Hope everybody had a great Memorial Day weekend. This week’s blog entry begins a two-part series talking about how the ADA prohibits discrimination on the basis of disability when it comes to offered privileges and benefits. In this week’s blog entry, we will talk about the recent Eighth Circuit decision, here, in Hopman v. Union Pacific Railroad (we discussed the trial court opinion here). Next week, we will turn to an 11th Circuit case that just came down also discussing the privileges and benefits issue. Since we blogged on Hopman previously, we don’t need to go into great detail with respect to the facts. So, the blog entry will be divided into the categories of: facts briefly; court’s reasoning that privileges and benefits of employment were not involved with respect to seeking a service animal while plaintiff worked on the job; and thought/takeaways. Since the blog entry is so short, I am figuring that the reader will want to read the whole thing. Of course, the reader is free to concentrate on any or all of the categories.
Plaintiff was a military veteran and requested a service dog to accompany him while working on trains as a conductor. The key to this case that makes it different from others is that the case was not about a failure to accommodate, but rather the case was structured as a failure to make reasonable modifications and adjustments so as to enable him to enjoy equal benefits and privileges of employment.
Court’s Reasoning That Privileges and Benefits of Employment Were Not Involved with Respect to Seeking a Service Animal While Plaintiff Worked on the Job
- The plain text of EEOC regulations include only benefits and privileges enjoyed by other similarly situated employees without disabilities.
- While “benefits and privileges of employment,” is not a term used and defined in the ADA, the statutory meaning of those terms (fringe benefits, access to recreational programs and facilities, and other employer-provided workplace advantages not directly related to job performance), can be derived from various provisions of the statute confirmed by its legislative history.
- The EEOC’s interpretive guidance on title I in their Appendix to 29 C.F.R. part 1630 says that the reasonable accommodation obligation extends to all services and programs provided in connection with employment, and to all nonwork facilities provided or maintained by an employer for use by its employees. Accordingly, the obligation to accommodate applies to employer-sponsored placement or counseling services, and to employer-provided cafeterias, lounges, gymnasium, auditorium, transportation and the like.
- The EEOC’s Technical Assistance Manual that addresses the issue of accommodation to ensure equal benefits of employment states that employees with disabilities must have equal access to lunchrooms, employee lounges, restrooms, meeting rooms, and other employer-provided or sponsor services such as health programs, transportation, and social events.
- The employer duty to provide equal benefits and privileges of employment laid out in 29 C.F.R. §1630.2(o)(1)(iii) is limited by the plain text of the regulation.
- The court refers to the EEOC’s interpretive guidance addressing the distinction between assisting an individual in performing the duties of a particular job and assisting the individual throughout his or her daily activities on and off the job. The former is job-related and subject to reasonable accommodation rules, while the latter is considered a personal item (examples given include a prosthetic limb, wheelchair, or eyeglasses), that the employer is not required to provide.
- Providing a service dog at work so that an employee with a disability gets the same assistance the service dog provides away from work is not a cognizable benefit or privileges of employment.
- ADA failure to accommodate cases are facts and context specific and this decision needs to be interpreted in that light. The court recognized that there are apparently conflicting decisions out there as to whether it is the job being reasonably accommodated or whether it is the disability that is being reasonably accommodated. Even so, the court said that is often possible to reconcile the apparent conflicting decision by paying careful attention to the particular facts and contexts of those various cases.
- The court noted that another issue lurking was whether failure to accommodate cases required an adverse action. Even so, it wasn’t necessary to visit that question because both parties seem to assume that it did, and this case is a privilege and benefits case rather than a failure to accommodate case.
- Very interesting that this was a privileges and benefits case and not a failure to accommodate case. I am not sure why the choice would need to focus on privileges and benefits rather than reasonable accommodations was utilized here.
- I can understand the statement that a person getting the same assistance the service dog provides while at work and away from work is not a cognizable benefit or privilege of employment. However, that does not mean such a person is not entitled to the service animal as a reasonable accommodation.
- The Department of Justice has asked the Supreme Court to weigh in on two cases involving the question of what are privileges and benefits with respect to title VII of the Civil Rights Act. The Department of Justice stated in their amicus briefs in those cases (Davis v. Legal Services of Alabama and Muldrow v. City of St. Louis, Missouri), that privileges and benefits should be construed very broadly. If the Supreme Court decides to take up those cases, those decisions should be followed closely to see whether there reasoning might also apply to the ADA, which also has privileges and benefits terminology within it.
- Next week, we will take up a published 11th Circuit case, Beasley v. O’Reilly Auto Parts, which also goes into detail on the privileges and benefits question.
- If the Eighth Circuit decision in Hopman teaches anything, where it is possible to argue failure to accommodate, it probably makes more sense to argue failure to accommodate than privileges and benefits. See also ¶ III(2) above.
- Very much lurking here is the critical question and failure to accommodate cases of whether related the job’s essential function being accommodated or is it the disability being accommodated. The answer depends upon where you are. For example, in the 11th Circuit, as we discussed here, there is a case making it clear that it is the disability that is accommodated. This question is more than a theoretical concern as what is being accommodated will just about always be an issue in service animal cases.
- Whether failure to accommodate claim require an adverse action being hotly debated in the courts, and we have discussed that issue in our blog before, such as here and here.
- An interesting question is whether the reasoning of this case would affect the reasoning of cases we discussed here , where independent contractors, such as but not limited to a hospital physician, were suing for disability discrimination.
Next week is a published decision from the 11th Circuit in Beasley v. O’Reilly Auto Parts unless something comes up that forces me to move that discussion back.
Postscript: on February 20, 2021, United States Supreme Court denied cert.