With the nomination of Ketanji Brown Jackson by Pres. Biden to the United States Supreme Court, it is time for me to do my analysis of the nominee’s decisions pertaining to disability rights. My search was done in casetext and it was, “judge/4 Brown-Jackson and ADA or 501 or 504 and disability. I also did an IDEA search for good measure. I did not see any decisions involving the Air Carrier Access Act or the Fair Housing Act with respect to disability. When it came to the ADA related decisions, I wound up reading about 23 cases and distilled it down to a select few to blog upon those here. I also saw that she had written opinions on about a dozen or so IDEA cases. I will leave the IDEA cases to a special education attorney and not focus on that here. This blog entry is going to be a bit different in terms of how it is laid out. I will discuss what each case is about briefly and then discuss the key holdings from her opinion in that case. In the other section, I will give my thoughts/takeaways. I was reading in the Wall Street Journal today that the Republicans are not expected to throw a monkey wrench into this and that the Democrats will hold firm. Even so, it is interesting to see what her views are with respect to the rights of people with disabilities.
This is a pretty straightforward case where the plaintiff failed to file a claim within 90 days after receiving a right to sue. Understandably, Judge Jackson grants the motion to dismiss.
This is also a straightforward case where she holds that the venue was improper for an ADA/title VII suit.
Pierce v. District of Columbia
This particular decision has been featured quite a bit in the press. It involves a culturally deaf individual who was not accommodated while in prison despite the prison knowing that he was culturally deaf and despite the culturally deaf individual asking for an ASL interpreter. Judge Jackson was having none of it. In particular, the following bears discussing:
- Title II of the ADA essentially requires an interactive process (see §6 of this section).
- Disability discrimination occurred as a matter of law because the district’s employees and contractors did nothing to evaluate the plaintiff’s need for accommodation despite their knowledge that he was disabled.
- There must be a typo in the decision because on page 266 of the opinion “accommodations,” and “modifications,” should be in each other’s place. That is, it is “modifications,” that is §504 and title II parlance and “accommodation,” that is title I parlance and not the other way around as it exists in the opinion.
- Deliberate indifference occurs where the prison took an obviously disabled inmate into custody without undertaking any evaluation of his accommodation requirements, and when he later requested aid, either rebuffed his inquiries entirely or provided him with whatever auxiliary tools it had on hand.
- Failure of prison staff to conduct an informed assessment of the abilities and accommodation needs of a new inmate who is obviously disabled is intentional discrimination and deliberate indifference.
- Prison officials have an affirmative duty to assess the potential accommodation needs of inmates with known disabilities when taken into custody and to provide the accommodations that are necessary for those inmates to access the prison’s programs and services, without regards to whether or not the disabled individual has made a specific request for accommodation and without relying solely on the assumptions of prison officials regarding that individual’s needs.
- The district’s knowing failure to evaluate plaintiff’s need for accommodation and provide auxiliary aids easily satisfies a deliberate indifference standard.
Equal Rights Center v. Uber Techs.
This is a decision dealing with Uber and whether they are accessible to persons with disabilities. It also discusses whether the person with the disability needed to download the app in order to bring a claim. We have discussed this kind of case before, such as here. Here are some of the critical statements made in this case:
- Deterrence can get a person with a disability standing. All the person with a disability has to show to get standing is that they were deterred from patronizing or visiting that accommodation.
- The Seventh Circuit’s view that heightened pleading requirements are somehow required does not wash. The only question is whether a reasonable similarly situated person would be deterred from seeking to avail themselves of the defendant’s services. In a footnote, she notes that the Seventh Circuit decision also makes no sense because by forcing a person with a disability to download the app, you are forcing the person with disability into arbitration. This set of circumstances is manifestly (her words), inconsistent with Congress’s express intent to allow plaintiff to challenge public accommodations that are not in compliance with the ADA even if they do not personally encounter the discriminatory barriers themselves.
- Complaint sufficiently allege facts that Uber is a transportation entity subject to 42 U.S.C. §12184 and sufficient allegations existed to make the claim that Uber was primarily in the business of transporting people. That is, an entity can provide a public transportation service without actually conveying or transporting people itself.
- A specified public transportation service per the ADA includes a vehicle taking a person to any other location in the metropolitan area at a predetermined price.
- Under the District of Columbia code, the lack of a real physical space associated with the Uber app does not at all mean that Uber cannot plausibly be considered a place under the District of Columbia Human Rights Act. Further, the District of Columbia Human Rights Act can extend beyond brick-and-mortar buildings because the definition of a place of public accommodation expressly includes all public conveyances operated on land or water in the air.
In this particular case a federal employee waited until the very last minute to let her employer know that she had a disability. That is, when she received notice that she was about to be separated from employment soon, she then filed her reasonable accommodation requests. Her employer was having none of it and claimed that the notification simply came too late. Judge Brown Jackson disagreed but nevertheless finds causation not present. This one is interesting, and I may have a dissenting view. Let’s explore below:
- Rehabilitation Act causation is according to 29 U.S.C. §794(a) is, “solely by reason of.” Therefore, motivating factor is out and but for is in. But for means the employer’s conduct “was the reason,” that the employer decided to act citing to Gross.
- A request for accommodation of a disability is timely if the institution is in a position to respond to the request.
I dissent: Readers of my blog entries will probably not be surprised to find out that with respect to the causation analysis in this decision, I respectfully dissent so to speak. First, federal employees are subject to §501 of the Rehabilitation Act. 29 U.S.C. §791(f) provides that the standards used to determine whether employment discrimination occurs shall be the standards applied under title I of the ADA of 1990. Title I of the ADA of 1990 is “on the basis of.” Second, I am aware that a line of cases exists saying that but for causation is essentially sole causation. However, Bostock, which we discussed here, has changed all of that so that but for, by reason of, and on the basis of now mean determining factor. To be fair to Judge Brown Jackson, Bostock was not decided at the time of this opinion. Even so, I just don’t follow the causation analysis because the plaintiff was a federal employee and therefore, §501 was in play and not §504.
This is a very interesting case whereby a plaintiff filed a lawsuit alleging violations of the FMLA and the District of Columbia’s FMLA while her ADA claim was working its way through the EEOC. Once the EEOC gave a right to sue sometime later, she filed a separate ADA claim in federal courts. The defense said that res judicata prevented the separate ADA claim from going forward. Judge Brown Jackson agrees and the case gets thrown out on res judicata grounds. To Judge Brown Jackson the problem was the plaintiff could have done other things to prevent the problem from happening. For example, the plaintiff could have done any of three things: 1) filed the EEOC complaint, weight its outcome, and then file all the claim simultaneously in the same complaint in District Court; 2) file one administrative complaint and one complaint in federal court, then seek to stay the federal court proceedings pending the outcome of the EEOC proceedings; or 3) file both EEOC complaint in the federal district complaint, request the right to sue notice after 180 days, then seek to amend the federal complaint to include the additional claims.
In this case, an asthmatic employee could not meet the physical requirements of the job. There wasn’t much dispute about that, but she did make clear that she wanted to work with the State Department somehow if possible. The State Department terminates her instead, and she sues under both the ADA and the Rehabilitation Act. Here are some of the salient points from that decision:
- The ADA does not apply to the federal government.
- Citing favorably to a decision saying that mandatory reassignment was in play for persons with disabilities, she said that an employee seeking reassignment to a vacant position is within the definition of a qualified individual with a disability if with or without reasonable accommodations, she can perform the essential functions of the employment position to which she seeks reassignment.
- A qualified individual is an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.
- When accommodation cannot be made in the employee’s current position, the federal employer must (italics of this word is in the actual opinion), consider the feasibility of reassigning the disabled employee to a vacant position.
- The State Department did not present any evidence to show that there was no available position that the plaintiff could have performed.
- A straightforward request is asking for continued employment is a sufficient request for accommodation.
- “It does not appear that State perform its duty of actually helping Mitchell [the plaintiff] to find another position, beyond just pointing her to job postings.”
- While there is no independent cause of action for failure to engage in the interactive process, not doing so is prima facie evidence that the employer is acting in bad faith.
- Unusual for a hearing Judge, which I presume she is, Judge Brown Jackson truly gets Deaf and deaf.
- Mandatory reassignment cases will make their way to the Supreme Court undoubtedly while she is still on the bench. Mitchell v. Pompeo gives a strong indication that she is likely to come down on the side of the Seventh Circuit or something very close to that rather than on the side of the 11th Circuit.
- One wonders if she will not revisit her view of causation with respect to federal employees once on the Supreme Court when the federal employee representatives points out that §501 of the Rehabilitation Act is a completely different animal than §504 Rehabilitation Act.
- Judge Brown Jackson is likely to be very receptive to review that title III of the ADA does not require a physical place, a view we discussed here.
- If I gleaned a judicial philosophy at all it would be that she appears to very much look to what is the purpose of the legislation and then will interpret provisions broadly in order to carry out that purpose. You see that in particular with Pierce and Equal Rights Center. You also see that in Von Drasek where she has a very broad notion of when accommodation request is timely.