Hope everyone had a great holiday weekend, assuming you had a chance to have Martin Luther King Day off. Today’s case, United States v. Asare is a decision that came down on December 20, 2017, from the Southern District of New York. The lesson here is never forget about the interactive process and performing an individualized analysis regardless of whether an employment matter is involved. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning; and takeaways. The reader is free to read any or all of the categories.

I

Facts

The facts of this case are pretty straightforward. There were three plaintiffs in the case. All of them wanted male breast reduction surgery (gynecomastia surgery), with Dr. Asare. The doctor had a blanket policy against operating on individuals with HIV who were also taking antiretroviral medications. At various points in the preoperative process, all three plaintiffs were told that the doctor would not perform the surgery. When the Department of Justice got involved, it brought suit on its own behalf alleging violations of the ADA’s screen out and reasonable modification provisions as well as the New York City Human Rights Law, §8-107. One of the plaintiffs, Milano, intervened in the case. The plaintiffs brought suit against  Dr. Asare and his medical practice. After discovery, plaintiffs moved for summary judgment on their claims, which the defendants opposed, and the defendants, ultimately successfully, cross moved for summary judgment on claims unrelated to HIV. Our discussion will focus strictly on the HIV ADA claims and not on the New York Human Rights claims nor on the non-HIV claims.

II

Court’s Reasoning

In granting the plaintiff’s motion for summary judgment with respect to the HIV claims, the court reasoned as follows:

  1. Everyone agreed that Dr. Asare’s blanket policy of refusing to operate on individuals with HIV taking antiretroviral medications constitutes an eligibility criterion that screens out a class of individuals with disabilities. Accordingly, the question is whether the eligibility criterion was necessary and therefore, permissible under the ADA.
  2. Relying on School Board of Nassau County, Florida v. Arline, the court said that the ADA requires an individualized inquiry into the patient’s health risks.
  3. It is impermissible under Arline, to reject an applicant automatically as a result of his or her disease or symptoms without considering the individual.
  4. Asare testified at his deposition that when a person comes to him and says that he is HIV positive, the doctor then asks him whether the patient is on an antiretroviral cocktail. If the answer is yes, the case is closed and the doctor does not investigate what type of antiretroviral drugs a potential patient is taking or its possible effects. Further, the defendant acknowledged that some antiretroviral drugs are not contraindicated for the drugs in his sedative regimen, but he does not investigate further because he just doesn’t feel comfortable.
  5. A blanket refusal without an individualized inquiry is insufficient to pass muster under the ADA.
  6. Defendant’s own medical expert stated that he would have preferred to have more history and patient information available prior to making decision because without some knowledge of that patient’s medical history, a decision would not be made based upon medical necessity or medical history.
  7. Defendant had the burden to demonstrate that the application of any criteria screening out individuals with HIV was necessary. Such a burden cannot be met when the defendant automatically rejects potential patients without making a determination based upon medical necessity.
  8. Title III of the ADA imposes a fundamental requirement that a person with a disability be evaluated on an individual basis.
  9. The refusal to consider an individual’s personal circumstances in deciding whether to accommodate a disability run counters to the clear language and purpose of the ADA.
  10. An individualized inquiry must be made to determine whether a specific modification for a particular person’s disability is reasonable under the circumstances as well as necessary for that person while not imposing a fundamental alteration on the defendant’s place of business.
  11. The fact Dr. Asare admits that he refuses to perform cosmetic surgery on patients taking antiretroviral medication without making any further inquiry into their medical history or medical regimen is dispositive with respect to the failure to modify policies, practices, and procedures just as it is dispositive with respect to the screen out provisions.

III

Takeaways

  1. With respect to the New York Human Rights Law, the court noted that the ADA sets a floor for the states. Accordingly, a violation of the ADA is automatically a violation of the New York Human Rights Law. The impact of this holding cannot be understated because not every state law explicitly ties into the ADA, though some do.
  2. While the court talks about whether the eligibility criterion was necessary, the court never really reaches the necessary determination because of the lack of an individualized inquiry. In that way, the case resembles what used to be called the irrebuttable presumption line of cases more than it does an analysis of whether the eligibility criterion was necessary.
  3. If this case stands for anything, it is never forget about an individualized inquiry before denying services to a person with a disability. Indeed, you won’t even get to the “necessary,” defense without engaging in that individualized inquiry first.
  4. On the preventive law side, if this case stands for anything, never forget about the interactive process. It is true that interactive process is a title I construct, but how an individualized inquiry and a decision about how to provide or deny services to a person with disability can be made without engaging in the interactive process, is beyond me (case law, such as this one, does exist expanding the interactive process to title II of the ADA). So, be sure to engage in an individualized inquiry as well as an interactive process.
  5. Blanket policies without an individualized analysis are not a good idea. We have previously talked about that one before in this blog entry, which involved 100% return to work policies.
  6. A person with HIV is a person with a disability per this case.
  7. The burden is on the defendant to demonstrate the application of any criteria screening out individuals with HIV is necessary.
  8. Review your policies and practices for policies and practices that unwittingly screen out persons with disabilities. See this case for example.
  9. I am seeing more and more cases where a plaintiff is successful in obtaining summary judgment, though it is still unusual.
  10. Arline is a direct threat case and not whether a screen out provision can be proven necessary or whether a, “necessary” defense exists to a failure to modify practices, policies, and procedures. Nevertheless, this case makes clear that in deciding “necessary,” you also want to look at direct threat concepts, which we discussed in this blog entry.

3 Responses to Regardless of ADA Title, Never Forget About the Individualized Inquiry and the Interactive Process

New York City broadened its Human Rights Laws from the ADA’s ‘interactive process” to ‘cooperative dialogue”.
Int. 804-A amended the New York City Human Rights Law (NYCHRL) to (i) expressly require covered entities to engage in “cooperative dialogue” with individuals who may be entitled to reasonable accommodations under the law, and (ii) expand employer obligations by implementing a written determination requirement any time an accommodation is granted or denied.
Here is the text of the law: https://www1.nyc.gov/assets/cchr/downloads/pdf/amendments/Int.%20No.%20804-A.pdf
My reading indicates it covers Title I, II and III. Hopefully other cities and states will follow by defining the process of “interactive process” which is not particularized in the ADA.

Great blog, and good advice. A business that may be right about not granting an accommodation should be careful not to lose because it didn’t engage long enough to justify the decision.

Leave a Reply

Your email address will not be published. Required fields are marked *