With respect to title II of the ADA, and title I for that matter as well, the only way you can get damages is to show intentional discrimination. With respect to suing a governmental entity for violations of title II, what exactly is it that you have to show to get damages? A recent Rehabilitation Act case out of the 11th circuit helps answer this question. In that case, a deaf couple were told by their physician to have the wife go to a hospital to be checked out. Unfortunately, the hospital they went to had a history of discriminating against deaf persons (it had previously settled a lawsuit against them regarding a patient who was deaf). The couple that arrived at the hospital communicated primarily with each other in sign language, the wife being fluent in ASL while the husband used a combination of signed English and ASL. The wife read at a fourth grade level and the husband read at a sixth grade level, neither is unusual for people who are deaf. The husband also had difficulty reading fine print because he suffered from a vision disorder called age macro degeneration. At any rate, thanks to the prior lawsuit, which the hospital settled, any personnel had the ability to order an interpreter. Instead, despite numerous requests from the husband and wife as well as from their daughter to get an interpreter (the facts are quite extreme), no such interpreter was provided and the wife wound up having gallbladder surgery. They then brought a lawsuit alleging violations of the Rehabilitation Act as well as a claim for negligent infliction of emotional distress. Interestingly enough, there was neither a claim for violating title II of the Americans with Disabilities Act nor was there a claim for an intentional tort.

The above facts be found at Liese v. Indian River County Hospital District, 701 F.3d 334 337- 341.

The 11th circuit was faced with two issues. First, what is the standard for showing intentional discrimination under § 504 of the Rehabilitation Act? Second, could the actions of medical personnel, including doctors and nurses employed by the hospital and involved in treating the plaintiff, be attributed to the hospital, and if so, what standard should be used?

In reversing the lower court with respect to their decision granting summary judgment to the hospital on the Rehabilitation Act claim, the 11th circuit reasoned as follows. First, the conduct of hospital personnel was such that the plaintiff was not given an equal opportunity to benefit from the hospital’s treatment. Id. at 344. In particular, the auxiliary aids that hospital personnel relied on to communicate the nature of the need for the surgery consisted of mouthing words for the plaintiffs to try and lip read, writing notes, and pantomiming. Id. at 343. Considering the disabilities of the plaintiffs, sufficient evidence existed to show that these limited auxillary aids were not effective and that additional aids were necessary. Id. The plaintiffs in this case did not excel in lip reading. Also, it is a myth that every deaf person excels in lip reading. Further, even the best lip reader, and I count myself in that category, can only get 50% of what is being said on the lips (I use my knowledge of the English language and top-of-the-line hearing aids to supply the rest).

Second, the court had to figure out that while discrimination occurred, was it intentional discrimination so that the plaintiff could obtain damages. The 11th circuit could have chosen from a couple of different options with regards to the standard for intentional discrimination. They could have either chosen deliberate indifference or discriminatory animus. For several reasons, the 11th circuit opted for deliberate indifference. First, the 11th circuit noted that all of the other circuits, except for one, addressing this issue reached the conclusion that to obtain compensatory damages under § 504 of the Rehabilitation Act, you have to show deliberate indifference. Id. at 345. Second, the court said that the statutory remedy for violating § 504 of the Rehabilitation Act is tied into title VI of the Civil Rights Act. Id. The 11th circuit follows up with a discussion of title VI of the Civil Rights Act and in the end reaches the conclusion that title VI links to title IX and that a United States Supreme Court case dealing with title IX setting forth a standard of deliberate indifference was the way to go because such a standard gives the requisite notice to recipients of federal funds by requiring the recipient to know of the discriminatory action and by requiring a deliberate refusal to act on that knowledge. Id. at 345-347. Third, the legislative history of the Rehabilitation Act reveals that Congress intended § 504 to combat intentional discrimination in the broad sense and not just discrimination based on discriminatory animus. Id. at 348. Fourth, a lower standard than deliberate indifference would fail to provide notice to Rehabilitation Act defendants while a higher standard, such as discriminatory animus, would go against congressional intent as it would mean that many cases of intentional discrimination would not have a remedy, which could not have been congressional intent. Id.

The other issue before the court was figuring out when the conduct of medical personnel could be attributed to the hospital. The court had two options. They could go with respondeat superior (a principle that says the master is liable for the negligent conduct of its servant), or they could adopt the approach of the United States Supreme Court in a title IX case, which also is the same case that set forth a deliberate indifference standard for intentional discrimination in title IX cases. Id. at 348-49. The 11th circuit opted for adopting the Supreme Court approach for deliberate indifference that is set forth in Gebser v. Lago Vista Independent School District , 524 U.S. 274 (1998). Under that case, deliberate indifference requires an official who at a minimum has the authority to address the alleged discrimination and to institute corrective measures on the organization’s behalf and who has actual knowledge of discrimination in the organization’s programs and fails adequately to respond. Liese 701 F.3d at 349 citing to Gebser. But that doesn’t answer the question, because we need to know who an official is. The court rejected the arguments that an official was everybody at the hospital, but it also rejected the argument that an official was only high level decision makers. Instead, the 11th circuit, said that the purpose of the official requirement was to ensure that an organization was only liable for the deliberate indifference of a person whose action could be fairly said to represent the actions of the organization. Id. at 350. Therefore, the 11th circuit said that an official was someone enjoying substantial supervisory authority within an organization’s chain of command so that when dealing with a particular matter, the official had complete discretion at a key decision point in the administrative process. Id. The 11th circuit believed that the key decision point language was significant because it reflected the reality that while many decisions are technically subject to review by higher authority, such a review is not part of the entity’s ordinary decision-making process. Id.

In short, for the plaintiff to survive summary judgment, they would have to show that at least one of the hospital’s doctors: knew that the hospital failed to provide the plaintiff with appropriate auxiliary aids necessary to ensure effective communication; had the authority to order that auxiliary aids be provided; and was deliberately indifferent to the hospital’s failure to provide the aid. Id. at 351. The 11th circuit found that the evidence was such that the conduct of one of the hospital’s doctors satisfied all three requirements. Id. In particular: 1) the plaintiff had told the doctor the day before surgery that her ability to read lips was limited; 2) the plaintiff testified that the doctor laughed at her and made exaggerated facial movements when asking whether she could really read lips (a deaf person would find such conduct terribly insulting); 3) the plaintiff had told the doctor at least twice that she needed an interpreter and the doctor ignored her requests both times; 4) when the plaintiff asked why she was having surgery on her stomach when she was experiencing chest pain, the doctor’s response was to write down, “remove it and you’ll feel better;” 5) on the morning of the surgery, the plaintiff once again asked the treating physician for an interpreter and also asked why she needed the surgery. Id. From this, the 11th circuit concluded that a reasonable juror could well find that the doctor knew he would not effectively communicating with the plaintiff and that the plaintiff needed more substantive interpretive aids to understand the nature of the first surgery. Id. Further, neither party disputed that the doctor had the authority to obtain an interpreter or some other equivalent for the plaintiff and that he had the authority to remedy the failure to give auxiliary aids and services to the plaintiff. Further, it was also undisputed that the doctor never made any attempt to obtain any such aids for the plaintiff. Id. In short, deliberate indifference was satisfied by this particular doctor because he had knowledge that the plaintiff required additional aids to effectively communicate with them and yet he deliberately refused to provide such auxiliary aids and services. Id. at 351-52.

As noted above, the 11th circuit mentions that all but one of their sisters circuits, have adopted the deliberate indifference standard. The one circuit that has not done so is the Fifth Circuit. It is simply very unclear as to what is going on in the Fifth Circuit. In a 2002 case, involving a plaintiff suing under both the Americans with Disabilities Act and the Rehabilitation Act who failed to pass a sobriety test because the police officers administered the test as if the person wasn’t deaf even though they knew that he was, the Fifth Circuit found intentional discrimination, adopted respondeat superior, and also said that there was no deliberate indifference standard applicable to public entities for purposes of the ADA or the Rehabilitation Act. Delano-Pyle v. Victoria County Texas, 302 F.3d 567, 574-75 (5th Cir. 2002). Thus, for intentional discrimination to exist under this case, it appears to be a far lower standard than deliberate indifference.

But that is not the end of the story in the Fifth Circuit, or at least with respect to courts that feed into the Fifth Circuit. In a case involving violations of the ADA and § 504 of the Rehabilitation Act in the educational context, the Western District of Texas said that acts creating an inference of professional bad faith or gross misjudgment were necessary to find that intentional discrimination occurred. Rhobabeck v. Seguin Independent School District 881 F. Supp. 2d 770, 777 (W.D. Tex. 2012). The Western District of Texas adopted the standard, which they borrowed from cases involving the Individuals with Disabilities in Education Act, even though the particular case before it did not involve the Individuals with Disabilities in Education Act. Id. Therefore, in the Fifth Circuit anyway, you may have different standards or recovering compensatory damages under the ADA and § 504 of the Rehabilitation Act depending upon whether the discrimination occurs in the educational context or not. In the educational context, you may have to show professional bad faith or gross misjudgment. In any other context in the Fifth Circuit, it may be possible to meet a far lower standard to show intentional discrimination as well as used traditional notions of respondeat superior to impute liability onto the entity itself.

Thoughts: Sine title II of the ADA’s remedies is tied into the Rehabilitation Act (See 42 U.S.C. § 12133), the 11th circuit case is well worth referring to with respect to the standard for obtaining compensatory damages under title II of the ADA. If you are in a jurisdiction governed by the fifth circuit, then your world is much more uncertain. The Fifth Circuit seems to be out there by themselves with respect to a fairly low standard for what intentional discrimination is. Also, the adoption of respondeat superior is a bit unusual as well. To make things even more confusing, you have that case out of the Western District of Texas saying in the educational context, that in order to obtain compensatory damages, you need to show professional bad faith or gross negligence. It would seem to me in light of the way most circuits have gone and in light of the Western District of Texas decision, that if you are in the Fifth Circuit, it may be well worth taking it up to the Fifth Circuit in order to get clarity on the issue. It is unclear as to whether the Fifth Circuit in light of all the precedent that has occurred since their 2002 decision, would stick with a fairly low standard for intentional discrimination and with the concept of respondeat superior. With respect to the W.D. of Texas’s view of what deliberate indifference is, that standard may indeed be suspect. It seems from reading the case that both the plaintiff and the defendant somehow became convinced that gross misjudgment and bad faith was indeed the standard and the court went along with that. See Rhodabeck 881 F. Supp. 2d at 777-78.

Practically speaking, we can take from all of this a couple of things. First, if you are in the Fifth Circuit or in one of the courts that feed into the Fifth Circuit, and you are involved in a case seeking damages against an entity subject to title II of the ADA, it might make sense to see if there is a way you can get the possible standards clarified as early as possible so that everyone knows how to proceed with their proof. The other thing to take away from this is the importance of training. Training needs to be more than de minimus and needs to be given by qualified people.