an employer cannot exempt or provide a reasonable accommodation to an employee who cannot comply with a mandatory vaccine policy because of a disability or sincerely held religious practice or belief? (12/16/20)

If an employee cannot get vaccinated for COVID-19 because of a disability or sincerely held religious belief, practice, or observance, and there is no reasonable accommodation possible, then it would be lawful for the employer to exclude115207215221222222 the employee from the workplace.  This does not mean the employer may automatically terminate the worker.  Employers will need to determine if any other rights apply under the EEO laws or other federal, state, and local authorities.

My thoughts: Nothing to add.

Title II of the Genetic Information Nondiscrimination Act (GINA) and Vaccinations

K.8. Is Title II of GINA implicated when an employer administers a COVID-19 vaccine to employees or requires employees to provide proof that they have received a COVID-19 vaccination? (12/16/20)

No. Administering a COVID-19 vaccination to employees or requiring employees to provide proof that they have received a COVID-19 vaccination does not implicate Title II of GINA because it does not involve the use of genetic information to make employment decisions, or the acquisition or disclosure of “genetic information” as defined by the statute. This includes vaccinations that use messenger RNA (mRNA) technology, which will be discussed more below.  As noted in Question K.9. however, if administration of the vaccine requires pre-screening questions that ask about genetic information, the inquiries seeking genetic information, such as family members’ medical histories, may violate GINA.

Under Title II of GINA, employers may not (1) use genetic information to make decisions related to the terms, conditions, and privileges of employment, (2) acquire genetic information except in six narrow circumstances, or (3) disclose genetic information except in six narrow circumstances.

Certain COVID-19 vaccines use mRNA technology. This raises questions about genetics and, specifically, about whether such vaccines modify a recipient’s genetic makeup and, therefore, whether requiring an employee to get the vaccine as a condition of employment is an unlawful use of genetic information.  The CDC has explained that the mRNA COVID-19 vaccines “do not interact with our DNA in any way” and “mRNA never enters the nucleus of the cell, which is where our DNA (genetic material) is kept.” (See https://www.cdc.gov/coronavirus/2019-ncov/vaccines/different-vaccines/mrna.html116208216222223223 for a detailed discussion about how mRNA vaccines work).  Thus, requiring employees to get the vaccine, whether it uses mRNA technology or not, does not violate GINA’s prohibitions on using, acquiring, or disclosing genetic information.

My thoughts: Very interesting discussion and makes sense.

 

K.9. Does asking an employee the pre-vaccination screening questions before administering a COVID-19 vaccine implicate Title II of GINA? (12/16/20)

Pre-vaccination medical screening questions are likely to elicit information about disability, as discussed in Question K.2.117209217223224224, and may elicit information about genetic information, such as questions regarding the immune systems of family members.  It is not yet clear what screening checklists for contraindications will be provided with COVID-19 vaccinations.

GINA defines “genetic information” to mean:

  • Information about an individual’s genetic tests;
  • Information about the genetic tests of a family member;
  • Information about the manifestation of disease or disorder in a family member (i.e., family medical history);
  • Information about requests for, or receipt of, genetic services or the participation in clinical research that includes genetic services by the an individual or a family member of the individual; and
  • Genetic information about a fetus carried by an individual or family member or of an embryo legally held by an individual or family member using assisted reproductive technology.

29 C.F.R. § 1635.3(c).  If the pre-vaccination questions do not include any questions about genetic information (including family medical history), then asking them does not implicate GINA.  However, if the pre-vaccination questions do include questions about genetic information, then employers who want to ensure that employees have been vaccinated may want to request proof of vaccination instead of administering the vaccine themselves.

GINA does not prohibit an individual employee’s own health care provider from asking questions about genetic information, but it does prohibit an employer or a doctor working for the employer from asking questions about genetic information.  If an employer requires employees to provide proof that they have received a COVID-19 vaccination from their own health care provider, the employer may want to warn the employee not to provide genetic information as part of the proof.  As long as this warning is provided, any genetic information the employer receives in response to its request for proof of vaccination will be considered inadvertent and therefore not unlawful under GINA.  See 29 CFR 1635.8(b)(1)(i) for model language that can be used for this warning.

 

My thoughts: I don’t do a lot of GINA work. I can say that carrying out these thoughts in this § might get complicated. It is certainly good preventive law. The EEOC also points to a regulatory section containing model language that can be used for telling the employee not to provide genetic information as part of proving that they were vaccinated for Covid-19. Finally, this is yet another example of how other laws can interact and overlap with the ADA.

 

If you have teams in the football playoffs (I have the bears), good luck. The college football playoff final should be a doozy.

 

Happy new year everyone!

Usually at this time of year, my last blog entry is devoted to the greatest hits for the year. However, for this year the data points are a bit mixed up because I  moved my blog platform to the Lex Blog platform halfway through the year. So, I don’t have data for the whole year. Judging from the data I looked at for the half year, it looked like it was pretty similar to last year’s. So, that left me with wondering what should I blog on. If there has been a theme to anything for this year, it has been that the world is very much in it together. On rare occasions, I have blogged about disability rights in other countries (I distinctly remember blogging on a decision from Australia saying that deaf individuals cannot serve on juries, but for some reason I can’t seem to find that blog entry. I can report that that particular decision went to United Nations Commission on Human Rights because Australia is a signatory to the UN Convention on Disability Rights and the United Nations Commission on Human Rights told Australia to fix the problem). With respect to today’s blog entry, Scott Lissner, the ADA Coordinator of the Ohio State University sent me a link involving a case out of the highest court, the Court of Appeal, in Ontario Canada, Longueepee v. University of Waterloo and Human Rights Tribunal of Ontario found here180210190190191, that I thought was very interesting reading. So, I thought I would talk about it and then compare it to how it might work under the ADA. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning; concurrence reasoning; and how this case would play out under the ADA and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories. For ease of understanding, I use “plaintiff.’ rather than British Commonwealth term, “claimant.”

 

I

Facts

 

Plaintiff had attended another University several years before applying for admission to University of Waterloo. At the prior University he achieved grades well below the University’s minimum admission requirement for transfer students. Accepting that the plaintiff had undiagnosed and un-accommodated disabilities (posttraumatic stress disorder and a moderate brain injury), when he attended the prior University, the University of Waterloo convened an admission committee to consider his application, consisting of academic transcripts, information about his volunteer work, and reference letters even though he did not meet the minimum admission requirements and had applied late. Focusing solely on the grades at the prior University, the University of Waterloo decided that he had not demonstrated the ability to succeed at their university and was refused admission. At the Human Rights Tribunal of Ontario level, plaintiff lost. He appealed to the next Level, the Divisional Court, and won. The University then appealed to the Court of Appeals, the high court of Ontario.

 

II

Court’s Reasoning

 

§ 11 of the Ontario code provides:

11 (1) A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,

(a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or

(b) it is declared in this Act, other than in section 17, that to discriminate because of such ground is not an infringement of a right.

(2) The Tribunal or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.

 

  1. The Divisional Court, the intermediate appellate court in Ontario, referred to the three-part test in British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868 (“Grismer”), at para. 20, that applies when a requirement or standard has been shown to be prima facie The responding party must prove on a balance of probabilities that:
    • it adopted the standard for a purpose or goal that is rationally connected to the function being performed;0
    • it adopted the standard in good faith, in the belief that it is necessary for the fulfillment of the purpose or goal; and
    • the standard is reasonably necessary to accomplish its purpose or goal, in the sense that the defendant cannot accommodate persons with the characteristics of the claimant without incurring undue hardship.
  2. The Divisional Court was satisfied that the University had discharged the first two elements. The adoption of an academic standard for admission based on past academic performance as the best indicator of future academic performance is rational. It reflects the good faith belief that the standard is necessary to fulfil the purpose of admitting students who have the ability to succeed in their university studies.
  3. The Divisional Court was not satisfied, however, that the University met the third prong of the Grismer The Court noted that the Admissions Committee had professed an “accommodation dialogue”, but the dialogue was “firmly anchored to the very grades which [the Admissions Committee] implicitly, if not expressly, recognised as not being reflective of Mr. Longueépée’s abilities”: at para. 53. In the court’s view, the Admissions Committee “seem[ed] to have deflected its responsibility to evaluate Mr. Longueépée’s application as presented”: at para. 53. While it purported to consider information other than Mr. Longueépée’s grades, the explanation for its decision was bereft of any evaluation of that information: at paras. 54-56. The University did not have to presume that Mr. Longueépée would be successful in university merely because his previous grades were unaccommodated, but it did have to establish that it accommodated him in the admissions process to the point of undue hardship: at para. 55.
  4. The Divisional Court concluded that because the University acknowledged that it could not interpret Mr. Longueépée’s grades free from their discriminatory effect, it either had to: (1) assess Mr. Longueépée’s candidacy without recourse to his marks; or (2) establish that it would result in undue hardship for it to do so: at para. 57. It failed to do either of these things: at para. 58. The University did not consider an approach that placed no reliance on prior marks, and so it could not now establish that no such approaches are available or would cause it undue hardship: at para. 60.
  5. The Divisional Court noted that, in her reconsideration decision, the Vice Chair of Human Rights Tribunal of Ontario had suggested that accommodation of Mr. Longueépée’s disabilities in the admissions process could lead to undue hardship (in the requirement to conduct an in-depth assessment of every application from a person asserting a disability). However, undue hardship had not been advanced by the University and there was no evidence in the record to support this conclusion: at para. 61.
  6. After accepting that the University had met what the Vice Chair characterized as the procedural duty to accommodate plaintiff’s inability to comply with its grade criteria for admission due to disability by conducting an individualized assessment of the application, the Vice Chair concluded that the University met its substantive duty to accommodate when it considered only the unaccommodated grades to be relevant to his ability to succeed in the University. That approach doesn’t make sense because it says that the University has no duty to carry through with the process to accommodate the plaintiff in his application for admission once a committee was formed.
  7. The Vice Chair recognized an undue hardship defense even though the University never argued or presented evidence of undue hardship.
  8. The finding of prima facie discrimination resulting from the University’s grade admission standard was not challenged by the University in the Ontario Court of Appeals.
  9. Failure to accommodate claims have a procedural and a substantive process to them. The procedural part is the identification of the process or procedure to be adopted in providing the accommodation to the person who would be subjected to the discriminatory standard. Once the institution has an understanding of the plaintiff’s needs, it has the obligation to ascertain and seriously consider possible accommodations that could be used to address those needs, including the option of undertaking an individualized assessment in the case of a discriminatory standard.
  10. The substantive component of accommodation refers to the steps taken to implement the accommodation to the point of undue hardship. It involves the consideration of what was actually done in the accommodation process to meet the individual’s needs.
  11. There was no indication that the University engaged in a back-and-forth with the plaintiff or undertook any other steps to assess how his disabilities might impact his ability to meet the University’s grade standard.
  12. No indication existed that the admission committee made any effort to understand how plaintiff’s disabilities might have affected his grades at the prior University, or to analyze whether his grades interpreted in light of his disabilities, might assist in showing his ability to succeed at the University.
  13. The admission committee failure to question how it should interpret plaintiff’s prior grades amounted to a decision to take those grades at face value. So, any individualized analysis of the plaintiff’s situation was inextricably tied to the discriminatory standard, the focus on his prior grades, which by the very nature of setting up an admission committee had already been recognize as not being reflective of plaintiff’s abilities.
  14. The admission committee consideration of only plaintiff’s prior grades is inconsistent with the individualized and holistic process described by the University when it concluded that it had met its procedural duty to accommodate.
  15. University did not consider whether plaintiff’s supplementary materials demonstrated an ability to succeed at the University. In particular, there is no indication that the admission committee considered plaintiff’s volunteer work on behalf of child abuse survivors and reference letters given for that work as relevant to his ability to succeed in the University. In fact, the Vice Chair of the Human Rights Tribunal of Ontario said that the admission committee was entitled to disregard reference letters in volunteer work as indicators of potential academic success. In other words, grades were the only indicator of possible success at the University.
  16. No evidence exists that the University presented to the Human Rights Tribunal of Ontario that the admission committee had actively engaged with the additional material provided by the plaintiff in order to determine whether that material demonstrated his ability to succeed at the University.
  17. Reasonable accommodations cannot take the form of simply applying the discriminatory grade standard to his unaccommodated grades. If the University was going to take that approach, it needed to establish undue hardship, which it never even tried to do. If it had tried to go with an undue hardship defense, the University would have had the burden of proving that issue up. No such evidence was presented on the issue and it was not before the Vice Chair when she made her decision.
  18. In essence, rather than inquire into the steps taken by the admission committee and respond to the prima facie discrimination that would result from the application of the grade standard to plaintiff’s prior academic record, the Vice Chair accepted that plaintiff had been accommodated when the admission committee based the decision solely on his unaccommodated grades. Further, the Vice Chair effectively gave credit to an undue hardship argument when the University did not present that evidence or rely on it for that defense. Accordingly, the divisional court was correct in setting aside the decisions on judicial review.
  19. The divisional court said it was sending the matter back to the admission committee with directions on how to assess plaintiff’s application and not to the Human Rights Tribunal of Ontario to determine the appropriate remedy. That doesn’t make sense because the conclusion that the University discriminated against the plaintiff in the admission process is inevitable on the record that was before the Vice Chair of the Human Rights Tribunal of Ontario when she made that decision. Accordingly, the appropriate remedy is to return the matter to the Human Rights Tribunal of Ontario for further disposition in light of the court’s opinion so that it may fashion the remedy that promote compliance with the code.

III

Concurrence by Lauwers

  1. Courts have treated universities with some caution.
  2. The feature of University autonomy at issue in this case is the admission process. The admission process is a core feature of University autonomy.
  3. It has long been accepted that courts should be reluctant to interfere in the core academic functions of universities.
  4. The decision whether to admit the plaintiff to Department of Biology’s math or science program was a decision going to the core of the University’s functions.
  5. Tribunals and courts should be equally careful to preserve the integrity of the University admission process.
  6. Nothing in the decision is intended to discourage or disparage the University’s grade admission standard.
  7. The deference owed to University does not completely insulate academic decisions from tribunal or judicial scrutiny, but the Human Rights Tribunal of Ontario must be cautious not to override the admission standards of universities and admission to ensure accommodations. Here, they were too cautious and plaintiff wins. However, other cases will be different and the Court of Appeal will have to feel their way between the tensions of deference to University decisions in core areas of their mandates and the duty to accommodate.

IV

How Would This Case Play Out with the ADA and thoughts/takeaways?

 

  1. I am not licensed in Canada or Ontario. So if you really want to have this decision analyzed for what it means for your college or university or your client dealing with an Ontario or Canadian college or university, get legal counsel licensed in Ontario and/or Canada.
  2. Both the Ontario law and the ADA talk about reasonable accommodations/modifications and the concept of undue hardship/burden. The meanings in both laws appear to be very similar. Also, in both places modifications must be made up to the point of undue hardship/undue burden.
  3. The ADA prohibits policies, practices, and procedures that discriminate against persons with disabilities when reasonable modifications/accommodations can be made.
  4. United States courts do give deference to academic decisions but that very much depends upon how the academic institution went about reaching that decision. We discussed that in this blog entry181211191191192.
  5. Diversity has become a big issue on American college and university campuses. It is unlikely that a university would focus solely on an individual’s grades in making an admission decision. It would play at many universities a huge part of it, but it would not be the sole criteria.
  6. One wonders if the University would not have won this case if legal counsel had argued undue hardship. Could the University have a legal malpractice case, such as we discussed here182212192192193. I do not know how similar the prima facie elements of legal malpractice claims in Canada are to of the prima facie elements of such claims here in the United States.
  7. The interactive process is always a good idea. With respect to title II of the ADA, there is case law out there saying that the interactive process applies to title II of the ADA. You don’t see such case law with respect to title III of the ADA, though preventive law and the ADA paradigm itself demands it. However, across all titles of the ADA there is the requirement to engage in individualized analysis. The Ontario Court of Appeal mentions that the Ontario disability discrimination law also requires an individualized analysis.
  8. A university need to look at the entire file that the student presents before making an admission decision.
  9. Ontario uses “undue hardship,” while title II and title III of the ADA use “undue burden,” and “fundamental alteration.” From reading the opinion, undue hardship in the Ontario law seem to be pretty close to the ADA concept of fundamental alteration and undue burden and to the ADA concepts of financial undue hardship and logistical undue hardship.
  10. For who gets into selective colleges and why, I highly recommend Jeffrey Salingo’s book on that subject, which can be found here183213193193194. Reading the book was a real eye-opener. It is also very easy to read. If you have a junior in high school or even a senior in high school and are interested in selective colleges, it is in my opinion mandatory reading. It is also mandatory reading for anyone working with students on their college choices. From reading that book, at selective colleges the grades you achieve in difficult classes are probably the number one thing that admissions committees look at. Test scores that match up with that performance are also important, though that is changing with colleges deemphasizing standardized tests altogether.
  11. Could a similar case happen here in the United States with a similar result? Hard to say. I do think that courts would share the concerns of the concurring judge when he says that who gets in is at the very core of colleges and universities. So, courts would be very reluctant to get involved with respect to who gets in. However, if a university or college did not look at the whole file as a matter of course that may be another story.
  12. Here in the United States, it is more likely that a high school student with a disability will fall into one of three situations: 1) a student with a disability that does not realize he or she has one; 2) a student with a disability who has a §504 plan; or 3) a student with a disability who has an IEP under the IDEA. With respect to the §504 plan, if the plan worked properly the student would be at the same starting line as the student without a disability and the academic record would reflect performance with being fully accommodated (I realize that there can be quite a bit of divergence between the theory and the practice of §504 plans). The IEP process works differently as it is based on goals and not a starting line analogy. It would possibly be more difficult for a college or university to figure out potential of the student from an IEP v. a §504 plan. However, unless a student discloses the disability up front in the admission process (I did at both the Bachelors and J.D. levels) it is unlikely that the admission committee would ever know about the student’s disability. If a student did disclose a disability, it would be wise for the University to look at the whole file. All this said, from reading Jeffrey Salingo’s book selective universities do look at the whole file to some degree if for no other reason than to maximize achieving a diverse class.
  13. Bottom line: colleges and universities should review the entire file of the student. Courts, at least in this country, are likely to give the college or university quite a bit of discretion if they make such a holistic review.
  14. I am not licensed to practice law in Canada or in Ontario. Also, other Canadian provinces may have their own laws on this subject.

Today’s blog entry comes out of the Northern District of Georgia, and it involves the question of what is deliberate indifference in effective communication cases. We have talked about effective communication and deliberate indifference numerous times before in the blog. The case of the day is Nix v. Advanced Urology Institute of Georgia198199. By way of full disclosure, I have previously on another matter consulted with local counsel on this case previously but have never consulted with the lead counsel. As usual, blog entry is divided into categories and they are: facts; court’s reasoning introductory matters; court’s reasoning effective communication; court’s reasoning deliberate indifference;; the case is being appealed and should be; and thoughts/takeaways. Of course, the reader is free to concentrate on any or all of the categories.

 

I

Facts Lifted Directly from the Opinion (citations are internal to the opinion)

 

Nix is deaf and primarily communicates using American Sign Language (ASL).2 Nix also reads and writes in English.3 Advanced Urology is a medical 1 The following facts are undisputed by the parties or otherwise supported by undisputed evidence in the record. 2 ECF 88, ¶ 1. 3 Id. ¶ 2. practice specializing in urological health.4 Prior to its involvement with Nix, Advanced Urology had treated deaf patients, but did not have an ongoing agreement with an interpreting agency.5 On February 5, 2018, Nix contacted Advanced Urology through a video relay service to make an appointment at its facility in Snellville, Georgia.6 Due to the emergency nature of Nix’s symptoms, the parties scheduled the appointment for February 7.7 Nix did not request an in-person interpreter during this initial call.8 The next morning, Nix called back and requested an interpreter.9 That request was forwarded to Missy Sherling—Advanced Urology’s VicePresident of Clinical Strategy—who, in turn, initiated a call with Steve Karasick and Kelly Brauer, Advanced Urology’s then-Chief Executive Officer and Surgery Center Director, respectively.10 Brauer, Karasick, and Sherling discussed Nix’s request, concluded they did not have sufficient time to procure an interpreter 4 Id. ¶ 3; ECF 89-1, ¶ 16. 5 ECF 89-1, ¶ 18. 6 Id. ¶ 18. 7 Id. ¶ 24; ECF 72 (Nix Dep. Tr. 78:11–21). 8 ECF 72 (Nix Dep. Tr. 81:10–20). 9 ECF 89-1, ¶ 25. 10 Id. ¶ 27. through their usual interpreting agency, and decided to look for other ways to fulfill Nix’s request.11 While attempting to locate an interpreter, Sherling learned that an Advanced Urology employee, Samantha Fazzolare, had a friend, Dalton Belew, who “could do basic signing.”12 Fazzolare did not inform Sherling of Belew’s profession or represent Belew as a trained or professional interpreter.13 Fazzolare provided Sherling with Belew’s contact information.14 Sherling did not, however, conduct any investigation into Belew’s background or qualifications as an interpreter.15 Based on Sherling’s subjective belief that Belew previously interpreted for another medical practice, Sherling and Karasick made the decision to ask Belew to interpret Nix’s appointment.16 Belew agreed.17 Contrary to Sherling’s beliefs, Belew was not certified in ASL,18 had never interpreted in a 11 ECF 66 (Sherling 30(b)(6) Dep. Tr. 15:2–23). 12 Id. at 17:18–18:3. 13 ECF 76 (Fazzolare Dep. Tr. 18:6–19:3). 14 ECF 89-1, ¶ 33. 15 ECF 66 (Sherling 30(b)(6) Dep. Tr. 27:3–21). 16 Id. at 74:18–25. 17 ECF 89-1, ¶ 38. 18 ECF 68 (Belew Dep. Tr. 12:14–16). medical setting,19 and characterized his own skills as “intermediate.”20 Belew had instead been previously employed as a video editor, floor manager at a news company, and at a dental office in an administrative position and as a sterilizer.21 After securing Belew’s agreement, Sherling called Nix and informed her an interpreter had been secured for her appointment.22 On February 7, Nix and Belew arrived at Advanced Urology for Nix’s appointment. The parties dispute many of the specific details of the appointment. However, the evidence is undisputed that Nix and Belew experienced significant difficulties communicating with each other through ASL. Due to Belew’s struggles, and his wearing of scrubs bearing Advanced Urology’s insignia, Nix became convinced Belew worked as a nurse, not an actual interpreter.23 At some point, Nix abandoned communication with Belew entirely and began writing notes and using gestures to communicate directly with the medical staff.24 Belew nonetheless remained in the room while Nix partially undressed and 19 Id. at 13:2–5. 20 Id. at 14:11. 21 Id. at 10:2–12:13. 22 ECF 89-1, ¶ 41. 23 E.g., ECF 72 (Nix Dep. Tr. 118:1–119:3). 24 ECF 89-1, ¶¶ 67–68. underwent two non-invasive ultrasounds.25 At the conclusion of the appointment, Nix and Belew filled out various forms affirming that Belew acted as an interpreter during the entire appointment.26 Advanced Urology ultimately issued Belew a check for $100 for his services.27 After her appointment, Nix and her husband complained to Advanced Urology regarding its decision to use Belew as an interpreter; Advanced Urology apologized and refunded their $40 co-pay for the appointment.2

 

plaintiff filed suit alleging violations of title III of the ADA, §504 to Rehabilitation Act, §1557 of the patient protection and Affordable Care Act, fraud, negligence, and intentional infliction of emotional distress. Of course, summary judgment motions were filed. She sought both injunctive relief and damages.

 

II

Court’s Reasoning Introductory Matters

 

  1. The Affordable Care Act, the ADA, and the Rehabilitation Act all use the same substantive standards.
  2. Plaintiff withdrew her claims for injunctive relief in her response to defendant’s motion for summary judgment.
  3. Plaintiff is a qualified person with a disability.
  4. Plaintiff utilizes ASL at her primary means of communication.

 

III

Court’s Reasoning Effective Communication

 

  1. With respect to whether communication is effective, the question is whether plaintiff experienced an impairment in her ability to communicate medically relevant information with hospital staff with a focus on the effectiveness of the communication and not on the medical success of the outcome.
  2. While perfect communication is not required, communication must still be effective.
  3. Ample evidence could lead a reasonable juror to find the communication between the plaintiff and the interpreter the practice hired to be ineffective. Examples include: the interpreter struggled to communicate even the most basic information, including his own name, during her appointment; the interpreter used incorrect signs for certain words, and the interpreter did not know what to sign or could not understand what plaintiff was attempting to communicate to him.
  4. Frustrated with the interpreter’s performance, plaintiff ultimately abandoned communication through ASL and resorted to self-help by exchanging handwritten notes in English directly with the medical staff.
  5. The 11th Circuit has held that the use of written notes may not be appropriate in the medical setting because such matters involve more complexity, such as communication about medical history or diagnoses, conversations about medical procedures and treatment decision, or communication of instruction for care at home or elsewhere. Written notes are better suited for more basic everyday interactions, such as the purchasing of an item in the hospital gift shop.
  6. The interpreter’s strained efforts in ASL interpretation combined with a mere four pages of handwritten notes created during the course of a three hour appointment, which included two noninvasive ultrasounds, does not constitute effective communications as a matter of law. So, genuine issues of material fact exists as to whether the limited auxiliary aids employed by the defendant impaired plaintiff’s ability to effectively communicate medically relevant information with that staff.

 

IV

Court’s Reasoning Deliberate Indifference

 

  1. Deliberate indifference is an exacting standard requiring showing more than gross negligence.
  2. No requirement exists in federal or Georgia law requiring a medical facility to provide an ASL certified interpreter for deaf patients.
  3. The mere failure to provide a patient with an interpreter is not enough to support a finding of deliberate indifference.
  4. Defendant did attempt to accommodate plaintiff’s last-minute request for an in person interpreter and procured one for her appointment. It is true that the interpreter constituted a poor choice and perhaps the defendant should have more rigorously vetted his qualifications as an interpreter before hiring them.
  5. No evidence exists that the defendant knew that it would be substantially likely that the interpreter could not effectively communicate with the plaintiff and yet did nothing about it.
  6. There is no dispute that the plaintiff ever specifically informed the defendant’s medical staff that she needed or wanted a different interpreter.
  7. Plaintiff did not raise any grievance concerning the interpreter’s performance until after the appointment.
  8. The interpreter believed that he and the plaintiff adequately communicated during the appointment, with the exception of certain medical terminology.
  9. Plaintiff’s medical providers willingly engaged in the exchange of written notes to facilitate communication.
  10. At best, the evidence demonstrates that the defendant should have done more to ascertain the interpreter’s competency in ASL before hiring him, but that is not enough to demonstrate deliberate indifference.
  11. No evidence exists creating a triable issue of fact that the defendant has knowledge that plaintiff’s rights would substantially likely to be violated and yet failed to act.

 

V

 

This Case Is Being Appealed and It Should

 

  1. While the court found that effective communication would not present here, it didn’t mention the standard in Silva I, which is: “To be ineffective communication, it is sufficient if the patient experiences a real hindrance, because of her disability, which affects her ability to exchange material medical information with her health care providers. This standard is consistent with the requirement that hospitals afford a level of communicationto a deaf patient about medically relevant information that is substantially equal to that afforded to non-disabled patients.”
  2. To show deliberate indifference in the 11th Circuit, Liese v. Indian River Community Hospital District180185200, which we discussed here181186201, a plaintiff has to show that the defendant: (1) knew they had failed to provide plaintiff with appropriate auxiliary aids necessary to ensure effective communication; (2) had the authority to order that aid be provided; and (3) was deliberately indifferent as to defendant’s failure to provide aid. A deliberate refusal to provide the auxiliary aid and service does constitute deliberate indifference under Silva I, discussed here182187202.
  3. The court frequently cite to Silva II, here183188203, which vacated the summary judgment on deliberate indifference but threw out the injunctive relief claim due to policy changes of the Defendant (the policy changes required: the provision of live in person interpreters upon request by a patient or guest; provided for VRI while waiting for a live interpreter; and provided for the scheduling of live interpreters for regularly scheduled appointments), as a basis for their decision. However, the impression created is not right. In Silva II, here184189204, the 11th Circuit said that deliberate indifference by itself is not the exacting standard, per Nix’s understanding for example, rather deliberate indifference requires that the indifference be a deliberate choice, which is the exacting standard.
  4. Silva II said that deliberate indifference occurs when the defendant knew that the harm to a federally protected right would substantially likely and failed to act on that likelihood. In other words, plaintiff must show ineffective communication done with knowledge that it would substantially likely to occur.

IV

Thoughts/Takeaways

 

  1. I, with co-counsel, have previously represented culturally deaf individuals, Deaf. From my experience, the culturally deaf can be a little too trusting of the hearing community at times. If you are representing a culturally deaf individual seeking medical care, you absolutely have to insist that he or she not go through with the appointment the minute they realize that a qualified interpreter is not there. They just have to walk away. You have to tell the culturally deaf individual to not even engage in the exchange of written notes except for the purposes of saying that he or she need a qualified interpreter.
  2. The court creates a higher standard for deliberate indifference than what was created in Silva I and Silva II. It resembles more the deliberate indifference standard adopted by the Seventh Circuit in a case we discussed here185190205.
  3. While the court says effective communication did not occur, they didn’t bring up the Silva I standard, which is whether communication was hindered.
  4. If you are representing a culturally deaf individual in a case like this, it becomes really important to have a table interpreter, an interpreter that acts very much as part of the legal team, who really understands how interpreting can go awry when a qualified interpreter is not involved. Also, be prepared to have an expert talk about the English ability levels of the plaintiff and the importance of ASL given that English ability (with respect to a culturally deaf individual, it is not unusual for such individuals to have English reading skills not higher than fourth grade if that).
  5. Prior to a culturally deaf individual walking away from the appointment, it is really helpful if the culturally deaf individual makes clear that the interpreter is not qualified and that they will not take any medical care offered until a qualified interpreter is present.
  6. Not sure why the plaintiff withdrew injunctive relief claims. I can say that one reason might be that the plaintiff had no intention of ever returning to that practice for reasons that are perfectly understandable.
  7. A culturally deaf individual need to immediately stop the appointment the minute he or she realizes the interpreter is not qualified. He or she should not wait till the end of the appointment to express those concerns.
  8. Depending upon your state, there may be informed consent concerns as well when a qualified interpreter is not provided for a culturally deaf individual. In the case that I served as co-counsel on, we had both informed consent claims as well as ADA claims in our complaint.
  9. Since the interpreter was not a qualified interpreter and bound by an interpreter code of ethics, there may be a breach of confidentiality claims against the physician as well in this kind of scenario.
  10. The 11th Circuit has been extremely progressive with respect to the rights of persons with disabilities. In light of Silva I, II and Liese, I like the chances of the plaintiff on appeal, though one never knows.

Today’s blog entry deals with the concept of judicial estoppel. As I previously discussed here, the concept says that you make representations in one forum those representations can come back to haunt you later. I have also written on how it is legal malpractice not to be aware of this principle, here179182192195190192192190191193192. In the ADA world, you will see judicial estoppel come up in the areas of short-term disability, long-term disability, workers compensation, and SSDI. Basically, what happens is you have a person with a disability who files one of the above claims and then argues that the employer should reasonably accommodate his or her disabilities. When the employer does not do so, they defend on the grounds of judicial estoppel.

In Cleveland v. Policy Management Systems, (we discussed that case here180183193196191193193191192194193 and the actual case can be found here194192193195194, a unanimous Supreme Court said that when it comes to SSDI in failure to accommodate claims, judicial estoppel doesn’t automatically apply. Rather, the plaintiff must give an explanation as to why the statements were inconsistent. So, turning to our case of the day, Allen v. Michelin North America, Inc., decided on December 14, 2020, out of the United States District Court of South Carolina, Greenville Division and written by Judge Timothy M Cain, you have a classic judicial estoppel situation. As usual, our blog entry is divided into categories and they are: key facts; court’s reasoning; problems with the decision; and thought/takeaways. Since this blog entry is so short, for me anyway, you will probably want to read the whole thing.

 

I

Key Facts

 

  1. In June 2017, “during a phone interview with the SSA, Plaintiff confirmed that she has been unable to work because of her disabling condition since January 20, 2017 and remains unable to work.”
  2. In June 2018, she submitted a statement in support of her application for long-term disability benefits indicating that she was “completely and totally disabled from performing my prior job, or any job on a full-time basis”) (emphasis added).
  3. In March 2017, during her deposition for her workers’ compensation case, Plaintiff testified that, “I’m out of work because of my – my ability to not – I can’t concentrate. I can’t – I’m not together,” and later, in her deposition for this case, confirmed that testimony as well as her statement in support of her long-term disability application that she had been unable to perform her job at that time).

 

II

 

Court’s Reasoning

 

  1. Cleveland does not apply to purely factual contradictions in summary judgment proceedings. Therefore, Cleveland does not apply to this particular scenario as what is involved are factual statement regarding her ability to work that directly contradict her allegations with respect to her failure to accommodate claims.
  2. For judicial estoppel to apply, the following criteria must be satisfied: A) the party to be estopped must be seeking to assert a position inconsistent with the stance taken in a prior judicial or quasi-judicial proceeding; B) the prior inconsistent position must have been accepted by the judicial or quasi-judicial body; and C) the party to be estopped must be seeking an unfair advantage through intentional machination.
  3. II(2)(A),(B) are easily satisfied by the representations made in the various applications and the setting they occurred in.
  4. II(2)(C) is satisfied because to decide otherwise would allow the plaintiff to treat her disability as a piece of clothing that can be donned and removed when the mood strikes her. Also, permitting plaintiff to proceed with this argument is the very height of countenancing an unfair advantage through the manipulation of the judicial process.
  5. Even if Cleveland applied, plaintiff failed to offer sufficient explanation for her contradictory statements and therefore cannot survive summary judgment on her ADA claims.

 

III

 

Problems with the Decision

 

  1. To say that Cleveland does not apply to facts but only to legal conclusions misstates Cleveland. In particular, Cleveland says the following: “Nor does it involve directly conflicting statements about purely factual matters, such as ‘The light was red/green,’ or ‘I can/cannot raise my arm above my head.’ An SSA representation of total disability differs from a purely factual statement in that it often implies a context-related legal conclusion, namely, ‘I am disabled for purposes of the Social Security Act.’ And our consideration of this latter kind of statement consequently leaves the law related to the former, purely factual, kind of conflict where we found it.” Cleveland , 526 U.S. at 802.
  2. The statements made by the plaintiff in this case are not the same as, “the light was red or green, or “I can or cannot raise my arm above my head.” Instead, statements referenced by the court are much more similar to the legal conclusions talked about in Cleveland than they are to pure facts.
  3. Even if the statements are somewhat factual, they are not the “purely factual,” type of statements made that the Court said in Cleveland were exempted from the rule. Statements made by the plaintiff in this case are very much overlaid with legal conclusions.
  4. It isn’t at all clear that the plaintiff was seeking an unfair advantage through intentional machination (the third element of judicial estoppel), as intentional implies some sort of subjective intent on the part of the plaintiff, which may or may not be the case here.

IV

Thoughts/Takeaways

 

  1. If Cleveland does not apply to the “factual,” matters described by the Allen court, then what you have is an exception that swallows the rule. Cleveland does not apply to “purely factual matters,” but those types of matters are not, in my opinion, involved in Allen.
  2. The problem the plaintiff is going to have on appeal, if there is one, is if she did not truly raise any questions as to why the contradictions were present, she is going to be out of luck regardless of whether an appellate court would say that Cleveland applies.
  3. Lawyers who are operating in the long term disability, short-term disability, SSDI, and workers compensation spaces must read this blog entry181184194199194196196194195197195 or run the considerable risk of legal malpractice. They also must be sure to make clear that there are reasons for the inconsistencies in the prior representations. Failure to offer any explanation is, in my opinion, legal malpractice and has been so ever since Cleveland was decided in 1999.
  4. If you are an attorney operating in the long term disability, short-term disability, SSDI, and workers compensation spaces, you need to be advise your clients of the risk inherent in making those applications with respect to judicial estoppel. If you can, tailor those applications to make clear that you are not implying or suggesting that your client would be disqualified from doing jobs if given reasonable accommodations per the ADA.
  5. Did I mention that you need to read this blog entry182185195200195197197195196198196?

 

Have a happy holiday season everyone.

676767187116178228117Airplane

peacock
On a plane? If it ever was…Not anymore.
On a plane? Yes, if I trained him for use outside the house.

686868188117179229120

Miniature horse
yes to non-federal governmental entities; yes to places of public accommodations; but not on planes.

Previously, the Department of Transportation came out with proposed regulations on service animals, here121230180118219189696969.  I have written about the issue of animals on planes numerous times before (such as here122231181119220190707070, here123232182120221191717171, and here124233183121222192727272), as well. Last week, the Department of Transportation came up with their final rule, here223193737373. So considering all the writing I have done on the subject, I felt compelled to blog on the final rule. As usual, the blog entry is divided into categories and they are: the final rule; and thoughts/takeaways. The reader is definitely going to want to read the final regulation section. Of course, I would like to think that the reader always wants to read my thoughts/takeaways. It’s not much of an add-on from the final regulation section anyway.

 

I

 

The Final Regulations

 

  1. The proposed regulations define a service animal as a dog and only a dog that is individually trained to do work or perform tasks for the benefit of a qualified individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. This definition pretty much tracks the DOJ final implementing regulations under title II and title III of the ADA (which we have discussed many times, such as here126235185123224194747474), found at 28 C.F.R. §§104127236186124225195757575, 36.104128237187125226196767676. A passenger can have up to two service animals. While a passenger could travel with two service animals, that does not give the passenger additional space for those service animals. That is, the airline must allow that individual to use all of his or her allotted space for both service animals without encroaching into the space of another passenger unless the owner wants to buy an additional seat. The airline could also find another section of the cabin that would allow for the passenger and the animal space permitting.
  2. Emotional support animals, comfort animals, companionship animals, and service animals in training are not included in the definition of a service animal. Such animals can be treated as pets by the carriers.
  3. A service animal is limited to a dog for a couple of different reasons. First, dogs are the most common animal species flying on aircraft, 90%. Second, dogs also have the temperament and ability to do work and perform tasks while behaving appropriately in a public setting and while being surrounded by a large group of people.
  4. Capuchin monkeys and miniature horses are not service animals. Monkeys are out because they may present a safety risk to other passengers as they have the potential to transmit diseases and exhibit unpredictable aggressive behavior. Miniature horses are out due to their size (I did recently read about a miniature horse flying with a person with a disability.
  5. Dog breed restrictions are out.
  6. Psychiatric service animals get treated the same as other service animal trained to do work or perform tasks.
  7. Service animals must be harnessed, leashed, or tethered when not with the passenger at their seat, which also includes anywhere in the airport that the airlines own, lease, or control.
  8. A service animal handler is a passenger in air transportation who is a qualified individual with a disability receiving assistance from a service animal that does work or perform tasks that are directly related to the individual’s disability, or a third party accompanying the individual with a disability traveling with a service animal such as a parent of a minor child or a caretaker.
  9. With respect to documentation that the animal is a service animal, the rule does the following: 1) requires individuals traveling with a service animal to provide to the airlines standardized documentation of the service animal’s behavior, training, and health; 2) if the service animal will be on a flight segment longer than eight hours, DOT mandates a standard form attesting that the animal would not need to relieve itself or can relieve itself in a way that does not create a health or sanitation risk; 3) the DOT forms are the only documentation that an airline will be able to use and require of a passenger traveling with a service animal. The airline does not have to ask a passenger traveling with a service animal for any documentation, but if they do, the airlines have to use the forms established by DOT. Only one form per trip is needed. Also, the forms must be on the airline’s websites, at the airport, or available by mail.
  10. The actual service animal behavior and training attestation form which has been combined with the proposed health certification form, contains the following certifications: 1) the animal has been trained to do work or perform tasks to assist the individual with his or her disability and has been trained to behave well in a public setting without aggression towards humans or other animals; 2) the animal will be harnessed, leashed, or tethered at all times in the airport and on the aircraft; 3) the airline has the right to treat the animal as a pet if the animal engages in disruptive behavior that show that it had not been successfully trained to behave properly in a public setting; 4) the airline has the right to charge for the cost to repair any damage caused by the service animal so long as the airline charges passengers without disability for the same kind of damage; 5) the animal has been vaccinated for rabies; 6) the animal does not have fleas or tics or a disease that would endanger people or other animals; 7) the name and phone number of the veterinarian, though a signature is not required; and 9) it is fraud to knowingly make a false statement to secure disability accommodations provided under DOT regulations.
  11. The species requirement is the same for both U.S. carriers and foreign carriers.
  12. Airlines can only make two inquiries to determine whether an animal qualifies as a service animal. The two questions are: 1) is the animal required to accompanying the passenger because of a disability; and 2) what work or tasks has the animal has been trained to perform. You cannot ask about the nature or extent of a person’s disability or ask that the service animal demonstrate its work or tasks. Unlike the DOJ’s title II and title III scheme, these questions can be asked regardless of whether it is readily apparent that the dog is assisting a person with a disability. While it doesn’t say so in this section, within the definition of handler it is clear that the disability must relate to the work or tasks performed. In addition to the two inquiries, carriers can observe the animal and look at physical indicators such as harnesses and vests. DOT recognizes that paraphernalia is widely available for purchase, and so carriers are free to give little weight to the presence of paraphernalia.
  13. An airline’s website must make the DOT forms mandated by the proposed rule available to passengers in an accessible format.
  14. With respect to making a determination to deny transport to a service animal on the basis that the animal has misbehaved and/or has caused a significant disruption in the cabin, it must be based upon an individualized assessment based upon a reasonable judgment relying on the best available and objective evidence to ascertain the probability that the misbehavior and/or disruption will continue to occur. Further, whether reasonable modifications in policies, practices, or procedure will mitigate the misbehavior and/or the disruption must also be considered.
  15. Anyone can train an animal to be a service animal.
  16. Carriers can deny transporting a service animal for any of four reasons: 1) animal poses a direct threat to the health or safety of others; 2) the animal causes a significant disruption in the aircraft or at the airport; 3) transporting the animal violates the applicable safety, health or other regulations of a federal agency, U.S. territory, or foreign government; or 4) the passenger failed to fill out the DOT forms when required to do so by the airline.
  17. Carriers cannot require a person with a disability to physically check in at the airport rather than using the online process on the basis that the person with the disability is traveling with a service animal.
  18. Prohibits carriers from imposing additional restrictions on the transport of service animals beyond what is specified in the proposed regulations.

 

III

Thoughts/Takeaways

  1. Current regulations implementing the Air Carrier Access Act are a mess. It’s amazing the system works at all. So, the final regulation brings needed clarity to the situation.
  1. I do not have a dog in the fight. That is, I am not currently representing or consulting with anybody or any organization with respect to these proposed rules. My hearing dog is strictly for the house, which I am told is not unusual for deaf or Deaf individuals.
  2. The final regulation gets rid of the arbitrary and unsupportable, even by DOT’s own admission, distinction between service animal for physical disabilities v. psychiatric disabilities.
  3. The final regulations eliminate the issue currently seen in the Tampa airport where Tampa airport said that emotional support animals unless they were crated or on a leash, etc., were not allowed in the airport. Such a decision was consistent with title II of the ADA’s final implementing regulations. Now that service animal under the DOT regulations matches for all practical purposes the regulations under title II and title III of the ADA, this is longer be an issue.
  4. Emotional support animals are out and are treated as pets. How many people will be truly affected by this decision is an open question.
  5. Delta Airlines will have to end its restriction on pitbulls as breed restrictions are out.
  6. Direct threat determination very closely resembles Chevron v. Echazabal, which we discussed here132241191129227197777777. It brings needed clarity to the area to what was previously very confusing.
  7. From a reading of the regulation, it can be concluded that a person training an animal to be a service animal has no right to fly with that animal unless they are the handler of that service animal or a person assisting the owner of that service animal.
  8. The documentation approach seems balanced and simplifies things greatly.
  9. Airlines can require the DOT standardized forms in advance up to 48 hours before the flight  unless the ticket was bought after that.
  10. DOT uses the two inquiries system found in the DOJ regulations but not in the DOJ’s frequently asked questions document. This leads to the real question of whether narrowly focused follow-up questions are in order if insufficient information is given to the two questions. Arguably, the answer is yes so long as the follow-up questions fall within those two inquiries.
  11. The regulations are exclusive. That is, airlines cannot add additional restrictions beyond the regulation.
  12. No doubt training will be needed. Be sure to use a knowledgeable trainer. That trainer needs to know both the applicable Air Carrier Access Act regulations as well as the ADA regulations pertaining to service dogs. That person also needs to recognize the similarities and differences between the two.
  13. What will happen to people who falsify the forms? Is the system geared up for that? Does putting such people into the criminal justice system even makes sense? The effect may be one of deterrence more than anything else.
  14. The harness, leash, or tethered requirement always applies to the animal when away from the passenger seat. This is different from the DOJ title II and title III of the ADA rules, which has a control of the handler’s standard. The difference comes down to the nature of airline flight.
  15. How does a person train an animal to fly on planes under this rule? I honestly don’t know the answer to that question. Perhaps, the airlines will work out deals with organizations that train dogs to be service animals. From the rule, it appears that the airlines are not required to allow service animals in training to fly on their planes in the passenger section.
  16. This blog has been a deep dive, but it is not legal advice. There is no substitution for knowledgeable Air Carrier Access Act counsel.

Hope everyone had a great Thanksgiving. We aren’t out of the woods yet with Covid-19. So, please be safe.

 

Today’s blog entry comes from the Fourth Circuit, Elledge v. Lowe’s Home Centers, LLC1801846767199,  a published decision decided on November 18, 2020. The case deals with two issues: failure to accommodate; and whether the ADA requires mandatory reassignment. So, the categories for this blog entry are going to be: facts; court’s reasoning failure to accommodate; court’s reasoning mandatory reassignment is not required by the ADA; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

Chuck Elledge worked for Lowe’s for over two decades. In 1993, Elledge accepted employment as a health care analyst at Lowe’s Home Center. He earned multiple promotions over the years, ultimately attaining the position of Market Director of Stores (MDS). In this position, Elledge oversaw a dozen stores. He ensured that his stores complied with corporate quality standards and, of course, that they continued to turn a healthy profit. Elledge served as an MDS for almost a decade, and the stores under his supervision performed well. Elledge also had problems with his right knee. In December 2014, he underwent the most serious of four surgeries on his knee. When he returned from leave, once effortless aspects of his job had become trials in “working through the pain.” Walking 4 the floors of the stores he supervised had become trying at times, and driving from store to store could be taxing. Given the demands of his station, these changes in Elledge’s condition were significant. For Elledge and for Lowe’s, the store visits were essential to maintaining high levels of compliance and performance. To keep pace with the needs of his stores, Elledge had typically conducted two separate store visits each day and worked between fifty and sixty hours each week, with the considerable walking and driving that entailed. Upon his return to work, Elledge’s doctor ordered him to restrict his walking to no more than four hours each day and his workday to no more than eight. Lowe’s, in consultation with Elledge, agreed that, for a time, he could and should abide by his doctor’s orders while he continued to work. Lowe’s also offered Elledge the use of a motorized scooter to ease the strain on his knee during store visits. Elledge declined the use of the motorized scooter and, although he did comply with his light-work schedule most of the time, he did not always find himself able to follow his doctor’s orders. Elledge arranged for his lower-ranking colleagues, who had previously only accompanied Elledge on his store visits, to drive him to and from the stores under his supervision, so that Elledge would have an opportunity to stretch out his knee in the back seat. Shortly after renewing these accommodations, Lowe’s learned that Elledge would be issued a permanent disabled parking permit. Contacting Elledge’s doctor, Lowe’s inquired whether Elledge’s restrictions would be permanent. The doctor replied in the affirmative: “I rec these be permanent restrictions.” In response to this development, Lowe’s Regional Human Resources Director Hollie Reinhart and Vice President of Store Operations Delno Dryden had several conversations with Elledge. The purpose of these conversations was to chart a mutually agreeable course forward. Although Elledge would not be able to remain in his present position, Reinhart and Dryden spoke with him about other potential career opportunities at Lowe’s, agreeing to network on his behalf regarding any vacancy in which he had an interest or, in the alternative, to help shift him to a less physically demanding manager level role. Displeased at the prospect of stepping down into a lower paying position, Elledge applied to two other director-level positions, Merchandising Director of Lawn and Garden and Merchandising Director of Outdoor Power Equipment. His applications were considered and rejected under Lowe’s succession planning and best-qualified hiring policies. Ryan Lane, who had been identified through the Lawn and Garden department’s succession planning policy, was selected for the former position. Chad Sanders, who had founded Lowe’s Assistant Store Manager Leadership Development Program and directed Lowe’s Leadership Development Sessions for the National Sales Meetings, was selected for the latter. Elledge, meanwhile, accepted Lowe’s offer of a severance package and early retirement.

 

Elledge then sued for violations of the ADA and ADEA (ADEA we won’t cover). The District Court granted summary judgment for Lowe’s and Elledge appealed.

 

II

Court’s Reasoning Failure to Accommodate

 

  1. A function of the job is essential as long as it bears more than a marginal relationship to the job at issue.
  2. In determining the essential functions of a job, consideration is given to the employer’s judgment. That is, the decision about a job’s essential function belongs in the first instance to the employer and merits considerable deference from the courts.
  3. A court performing the essential functions inquiry must consult the full range of evidence bearing on the employer’s judgment, including the testimony of senior officials and those familiar with the daily requirements of the job.
  4. No reason exists to doubt the District Court’s conclusion that the essential functions of plaintiff’s job included: standing or walking in excess of four hours each day; traveling to all supervised stores; and working in excess of eight hours each day.
  5. The official job description stated that a candidate must be capable walking frequently, defined as 34-66% of working hours, and driving continuously, defined as 67-100% of working hours. These requirements meant that the plaintiff had to push his mobility and stamina on days when his job required him to walk 66% of the time as well on days he had to drive almost without ceasing.
  6. Plaintiff’s own testimony revealed that his job would not possible without significant amount of driving and walking. That testimony was backed up by plaintiff’s supervisor’s testimony.
  7. When it comes to essential functions of the job, what matters is testimony about the day-to-day regimen of the job. Here, the testimony is clear that plaintiff had to work in excess of eight hours each day with respect to the day-to-day regimen of the job.
  8. For a person to be a qualified individual under the ADA, they have to perform the essential functions of the job with or without reasonable accommodations. No serious dispute exists that plaintiff could not perform the essential functions of the job without reasonable accommodations.
  9. Plaintiff turned down accommodations offered by Lowe’s including: not taking advantage of light work accommodation; not complying with his doctor’s orders with total consistency; refusing even to try using a motorized scooter to aid his store walk-throughs; and without receiving formal clearance through the interactive process, crafting his own accommodation by making arrangements with associates who usually accompanied him on store visit for them to drive him back and forth. In short, plaintiff accepted or created certain accommodations, rejected others and pushed himself beyond the limits of his doctor’s orders.
  10. To the extent an employee can be accommodated through a variety of measures, it is the employer exercising sound judgment that possesses the ultimate discretion over how that will be done.
  11. Provided the employer’s choice of accommodation is reasonable, a court may not substitute its own judgment for the employer’s choice.
  12. Plaintiff’s manifest need to disregard his physician as well as him creating accommodations outside the interactive process created the situation that Lowe’s could reasonably assume meant the plaintiff had limited long-term potential.
  13. After plaintiff’s four separate knee surgeries in almost as many years, Lowe’s was also reasonable in concluding that the light duty accommodation was no longer viable. With no tangible signs of improvement, Lowe’s could not have been expected to allow a dramatic reduction in the work requirement indefinitely.
  14. Plaintiff rejected the scooter accommodation. As such, Lowe’s was under no obligation to extend an offer for other accommodations.
  15. Plaintiff’s arrangement to have another employee drive him to his stores is not something that Lowe’s had to recognize as reasonable because an employer need not change a job’s essential functions or split them across multiple employees.

 

III

 

Court’s Reasoning Mandatory Reassignment Is Not Required by the ADA

 

  1. Other Circuits and the interpretive guidance of the EEOC persuasively recognize that reassignment is an accommodation of last resort.
  2. Allowing other reasonable forms of accommodation to take precedence over reassignment protects the employer’s discretion over hiring. That discretion is what makes it possible for the employer to discharge its responsibility to promote workplace stability and workforce changes over time and to reward merit through predictable advancement. It is also fundamental to the employer’s freedom to run a business in an economically viable way.
  3. Reassignment as a last resort also encourages employers to take reasonable measures to accommodate their employees with disabilities in the position they already hold. The employee is saved from being hurled into an unfamiliar position with a different set of demands. Rather, the employee is allowed to maintain and grow the investment he has already made and his present job.
  4. Deemphasizing reassignment helps preserve a fair balance in the relationship between an employee with a disability and his colleagues. Reassignment is unique in its potential to disrupt the settled expectations of other employees.
  5. The ADA does not require an employer to reassign an individual with a disability where that individual would bump another employee from his position or block reasonable longtime workplace expectations.
  6. Holding reassignment in reserve for unusual circumstances adds to the confidence of other employees that the misfortune of a colleague will not unfairly deprive them of opportunities for which they themselves have worked for.
  7. The Supreme Court has never held that mandatory reassignment is required by the ADA.
  8. The decision of the Supreme Court, U.S. Airways v. Barnett1811856868200– holding that the ADA did not require bumping of an employee no longer qualified to do his current job-, did not require employers to construct preferential accommodations maximizing workplace opportunity for employees with disabilities. Instead, it does require that preferential treatment be extended if necessary to provide employees with disability the same opportunities as employees without disabilities.
  9. The Supreme Court in Barnett talked about the value of stability and employee expectations as being the most important reason justifying the precedence of the employer’s seniority-based system over an employee’s with a disability otherwise valid right to reassignment. Such an interest must be jealously guarded as they represent an employee’s personal costly investment in their own careers.
  10. Lowe’s merit-based approach examines an employee’s record of experience and qualifications as well as their performance and interview settings.
  11. Lowe’s hiring process represents continuous effort to identify talent interdepartmentally and provide special training and attention to prime its most competent employees for promotion into the heightened responsibilities of director level positions. The process is on its face disability neutral. The process invites, rewards, and protect the formation of settled expectations regarding hiring decisions. It is also reasonable, orderly, and fundamentally fair for directing employee advancement within the company. So in the ordinary run of cases, reassignment in contravention of such a policy is not reasonable.
  12. The Eighth Circuit has held that a best qualified hiring system falls under the same principle as a seniority-based system and therefore is a perfectly reasonable approach. The 11th Circuit, which we discussed here1821866969201, has held the same.
  13. Lowe’s had several conversations with the plaintiff about alternative career opportunities. They also agreed to network on his behalf regarding any and all positions in which he might express an interest. In short, there are many examples of Lowe’s proactively working to ensure that plaintiff did not despite his disability, receive anything less than the same workplace opportunities as other employees without disabilities.
  14. Lowe’s had valid reasons for hiring other people for the jobs that plaintiff applied for.
  15. Lowe’s also encouraged plaintiff to accept a manager role. While that role would not have paid as much, the responsibilities would have been lighter and the jobs easier to obtain. Such roles could have served as a track for the plaintiff to gain new invaluable experience that would return him to the directorship level in a position more suited to his physical condition. Just because plaintiff declined that offer, does not mean that Lowe’s did not provide him meaningful opportunity to continue his working relationship with the company.

 

IV

 

Thoughts/Takeaways

 

  1. There is clearly a Circuit Court split between the Seventh, which, as we discussed here1831877070202, demands mandatory reassignment, and the Fourth and Eleventh circuits, which say that mandatory reassignment is not called for by the ADA. The 10th Circuit in Lincoln v. BNSF Railway Co.1841887171203, comes closer to the Seventh but allows a very small out for the employer.
  2. What happens next with regards to the United States Supreme Court very much depends upon what side of the aisle you are on. If you are on the plaintiff’s side, the clear preference is to allow each Circuit to play it out. If you lose, do not take it to the Supreme Court. On the other hand, if you are on the defense side, it is certainly in your interest to petition the Supreme Court for a writ of certiorari if you lose at the Circuit Court level. The reason being that there is absolutely no doubt in my mind, very little anyway, that the Supreme Court will take the view of the Fourth Circuit when it comes to mandatory reassignment for two reasons. First, people with disabilities do not fare well at the Supreme Court when it comes to employment situations. Second, the Fourth Circuit in particular, did a very nice job of offering policy reasons why reassignment should be a last resort. Given the configuration of the current Supreme Court, I think the Supreme Court by at least a 6-3 margin, if not more, will be very receptive to those policy reasons detailed in the Fourth Circuit opinion. So while as a practical matter there is a Circuit Court split, the handwriting is clearly on the wall as to what the U.S. Supreme Court will ultimately decide. That means unless you are in the Seventh Circuit and you are representing an employer, you are perfectly justified in setting up a competitive system for people with disabilities when it comes to reassigning them to another job when they no longer can do their current job with or without reasonable accommodations. That said, very helpful if the employer engages in a process, as Lowe’s did, to help the employee with a disability obtain a suitable position rather than leaving it up entirely to the employee’s own devices.
  3. There are real benefits for exploring all possible accommodations as Lowe’s did. Companies that demonstrate a strong effort to accommodate a person with a disability fare very well when it comes to successfully defending failure to accommodate claims.
  4. A few other things about the opinion are interesting. First, the court does not mention the Seventh Circuit opinion1851897272204 requiring mandatory reassignment at all. Second, the court could have also said that the plaintiff was no longer qualified because they turned down perfectly reasonable accommodations. Finally, they could’ve also said that since the plaintiff essentially blew up the interactive process by turning down accommodations and creating their own outside of the interactive process system, the plaintiff loses because he blew up the interactive process.
  5. Employees do not get the right to invent their own accommodations outside of the interactive process.
  6. Employers need to document any and all efforts to engage in the interactive process.
  7. While the employer’s determination of what is an essential function of the job gets preference, it is still the day-to-day happenings on the job that ultimately matter.
  8. Transferring an employee to a lower paying job when they can no longer do their current job with the without reasonable accommodations can be a reasonable accommodation.
  9. Don’t forget about using the Job Accommodation Network1861907373205 to help sort out what accommodations are possible.

 

Be safe!

Today’s blog entry is a case from the 11th Circuit that I have blogged on before at both the Circuit Court level and the District Court level. A link to both can be found here185180191118201. On November 10, 2020, the 11th Circuit vacated their previous opinion issued back in March and re-issued another one. Since we have discussed this before, no need to go into the facts, which simply put involves a deaf individual’s inability to access legislative streaming of the Florida legislature. So, the categories for this blog entry are: court’s reasoning sovereign immunity; court’s reasoning Ex Parte Young; court’s reasoning Rehabilitation Act sovereign immunity; concurring opinion; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Majority Opinion ( Judge Martin)

Court’s Reasoning Sovereign Immunity

 

  1. Title II of the ADA explicitly abrogates 11th amendment immunity.
  2. Explicit abrogation of sovereign immunity isn’t enough, the legislation must also have congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.
  3. In figuring out whether abrogation is congruent and proportional, a three-step test is used: 1) identifying what right or rights Congress sought to enforce when it enacted the ADA; 2) determining whether there was a history of unconstitutional discrimination to support Congress’s determination that prophylactic legislation was necessary; and 3) whether title II is an appropriate response to that history and pattern of unequal treatment.
  4. In a footnote, the court noted that the Supreme Court has also said, here186181192119202, that sovereign immunity can also be waived if there is an independent violation of the 14th amendment.
  5. If the identified right triggers heightened scrutiny or is deemed fundamental, then Congress has greater latitude to abrogate immunity.
  6. The 11th Circuit has held that sovereign immunity was waived where a right to education was at stake even though that particular right is not subject to heightened scrutiny. In particular, the 11th Circuit recognized that the constitutional right to equality in education, though not fundamental, is vital to the future success of our society. That is, denying persons with disabilities the right to equality in education affected their future ability to exercise and participate in the most basic rights and responsibilities of citizenship, including but not limited to voting and participation in public programs and services.
  7. It doesn’t make sense that Congress could validly abrogate sovereign immunity to protect the rights of students with disabilities to get an education but could not do the same to directly enable those students to participate in the democratic process.
  8. Defendants gave the court no plausible reason to believe that the 11th Circuit decision saying that sovereign immunity was abrogated when it came to education was wrongly decided or that its reasoning should not apply.
  9. Congress’s identification of discrimination in public services and voting establishes the necessary history for discrimination with respect to accessing public legislative information relevant to voting.
  10. Title II of the ADA provides an appropriately limited response to remedy the history of unequal treatment. The burden of adding captioning to legislative videos already provided to the public removes a complete barrier to that information and can be accomplished with limited cost and efforts. In that way, the remedy is a proportionate and reasonable modification of the service already provided and does not change the nature of the service whatsoever.
  11. If the costs or effort proved to be prohibitively burdensome, affirmative defenses under title II exist.
  12. When Congress enacted title II of the ADA, it had evidence before it that deaf people often cannot access government meetings either due to a lack of interpreters or other necessary accessibility features.
  13. Accordingly given the evidence and the limited nature of the remedy, Congress validly abrogated sovereign immunity under the standard for important rights that nonetheless receive only rational basis review.

 

II

Court’s Reasoning Ex Parte Young

 

  1. Where a plaintiff challenges a state official’s action on federal grounds, Ex Parte Young allows the plaintiff to seek prospective injunctive relief.
  2. Since the plaintiff seek an injunction based upon violations of a federal law, the ADA, the exception for not allowing a plaintiff to seek injunctive relief for violations of state law does not apply.
  3. In a footnote, the court noted that plaintiffs are not requesting any special treatment. Instead, they are requesting equal access to information to which the rest of the population already has access. So, persons with disabilities are being placed on an equal footing rather than being given an unfair advantage. In other words, plaintiffs are merely seeking equal footing with the rest of the hearing public. It certainly would be possible that the legislature could remove the links for the legislative streaming altogether. However, so long as they keep the links up they must comply with title II of the ADA by captioning those videos. Any other conclusion would allow the Florida legislature to avoid compliance with federal statutes and undermine the integrity of the statutory scheme.

 

III

Court’s Reasoning Rehabilitation Act and Sovereign Immunity

 

  1. A state waves its sovereign immunity if they receive federal financial assistance.
  2. In cases involving factual challenges to subject matter jurisdiction, the District Court must give the plaintiff an opportunity for discovery appropriate to the nature of the motion to dismiss.
  3. In the 11th amendment context, a District Court may order limited discovery before deciding whether sovereign immunity requires dismissal.
  4. The 11th Circuit generally requires that plaintiffs have an opportunity to conduct jurisdictional discovery prior to dismissal.
  5. Since this opinion says the legislative defendants are not entitled to sovereign immunity for plaintiff’s ADA claim, they are required to answer the complaint and provide discovery on plaintiff’s ADA claims.

 

IV

 

Concurring Opinion (Judge Tjoflat)

 

  1. Congress validly abrogated sovereign immunity regardless of whether the right implicated is fundamental.
  2. Plaintiffs are entitled to pursue injunctive relief under Ex Parte Young.
  3. The District Court did not adequately explain its reason for denying the Florida legislature’s motion to dismiss the Rehabilitation Act claims. Accordingly, that part of the case should be remanded to the District Court for further explanation before deciding whether to affirm its ruling.
  4. The District Court’s analysis of dismissing the motion to dismiss for the Rehabilitation Act claim was inadequate for two reasons. First, the District Court should not have suggested that it was making only a temporary ruling that might be revisited in the future because issues of immunity should be resolved at the earliest possible stage. Second, the District Court completely ignored the affidavit regarding direct financial assistance as self-serving, as all affidavits are, and it also did not mention the Florida legislature’s argument rebutting the plaintiff claims of indirect financial assistance. So, the proper course would be a limited remand on the Rehabilitation Act claim for further explanation of the District Court’s reasoning for denying the motion to dismiss the Rehabilitation Act claims. Absent more explanation, it can’t be properly decided whether the District Court abused its discretion in dismissing the claim.

 

V

Thoughts/Takeaways

 

  1. As we have discussed previously, both sovereign immunity and equal protection claims very much depend upon what equal protection class persons with disability fall into. People with disabilities are a moving target in that respect. Unlike other groups, the equal protection class that people with disabilities fall into varies depending upon the facts of the case per this case187182193120203. So, people with disabilities are in the rational basis class with respect to employment per this case188183194121204. However, they are at least in the heightened scrutiny class if not higher when it comes to accessing the courts per this case189184195122205.
  2. Equal protection jurisprudence is incredibly divisive because it separates out people for different levels of protection depending upon their immutable characteristics, whether they are born with it or develop it later in life.
  3. For why people with disabilities may fall into a rational basis class, take a look at this case190185196123206.
  4. The equal protection classes are also a bit of a moving target because not every situation involving rational basis review results in a victory for the government when persons with disabilities are adversely affected by governmental action. That rational basis review still results in an equal protection victory for persons with disabilities may have started with City of Cleburne v Cleburne Living Center191186197124207.
  5. The 11th Circuit continues its strong trend of favoring the rights of persons with disabilities when disability rights issues come before them.
  6. I would have to do some research, but it would surprise me if every other Circuit has reached the same conclusion as the 11th Circuit with respect to education and sovereign immunity under the ADA.
  7. Undue burden is an affirmative defense.
  8. Where a defendant claims they do not receive federal financial assistance, it is perfectly within the realm of the court’s discretion to conduct limited discovery to ascertain whether that is the case.
  9. This case could conceivably head up to the United States Supreme Court. As I have mentioned before, people with disabilities frequently win before the Supreme Court when employment matters are not involved. Also, it is far from clear whether a fundamental right is not involved here. After all, accessing legislative proceedings is fundamental to being a good citizen.
  10. The placing of people with disabilities in the rational basis class in Board of Trustees of the University of Alabama v. Garrett192187198125208 in the first place was not based on sound logic. Cleburne was ostensibly a rational basis decision, but it spent pages upon pages discussing why the discrimination by the town of Cleburne against persons with disabilities was inappropriate. You don’t usually see that in typical rational basis cases. If anything, that case might be better looked at as a rational basis plus situation. In Heller v. Doe193188199126209, the U.S. Supreme Court specifically stated that the parties had agreed that the person with disabilities in that case fell into the rational basis class. That is not to say that persons with disabilities may not have had some difficulty with a rational basis classification with respect to employment because state employers for years have been very good about hiring people with disabilities (if you are wondering why many employers have trouble retaining and hiring people with disabilities, check out this blog entry194189200127210 that I wrote for the Federal Bar Association blog) .
  11. While I have never worked with one of the attorneys on this case, Courtney Cunningham, I do stay in touch with him.
  12. I have not had a chance to check it myself, but the case gets even more interesting if the Florida legislature removed the videos from its websites (they may have already done so). If that is the case, then the question becomes whether the litigation is moot and likely to recur. I would argue that it is certainly likely to happen again.
  13. The costs for captioning in real-time or afterwards are decreasing all the time now that automatic speech recognition technology is coming into its own.

 

Colonel Johnny

Before turning to the blog entry of the day, today is Veterans Day. I want to wish everybody who fought for our country or has family that served in the military a good Veterans Day. I also want to wish everyone a happy Veterans Day.

 

The case of the day is from the Northern District of Alabama decided on July 21, 2020. It is Smith v. Morgan18067671181971186767. It is an interesting case involving a deaf individual with a service dog, a business that didn’t know what the service dog rules were but immediately leapt in to fix it when they found out what went wrong, the police, and the city attorney. I chose the case because you don’t often see service animals with respect to the deaf, though I have one. Also, it is an interesting representation of what can happen when a business races to fix the problem even when non-architectural barriers are involved. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning the case is not moot; court’s reasoning that the injunction is not necessary; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the sections.

 

I

Facts (taken directly from the opinion)

 

On May 4, 2017, Amber stopped at an Exxon gas station in Hanceville, Alabama with her husband, Chad Smith, and their two kids. The Smiths regularly stop at the Hanceville Exxon when they visit Chad’s parents in the area. Chad and the kids entered the store first. Amber followed a few minutes later with her service dog, Sassy. A store employee quickly approached Amber and told her that dogs were not allowed in the store. Doc. 51-2 at 6. Amber, of course, could not understand the employee. Chad intervened and explained to the employee that Amber was deaf and that she used Sassy as her service dog. Id. The employee then demanded proof that Sassy was a service dog, to which Chad responded that it is unlawful to request a service animal’s papers. Id. At that point, the employee “got made and stormed off.” Id. The employee went to consult with another employee—Ashleigh Chaffin. Doc. 51-3 at 4. Chaffin says she had a conversation with Chad too, id. at 5, but Chad does not remember this conversation, doc. 51-2 at 6. According to Chaffin, she *4 asked Chad if he had papers to prove that Sassy was a service animal, to which Chad again replied that it was unlawful to ask for a service dog’s documentation. Doc. 51-3 at 5. Chaffin told Chad she was going to call the police for “clarification.” Id. 4 3 4 3 In her deposition, Chaffin insists that neither she nor the first employee would have asked to see Sassy’s papers; they would have asked only if Sassy had papers. Doc. 51-3 at 5, 8. That is not how Chad remembers it; he specifically remembers that the first employee wanted to see Sassy’s papers. Doc. 51-2 at 6. On a motion for summary judgment, Chad’s memory governs. Either way, the question was unlawful. See 28 C.F.R. § 36.302(c)(6). 4 In a declaration, Chaffin elaborates on her decision to call the police: “[I]t was not clear to me at the time how I was to determine if the animal was a service animal without some documentation, and I did not want to violate any health department regulations concerning the presence of animals in establishments that serve food.” Doc. 51-7 at 3. After Chaffin announced that she was calling the police, Amber and Chad approached the counter to purchase a few items from the store. Doc. 51-2 at 7. When Amber and Chad tried to pay, however, Chaffin allegedly told the cashier: “We’re not selling them anything. Don’t sell them nothing.” Id. at 8. Amber and Chad waited at the counter until the police arrived. Id. Three police officers responded to the call. Doc. 51-1 at 6. Like the employees, the police questioned whether Sassy was a service animal, and asked to see documentation. Doc. 51-2 at 10. Again, Chad responded that it is unlawful to ask to see documentation for a service animal. Id. The police decided to call the city attorney. Id. at 5 11; doc. 51-3 at 10. *5 According to Chad, the city attorney advised that the store was allowed to ask to see Sassy’s papers, and the Smiths had to produce those papers. Doc. 51-2 at 12. At that point, Amber showed the police a certificate from a website that said Sassy was a service animal. Id. Even after producing the certificate, the police forced Amber 5 2 Smith v. Morgan Civil Action Number 5:18-cv-01111… and Sassy to stay with them by the front of the store while Chad paid for their items. Id. The Smiths then left the store. The Smiths intend to return to the store, because it is the most convenient gas station when they visit Chad’s parents, but they have not yet done so. Id. at 13-14. 5 Wilson recalls that the city attorney (correctly) advised them that they could not ask for proof of a service animal. Doc. 51-4 at 9. This would be a devastating confession, since they continued to seek proof that Sassy was a service animal after receiving the city attorney’s advice. See doc. 51-3 at 7.

 

Wilson, the manager and majority-owner of the store, claims that “[i]mmediately after the Smiths left,” she looked up the law about service animals and learned that businesses “could not ask for proof that animals brought into the store were service animals.” Doc. 51-6 at 4. The Smiths promptly retained counsel, and one week after the incident they mailed a notice to preserve evidence to the defendants. Doc. 51-3 at 21. After receiving this notice, Wilson posted a sign on the store window reading, “Service Animals Welcome.” Doc. 51-4 at 5; doc. 51-3 at 10. She also printed a summary from the Department of Justice (“DOJ”) of the rules regarding service animals, and *6 placed it near the register. Doc. 51-4 at 6; Doc. 51-3 at 23-25. Furthermore, Wilson required the store’s employees to sign an agreement indicating that they had reviewed the DOJ’s summary. Doc. 51-4 at 13; doc. 51-6 at 14-28 (showing that the first employee signatures occurred on May 22, 2017). 6 6 6 Also on May 22, two of the officers who responded to the scene drafted statements memorializing their memory of the incident. Doc. 51-4 at 20-21. Either Wilson or Chaffin asked the officers to draft the statements. See doc. 51-3 at 10. The timing of the officers’ statements further corroborates that the defendants sprang into action after they received notice of legal action.

 

Plaintiff lawsuit alleged violations of the ADA and various state law claims. In particular, plaintiff asked for a declaratory judgment stating that the defendant violated the ADA as well as an injunction ordering them to modify their policies and practices to be consistent with the ADA to allow her full and equal access to the store. Defendants moved to dismiss the ADA claims arguing that the claims were now moot because they had changed their policy to comply with the law. The court denied that motion and the defendants moved for summary judgment.

 

II

 

Court’s Reasoning the Case Is Not Moot

 

  1. A case is not generally mooted when a defendant voluntarily ceases a challenged conduct.
  2. Voluntary cessation only moots a case where the defendant meets the heavy burden of showing that it is absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.
  3. In the 11th Circuit, three factors are considered with respect to the probability of recurrence and they are: 1) whether the challenged conduct was isolated or unintentional as opposed to a continuing and deliberate practice; 2) whether the defendant’s cessation of the offending conduct was motivated by a genuine change of heart or timed to anticipate suit; and 3) whether in ceasing the conduct, the defendant has acknowledged liability.
  4. While the defendant admitted they asked customers with service animals for documentation in the past, at the time defendant did not know the ADA prohibited asking such questions. Therefore, the challenged conduct was continuing but unintentional.
  5. Evidence shows that it was not until after the defendant received notice of a potential lawsuit that they posted the sign welcoming service animals and required employee to sign the agreement acknowledging familiarity with the rules concerning service animals. Therefore, defendants’ actions were motivated by the impending lawsuit. Reform timed to anticipate or blunt the force of a lawsuit offers insufficient assurances that the practice sought to be enjoined will not be repeated.
  6. The defendants explicitly conceded that they cannot ask for documentation of a service animal, and that they must provide persons with disabilities full and equal access to the store. As such, that gives the court little reason to fear future injury.
  7. The main bulwark against recurrence of the requirement is that new employees read DOJ’s summary of the law regarding service animals. That is hardly a foolproof solution. Defendants testified that the store has a lot of turnover. All it takes for this bulwark to fail is one new employee falsely claiming to have read the summary or the store forgets to tell an employee about the policy. After all, defendants have consistently argued that most people have no idea you cannot ask for a service animal’s papers. So, it is entirely conceivable that the defendant could also grow weary of the policy and simply revert to their own practice. As such, telling the court that the challenged conduct no longer exist in disclaiming any intention to revive the practice is not enough to moot the case.

 

III

Court’s Reasoning That an Injunction Is Not Necessary

 

  1. Evidence shows that the defendant violated the ADA unknowingly.
  2. Evidence indicates that the defendants intend to respect the law regarding service animals going forward.
  3. Plaintiff has not presented any evidence challenging the defendant’s evidence that they have followed the laws since there encounter with her.
  4. Where the court to issue an injunction, it would not order the defendant to do more than they already doing.
  5. The analysis of whether a declaratory judgment is warranted is the same as the analysis for an injunction. After all, courts are not in the business of pronouncing past actions that have no demonstrable continuing effect right or wrong.

 

IV

Thoughts/Takeaways

 

  1. The defendant claimed that she could not be held individually liable as the ADA does not provide for individual liability. However, the defendant was the 60% owner of the store and therefore, she can be held liable under the ADA as the owner of the place of public accommodation.
  2. In the summary section before Judge Kallon gets into his facts and reasoning, he says that a place of public accommodation can only ask two limited questions when it comes to service animals: 1) is the animal required because of a disability; and 2) what work or tasks the animal has been trained to perform. The two questions are correct but saying that only those two limited question can be asked is not. If you look at 28 C.F.R. §36.30218168681191981196868(c)(6), you see that the phrase used is “two inquiries,” and not two questions. Inquiries are a broader category than questions.
  3. This is not an architectural barrier case. However, the case shows how fixing the problem promptly can forestall liability even in a non-architectural barrier case.
  4. You don’t see a lot of service animals with respect to the deaf, but they absolutely exist. I was talking to a person who is deaf recently and familiar with service dogs and the deaf. She told me that with respect to the deaf who have service dogs, they are commonly used in the house and not outside. It was nice to hear that I am not the only deaf person using my service dog in that way.
  5. I am not sure I follow why a declaratory judgment was not in order even though an injunction was not. The violation of the ADA was crystal clear. If the court had granted the declaratory judgment, then plaintiff would have been able to obtain attorney fees as the prevailing party even as the court denied the injunction. I am not sure why the declaratory judgment decision and the injunction decision necessarily have to be the same. I would love to see comments from readers doing litigation on the question of whether a declaratory judgment and an injunction must move in lockstep with each other.
  6. By using the search engine for my blog, you can find lots of relevant entries with respect to service animals, such as here18269691201991206969.
  7. Excellent move by the police getting the city attorney involved. Apparently, the city attorney made the right call.
  8. Ignorance of the law may be no excuse, but in this case it helped the defendant escape liability, especially since they raced to fix the problem once they were aware of their noncompliance.
  9. It is unclear what the court is referring to when it talks about the DOJ summary that the defendant has its employees read. Are they talking about the DOJ frequently asked questions document or something else? If they are talking about the frequently asked questions document, that document contradicts its final regulations with respect to whether the questions are limited to only two in number or whether it is inquiries that are limited to two in number. Under Kisor v. Wilkie18370701212001217070, discussed here, final regulations will prevail over a frequently asked questions document.
  10. Police forces definitely need training on the service animal rules for title III entities. In this case, the police mistakes with respect to what the law are required were alleviated by the city attorney. The lesson there is always get knowledgeable legal counsel involved when necessary and the earlier you do so the better.

Before starting on the blog entry of the day, if you have not already voted do so. Today’s blog entry is a case, Exby-Stolley v. Board of County Commissioners, Weld County, Colorado17918111819811820567, that I blogged on almost 2 years ago. About two years ago, the 10th Circuit came down with a decision, which I discussed here18018211919911920668, holding that failure to accommodate claims required an adverse action. It turns out that the panel decision was reheard by the entire 10th Circuit. On October 28, 2020, it vacated the panel decision, reversed the District Court’s judgment, and remanded for a new trial. It is a 135 page decision complete with a majority opinion and two dissenting opinions. No need to cover the facts since we discussed all of that in the previous blog entry, here18118312020012020769. So, the categories for this blog entry are: majority opinion (Judge Holmes); thoughts/takeaways on the majority opinion; dissenting opinion (Judge McHugh); thoughts/takeaways on Judge McHugh’s dissenting opinion; dissenting opinion (Judge Hartz); and thought/takeaways on Judge Hartz’s dissenting opinion). Of course, the reader is free to read any or all of the categories.

 

I

Majority Opinion Holding That a Failure to Accommodate Claim Does Not Require an Adverse Action (Judge Holmes)

 

  1. The language “adverse employment action,” does not expressly appear in the plain terms of the failure to accommodate statutory provision nor in the general rule of 42 U.S.C. §1211218218412120112120870(a).
  2. A court cannot add language to a statute’s plain text.
  3. Requiring adverse action for failure to accommodate claims is at odds with pre-existing 10th Circuit precedent; EEOC’s views; and regularly followed practices of all of the other Circuits.
  4. Prior 10th Circuit precedent has repeatedly and invariably talked about the prima facie case for an ADA failure to accommodate claim without mentioning adverse employment action requirements.
  5. The 10th Circuit has made clear that articulations of the prima facie case for failure to accommodate claim exhaustively details the essential elements of that claim.
  6. It must be that the reason 10th Circuit cases omit the adverse employment action element from their comprehensive statements of the prima facie case for ADA failure to accommodate claims is because no such element exist in ADA failure to accommodate claims.
  7. When a cause of action requires an adverse employment action, courts are not shy to say as much.
  8. Failure to accommodate claims are a freestanding claim of discrimination based upon a failure to meet an affirmative duty. Title VII has no such freestanding claim.
  9. Prior cases have specifically mentioned that an adverse employment action is not an element of failure to accommodate claims when discussing other statutes where an adverse employment action was a requirement.
  10. On multiple occasions, the 10th Circuit has stated that the ADA establishes a cause of action for employees with disabilities whose employer failed to reasonably accommodate them. That general statement says nothing about the need for employees with disabilities to also demonstrate an adverse employment action before their failure to accommodate claim will be viable.
  11. The duty to make reasonable accommodations is an affirmative unvarnished obligation of the employer. Accordingly, it is hard to imagine that a federal statute placing an affirmative or unvarnished obligation on the employer would allow the employer to escape consequences for breaching that obligation so long as that employer does not take some additional adverse action. Accordingly, the court is disinclined to read the ADA in such an unnatural manner.
  12. In prior discussions of the overarching feature of the ADA discrimination claim, the 10th Circuit has made clear that an ADA failure to accommodate claim does not contain adverse employment action requirements.
  13. Prior 10th Circuit cases have made clear that in failure to accommodate claims as soon as the employer with adequate notice of the employee with a disability request for some accommodation failed to provide a reasonable accommodation, that is the point in time where the employer has discriminated against an individual with a disability because of his or her disability.
  14. So, 10th Circuit precedent is such that once a plaintiff has established an employer’s failure to reasonably accommodate the disability, plaintiff does not need to go further and establish they also suffered an adverse employment action.
  15. Disparate treatment claims and failure to accommodate claims are two different kettles of fish. Disparate treatment claims do require an adverse action but failure to accommodate claims do not because the two types of claims are very different from each other. In disparate treatment claims the allegation is that the employer acted. On the other hand, in failure to accommodate claims, the allegation is the employer failed to act.
  16. The ADA’s reasonable accommodation mandate focuses on compelling behavior rather than policing an employer’s actions. Accordingly, it makes little sense to require the showing of an adverse employment action as part of a failure to accommodate claim. That is, it verges on the illogical to require failure to accommodate plaintiffs to establish their employer acted adversely toward them when the fundamental nature of the claim is that the employer failed to act.
  17. Since failure to accommodate claims concern discrimination in the form of a failure to meet an affirmative obligation, there is no action that must be shown to have been taken with any particular intent. That is, once an employee makes an adequate request for an accommodation thereby putting the employer on notice, an employer’s failure to offer reasonable accommodation to a qualified person with a disability is unlawful discrimination regardless of whether the employer had any intent to do so.
  18. Introducing an adverse employment action requirement into an ADA failure to accommodate claim would significantly frustrate the ADA’s remedial purposes.
  19. The purpose of the ADA to promote full participation and equal opportunity for people with disabilities are effectuated in meaningful part by the affirmative obligation the ADA imposes on employers to make a reasonable accommodation.
  20. The ADA requires preferences in the form of reasonable accommodations needed for those with disabilities to obtain the same workplace opportunity as those without disabilities automatically enjoy.
  21. The reasonable accommodation requirement is best understood as a means by which the barriers to the equal employment opportunity of an individual with a disability are removed or alleviated.
  22. Reasonable accommodations provide the individual with disabilities an equal employment opportunity. Equal employment opportunity means the opportunity to attain the same level of performance or to enjoy the same level of benefits and privileges of employment as are available to the average similarly situated employee without a disability.
  23. The purposes and the ability of the ADA’s reasonable accommodation mandate to promote disability inclusion would be significantly frustrated by including an adverse employment action as a necessary element of a failure to accommodate claim. That is, it would allow for employers not being held accountable for failing to reasonably accommodate their employees with disabilities so long as an adverse employment action was also not involved. How could the ADA’s reasonable accommodation mandate meaningfully ensure that qualified individuals with disabilities denied a reasonable accommodation obtain the same workplace opportunity as those with disabilities automatically enjoy and enjoy the same level of benefits and privileges of employment as people without disabilities, if the statute mandates that such individuals only get a remedy when their employers have also subjected them to an adverse employment action. The very asking of the question is the answer of it. The answer is simply no. The ADA could not meaningfully effectuate its full participation and equal opportunity purposes with an adverse employment action requirement.
  24. Imagine a judge of the 10th Circuit (emphasis mine), hires a blind law clerk who can with without accommodations can only write two draft judicial opinion per month. Also, assume that the widely accepted standard for a successful law clerk is one who can write three draft judicial opinions per month and the blind law clerk can reach that level with the help of a reasonable accommodation. Also assume that a qualified low-wage personal reader would constitute a reasonable accommodation under the ADA and that such a reader would not impose an undue hardship on the office operations of the blind law clerk’s employer. Further, imagine that the judge denies the blind law clerk’s request for this assumed reasonable modification and refuses to discuss any other possible reasonable accommodation by telling the law clerk that drafting two opinions per month will be just fine even though the other judge’s law clerk regularly meet the three opinion monthly target. Such an employee has suffered no adverse employment action and would not have a claim if an adverse employment action requirement was layered onto failure to accommodate claims. That doesn’t make any sense because that law clerk would not be a full participant or fully included in a service, program, or activity because they cannot utilize the program, service, or activity in a similar way as person without disabilities. Further, that law clerk has been prevented from competing on an equal basis with their fellow law clerk who do not have disabilities and enjoying the same level or privileges of employment as those law clerks. The court is simply unwilling to adopt a reading of the ADA’s failure to accommodate mandate that yields such a result.
  25. An interpretation of the ADA’s failure to accommodate claims that would permit a result where an employee is denied an opportunity to compete on an equal basis with her fellow employees and pursue those opportunity for which America is justifiably famous is a result to be avoided.
  26. The unvarnished obligation to accommodate a qualified person with the disability makes any adverse employment action irrelevant.
  27. The ADA is not simply concerned with shielding individuals with disabilities from significant workplace harms but also with reasonably accommodating limitations of their disabilities so they may provide the nation with the benefit of their consequently increased productivity.
  28. The ADA’s objective is to ensure that qualified individuals with disabilities are placed on equal grounds with other employees in regards to the covered employment relationship.
  29. In the 10th Circuit, a person with a disability has a right to a reassignment rather than the right to be considered for a reassignment where the employee is no longer able to do the original job with or without reasonable accommodations. Requiring an adverse action would make a mockery of the right to reassignment cases.
  30. The ADA simply cannot be read to require that employees with disabilities are only allowed to receive accommodations if they also suffer an adverse employment action. Such a construction of the statute significantly restricts the scope of the ADA’s reasonable accommodation obligation through the use of language (adverse employment action), that does not even appear in the statute’s text.
  31. The EEOC has also made it clear that failure to accommodate claims do not require an adverse action.
  32. 29 C.F.R. §1630.918318512220212220971(a) not only omits any mention of an adverse employment action component but also implicitly rejects by this omission the notion that such a component of failure to accommodate claims even exists.
  33. Indeed, absent an undue hardship, the regulation explains that a covered entity violates the ADA by not reasonably accommodating an employee with a disability. Full stop (court’s words).
  34. EEOC regulations implementing title I of the ADA are entitled to a great deal of deference.
  35. EEOC’s interpretive guidance on the ADA are a body of experience and informed judgment to which courts and litigants may properly resort to for guidance. Those guidances omit any mention of an adverse employment action requirement for ADA failure to accommodate claims.
  36. Nowhere in the EEOC’s interpretive guidance extensive discussion of reasonable accommodation claims is there any discussion of reasonable accommodation claims requiring some form of an adverse employment action.
  37. The EEOC notes in its enforcement guidance that the duty to provide reasonable accommodations is a fundamental statutory requirement.
  38. When the EEOC in it guidances discusses the burdens of proof, nowhere is there any mention of the employee needing to show an adverse employment action before the proof burden shifts to the employer.
  39. In the instruction for investigator section of the EEOC guidance, an extensive set of questions investigator should inquire into while assessing whether an employee has violated the ADA by denying a reasonable accommodation is discussed. However, none of those questions relate to an adverse employment action.
  40. None of the other Circuits have regularly incorporated an adverse employment action requirement into ADA failure to accommodate claims. That is, either the Circuits have declined to incorporate an adverse employment action requirement into an ADA failure to accommodate claim or they have incorporated such a requirement in name only because the failure to accommodate is an adverse action in and of itself.
  41. The First, Fourth, Fifth, Sixth, 11th, and the D.C. Circuit either state or strongly suggest that no adverse employment action requirement in ADA failure to accommodation claims exist.
  42. The Third and the Eighth Circuits have an adverse employment action requirement into their failure to accommodate claims. However, that is in name only because a failure to accommodate is an adverse action. Cases suggesting that an adverse employment action is an additional requirement for failure to accommodate claims, including one-Samper- that we discussed here18418612320312321072 on a separate issue, are outliers.
  43. The incorporation of 42 U.S.C. §12112(a)’s terms, conditions, and privileges employment language into an ADA failure to accommodate claim is unnecessary because a failure to accommodate claim necessarily implicates and provides particularized concrete expression of terms, conditions, and privileges of employment language. In other words, a failure to accommodate claim as a matter of logic and common sense necessarily involves a qualified person with a disability terms, condition, and privileges of employment. So, it is simply unnecessary for court to expressly incorporate terms, conditions, and privileges of employment language into an ADA failure to accommodate claim.
  44. Adverse employment action as understood by precedent is not the same thing as terms, conditions, and privileges of employment.
  45. Even if a court desired to take into account terms, conditions, and probative of employment language of §12112(a) in failure to accommodate claims, that is not the same thing as imposing an adverse employment action requirement.
  46. 42 U.S.C. §1211218518712420412421173(b) is inextricably intertwined with 42 U.S.C. §12112(a)’s general rule because it underscores that a covered employer cannot discriminate against a qualified individual on the basis of disability while at the same time particularrizing and making concrete what that means through examples of what is prohibited disability discrimination in the employment context.
  47. 42 U.S.C. §12112(b) enumerated examples give concrete expression to areas of discriminatory conduct against qualified individuals with disabilities referenced in 42 U.S.C. §12112(a). As such, those example necessarily are in regard to those individual terms, conditions, and privileges of employment.
  48. Terms, conditions, and privileges of employment are part and parcel of any ADA failure to accommodate claim. Accordingly, expressly incorporating that language into failure to accommodate claims is unnecessary.
  49. Terms, conditions, and privileges of employment language in title VII serve to combat the entire spectrum of workplace discrimination. A Supreme Court decision saying as much was decided fully five years before the ADA came into effect. Accordingly, Congress is presumed to know what the phrase meant when it passed the law.
  50. The court is simply unwilling to equate language signaling the expansive sweep of the ADA’s employment related antidiscrimination mandate with an adverse employment action.
  51. Undue hardship is an affirmative defense.

 

II

Thoughts/Takeaways on Majority Opinion

 

  1. It is absolutely and completely strange to me that both the majority opinion and the dissent argued over the ADA’s applicability to a failure to accommodate a federal law clerk’s disability because neither the ADA nor the Rehabilitation Act of 1973 applies to the federal courts. I am at a loss as to how such a mistake could be made. The majority discussion of this hypothetical also impose its title II language (“program, services, and activities)”, onto a title I case, which I also find odd. Title I and title II have very different statutory provisions, final implementing regulations, guidances, and two different agencies implementing the ADA.
  2. Failure to accommodate is a separate cause of action under the ADA. That statement has significant implications for claims focusing on the interactive process because a failure to accommodate pretty much presumes a failure of the interactive process or the lack thereof.
  3. Undue burden is an affirmative defense.
  4. The possible ADA claims in a particular case are: disparate treatment; disparate impact; and failure to accommodate.
  5. If there a Circuit Court split? The majority opinion by talking about how an adverse action is an element in some Circuits in name only may be an attempt to get around a Circuit Court split. I am not sure how they get around Samper.
  6. Even though Samper is an outlier with respect to the prima facie elements of a failure to accommodate claim, I still really like the case with respect to trying to figure out whether attendance is an essential element of the job.
  7. What will the Supreme Court do? At Justice Barrett’s confirmation hearing, a blind attorney talked about how critical it was for her to have Justice Barrett help her navigate the law school’s reasonable accommodation process. Accordingly, Justice Barrett may be very attuned to how the failure to accommodate to a person with a disability is itself an adverse action.
  8. The ADA is an equal opportunity driven statute. I have always liked the starting line analogy. That is, it is up to the covered entity to get the person with the disability to the same starting line as those without disabilities. After that, it is up to the person with a disability to demonstrate what he or she can do.
  9. The 10th Circuit is one of those jurisdictions where a person no longer qualified to do his current job has the right to be reassigned to another.
  10. EEOC final regulations get Chevron deference. That doesn’t surprise me in light of Chevron v. Echazabal18618812520512521274.
  11. Essentially the majority opinion offers two ways for a court to say that an additional adverse action is not required in failure to accommodate cases: 1) the scheme of the ADA and its provisions; and 2) a failure to accommodate is an adverse action by itself.
  12. In light of Kisor v. Wilkie, discussed here18718912620612621375, it will be interesting to see how much deference the EEOC guidances mentioned in the majority opinion receive.

 

III

Judge McHugh’s Dissenting Opinion

 

  1. The qualification that discrimination must be with regard to job application procedures, hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, condition, and privileges of employment necessarily requires an additional adverse action beyond the failure to accommodate.
  2. Congress not expanding 42 U.S.C. §12112(b) when it expanded §12112(a) means that the actions in §12112(b) do not satisfy the in regard to clause.
  3. The majority opinion essentially does away with the in regard to clause.
  4. Prior decisions that the 10th Circuit are bound by does not resolve the question of whether failure to accommodate claims require an additional adverse action. The one Supreme Court case dealing with failure to accommodate claims, U.S Airways Inc. v. Barnett18819012720712721476, involved in adverse employment action. So, no controlling law from the Supreme Court exist on the question.
  5. While it is true that many cases often fail to expressly include an adverse employment action as an element of the prima facie case, the reasoning of those decisions make clear that an adverse employment action is an element of those claims.
  6. The distinction between acting and failure to act doesn’t excuse applying the statute’s plain language.
  7. A failure to act situation could easily require an adverse action.
  8. Congress did not intend to create a super human resources department to dictate an employer’s conduct irrespective of its impact.
  9. In most failure to accommodate cases, the failure to accommodate adversely impacts the conditions of employment.
  10. That the failure to accommodate must be in regard to the terms, conditions, or privileges of employment necessarily means an adverse action has to be present.
  11. With respect to the hypothetical of the law clerk, the judge’s decision to allocate work in chambers with consideration for the law clerk’s limitations is not and should not be actionable under the ADA.
  12. Congress could have made all failures to accommodate actionable. However they did not do so. Instead Congress directed that only failures in regards to the terms, conditions, or privileges of employment trigger liability under the ADA.
  13. The in regard to language strikes the appropriate balance between protection of employees with disabilities and deference to the business decisions of employers.
  14. The in regard to language is ambiguous. Therefore, the EEOC regulations cannot be said to have provided an interpretation of that language entitled to Chevron deference.
  15. The EEOC guidance documents are not entitled to any deference [Kisor] either.
  16. The in regard to clause and similar language in title VII of the Civil Rights Act (Judge McHugh said the ADA was based upon that law), strongly suggest that an additional adverse action requirement is mandated.
  17. The decisions requiring an adverse action in failure to accommodate cases were first on the board and therefore should be followed subsequently.
  18. Title VII has failure to accommodate claims in the context of disparate treatment claims with respect to religious practices. In those situations, adverse action is required.
  19. Failure to accommodate under the ADA is a freestanding discrimination claim.
  20. Hostile work environment claims also require adverse employment action.
  21. An adverse employment action can be a situation where there is a constructive alteration in the terms or conditions of employment.
  22. The in regard to clause means that discrimination must be in regard to the employment related aspect covered by §12112(a) and must cause more than de minimus harm.
  23. In the blind law clerk hypothetical, if the judge reduced the blind law clerk’s pay by one third, the failure to provide reasonable accommodation would be in regard to his or her employee compensation and would be actionable as an adverse action under the ADA. On the other hand, if the judge does not provide a reasonable accommodation but also does not take any disciplinary action against the blind clerk, the judge’s failure to provide a reasonable accommodation was not in regard to the covered aspect of employment. Similarly, if the judge terminated the blind law clerk for breaches of chamber confidentiality, then the judge has similarly has not failed to provide a reasonable accommodation in regards to employment.
  24. With respect to the blind law clerk hypothetical, if a hostile work environment ensued due to the accommodation, the blind law clerk would have a claim.
  25. Failure to accommodate claims should be analyzed under whether the failure to provide reasonable accommodation was sufficiently severe or pervasive to alter the terms or conditions of employment.
  26. While the jury instruction was too narrow because the in regard to clause covers a significantly greater swath of employment than those reflected in tangible employment actions, that does not mean there was prejudicial error by the jury instruction.

 

IV

Thoughts/Takeaways on Judge McHugh’s Dissenting Opinion

 

  1. See ¶ II 1. I don’t follow how such a glaring error is possible with respect to the applicability of the ADA and the Rehabilitation Act of 1973 to the federal judiciary. The decision does mean state courts should be on notice of the ADA’s applicability to them.
  2. The ADA is not based upon title VII of the Civil Rights Act. The ADA is based upon the Rehabilitation Act of 1973, whose remedies are hooked into title VI of the Civil Rights Act and not title VII.
  3. Failure to accommodate is a freestanding ADA claim. See also paragraph ¶ II2.
  4. If failure to accommodate claims are handled under the hostile work environment standards, many fewer people with disabilities will be able to receive reasonable accommodations. They will also have a much more difficult time of challenging the failure to receive reasonable accommodations when the employer does not grant the reasonable accommodations. Hostile work environment standards, as we have discussed previously18919112820812821577, are very difficult for a plaintiff to meet.
  5. Fear of adverse action is a major reason why persons with disabilities are very reticent about disclosing their disability. For a discussion of why that is the case, see this blog entry that I wrote for the Federal Bar Association blog, here19019212920912921678.

 

V

Judge Hartz’s Dissenting Opinion

 

  1. The 10th Circuit should refrain from discussing what is an adverse employment action because the issue was not raised before the panel or in the panel opinions. It also was not raised in any briefing on the meaning of adverse employment action for the Circuit en banc either.
  2. While an adverse employment action jury instruction may not have been necessary, it still can be useful, especially where the absence of an adverse employment action frees the jury from having to determine whether the employer acted unreasonably in failing to make the accommodation.
  3. None of the cases cited in the majority opinion are binding upon the 10th Circuit sitting as a whole. Further, those opinions are sorely lacking in their persuasiveness as none of those cases explain why there is no adverse action requirement.
  4. The government at oral argument forcibly confirmed that the in regard to language applied to failure to accommodate claims.
  5. The majority opinion runs the risk of making a federal case of every incident of discrimination in the workplace, including failures to accommodate.

 

VI

Thoughts/Takeaways on Judge Hartz’s Dissenting Opinion

 

I don’t see a disconnect between the majority opinion and saying that the in regard to clause applies. The debate among the majority and the dissenting opinions is whether the in regard to clause creates a separate adverse action requirement. That can be argued either way. It can also be argued that a failure to accommodate is an adverse action in and of itself. Certainly, anybody with a disability, including myself, who has gone through the accommodation process would certainly argue that the failure to accommodate is an adverse action that changes things for the worse  with respect to accessing his or her employment, accessing a public entity, or accessing a public entity.