I am taking a break from watching the Olympics on Peacock and other channels. Hoping everyone has a good end to the summer. At least in my town, K-12 starts for the kids tomorrow.

 

Today’s blog entry deals with the question of what happens when you have a fitness for duty exam that doesn’t properly evaluate what it is supposed to evaluate. Further, what happens if the person that is being evaluated suggests a another way to be evaluated and the employer turns it down. The answer is the employer gets hit with a $1,023,424.34 verdict. This is exactly what happened in Sanders v. Union Pacific Railroad Company, here, decided by the Ninth Circuit on July 25, 2024. As usual, our blog entry is divided into categories and they are: facts; court’s reasoning that Sanders did not waive arguments regarding cardiovascular concerns or knee problems because his complaint specifically identified only his ulcer; court’s reasoning that the jury could have reasonably concluded that by imposing work restrictions, Union Pacific discriminated against a qualified individual on the basis of disability; direct threat defense does not apply; the jury had sufficient evidence to conclude that Sanders proved his failure to accommodate claim; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

Allan Sanders worked for Union Pacific as a foreman general. This position required Sanders to oversee mechanics for Union Pacific’s trains, known as carmen, and to assume their responsibilities if none of them were available to respond to a distressed train. Some of the carmen’s responsibilities require significant physical exertion. One such responsibility is replacing knuckles—part of the equipment that links the cars of a train together—that weigh approximately 86 pounds each.

 

This physical component of Sanders’s job became a problem only when he suffered complications relating to a bleeding ulcer. One of those complications was a brief cardiac arrest. Sanders was resuscitated, underwent a successful operation, and fully recovered. Before Sanders could resume his duties, Union Pacific required him to undergo a fitness-for-duty evaluation. Dr. Charbonneau, an associate medical director for Union Pacific, oversaw the evaluation.

 

Union Pacific required Sanders to perform a “Bruce protocol” test—that is, a test where Sanders had to walk quickly or jog on a treadmill—to demonstrate his aerobic capacity. Sanders stopped this test early because of “fatigue.” He explained to Union Pacific that his fatigue was due to pain in his knees caused by osteoarthritis rather than any issue with his heart. Sanders requested that Union Pacific allow him to perform an alternate test on a bicycle because the bike would put less strain on his knees. Union Pacific told him that it would not accept the results of a bicycle test. Based on the results of the treadmill test, Dr. Charbonneau concluded that Sanders had low aerobic capacity and would be unable to perform strenuous labor. He thus imposed work restrictions that prevented Sanders from returning to work as a foreman general. Sanders sued Union Pacific and alleged discrimination under the ADA. A jury returned a verdict for Sanders and awarded damages of $1,023,424.34.

 

 

II

Court’s Reasoning That Sanders Did Not Waive Arguments regarding Cardiovascular Concerns or Knee Problems Because It Complaint Specifically Identified Only His Ulcer

 

  1. The Federal Rules of Civil Procedure provide that when an issue is not raised by the pleadings but is tried by the parties express or implied consent, it gets treated as if it was raised in the pleadings.
  2. Sanders raised his knee problems and possible cardiovascular limitation before trial, and Union Pacific was afforded sufficient notice of those claims. In fact, Union Pacific litigated the merits of those impairments in a motion for summary judgment and addressed those conditions in its proposed jury instructions. The jury instruction even included those conditions. Further, Union Pacific did not object to the evidence received at trial regarding those impairments.

 

III

Court’s Reasoning That The Jury Could Have Reasonably Concluded That By Imposing Work Restrictions, The Company Discriminated Against A Qualified Individual On The Basis Of Disability

 

  1. To establish a claim of disparate treatment, Sanders had to show: 1) he was disabled; 2) he was qualified; and 3) the employer imposed work limitations because of his disability.
  2. Charbonneau required the treadmill test and then refused to allow Sanders to return to work because of his concern that Sanders’s heart was impaired. Such evidence is sufficient for a jury to believe that Union Pacific perceived Sanders as having a heart impairment and restricted him from work on that basis.
  3. With the amendments to the ADA, the definition of disability must be construed in favor of broad coverage of persons with disabilities. Also, the amendments expanded the scope of “regarded as,” claims by providing no basis to limit the prohibition for discrimination based on archaic attitudes, erroneous perceptions, and myths.
  4. An employee is qualified if he can perform the essential functions of a job with or without reasonable accommodations. Here, the jury heard considerable evidence that Sanders could lift knuckles and perform other strenuous activities without accommodations. Doctors also cleared him for work without lifting limitations. The applicable job description states that he would lift knuckles only rarely and with assistance. Sanders also testified that he regularly performed activities more strenuous than his work for Union Pacific. Finally, no test reliably showed that Sanders could not lift 86 pounds. Accordingly, a reasonable jury could conclude that Sanders was qualified to perform the essential functions of his job.
  5. The jury reasonably found that Union Pacific acted because of Sanders disability. The evidence showed that Union Pacific stopped Sanders from working as a foreman general because it believed he had diminished cardiovascular health, which is a physical impairment under the ADA.
  6. The ADA does not require evidence of prejudice towards persons with disabilities. All the ADA requires is that the employer was motivated by the employee’s disability. Sanders can show that because the defendant acknowledged relying on the plaintiff’s impairment in reaching the employment decision.

 

IV

Direct Threat Defense Doesn’t Fly

 

  1. To establish a direct threat Defense, Union Pacific had to show that its determination that Sanders was a direct threat was: 1) the result of an individualized assessment; 2) objectively reasonable; and 3) based on the most current medical knowledge and/or on the best available objective evidence.
  2. Union Pacific failed to prove that the test was objectively reasonable and that the determination was based upon the most current medical knowledge and/or on the best available medical evidence for several reasons. First, Sanders’s medical expert testified that Union Pacific should have allowed Sanders to undergo a test on a bicycle in light of his knee condition and medication regimen. As such, the test that he did undergo rendered the results inaccurate. Further, the expert testified that Union Pacific’s decision to limit Sanders was completely uncalled for, completely wrong, and not based on any medical principles at all. Accordingly, a reasonable jury could have accepted this testimony and concluded the company failed to prove its decision was objectively reasonable and based on the best available objective evidence.

 

V

The Jury Had Sufficient Evidence to Conclude That Sanders Proved His Failure to Accommodate Claim

 

  1. In order to prove a failure to accommodate, Sanders had to show: 1) Union Pacific knew of his disability; 2) Sanders requested an accommodation; 3) Union Pacific failed to engage in an interactive process with Sanders about possible accommodation; and 4) Sanders’s disability could have been reasonably accommodated if the interactive process had taken place.
  2. Sanders testified that he had arthritis in his knees that limited his ability to walk quickly enough on the treadmill to demonstrate accurately his aerobic capacity. As such, the jury had sufficient evidence to conclude that Sanders is a person with a disability.
  3. There was ample evidence that Union Pacific knew of Sanders’s knee problems: 1) Union Pacific had his medical records; 2) Sanders told Union Pacific employee that he was concerned about his knees before taking the treadmill test; and 3) Sanders told Dr. Charbonneau later that his knees limited his performance on the treadmill test.
  4. The evidence also supports a finding that Sanders requested an accommodation when he asked whether he could take the test on a bicycle rather than on a treadmill. Once that request was made, Union Pacific was required to engage in an interactive process designed to identify the limitations caused by his disability and to discover potential reasonable accommodation to overcome those limitations. An employer hinders that interactive process when it does not in good faith assist the employee in seeking accommodations and the employee could have been reasonably accommodated but for the lack of the employer’s good faith.
  5. Union Pacific did not assist Sanders in identifying a suitable accommodation for his impaired knees when he informed him that only results from a treadmill test would be acceptable. That directive eliminated the possibility of an accommodation. The record also included evidence showing that the company could have reasonably accommodated Sanders. Three different physicians testified that a bicycle test is a medically appropriate alternative to the treadmill test for someone with impaired knees.
  6. Sanders stopped the treadmill test only because of his impaired knees. His doctors also cleared him for work without restriction. Finally, evidence existed that Sanders regularly performs physical activities, such as ranching, that were as strenuous as his work as a foreman general (his job at Union Pacific). Therefore, a reasonable jury could have concluded that Sanders would have performed well enough on the bicycle test to return to work.

VI

Thoughts/Takeaways

 

  1. Fitness for duty exams need to be narrowly focused on what is being evaluated and should not be fishing expeditions.
  2. If a person asks for another way to accomplish such a narrowly focused tests, the entity must consider that.
  3. The ADA extends beyond just employment. It also includes accessing nonfederal governmental entities and accessing places of public accommodations. While the employment provisions have very specific regulatory provisions when it comes to disability related inquiries and medical exams, the DOJ in their Technical Assistance Memorandum for both Title II and Title III have made it clear that unnecessary medical inquiries are also prohibited by Title II and Title III of the ADA. Also, remember, as we discussed here for example, the ADA is a nondelegable duty.
  4. Direct threat defense is a high bar to meet and it requires, as we have discussed many times before, such as here, an individualized assessment with a decision that is objectively reasonable and based upon the most current medical knowledge and/or on the best available objective evidence.
  5. The ADA doesn’t require evidence of prejudice towards persons with disabilities.
  6. Don’t forget that there are three entirely separate ways to establish a disability under the ADA: actual; record of; and regarded as. You only need one of the three. This particular case involves both the actual and regarded as prongs.
  7. Magic words are not required to activate the interactive process. Failure to engage in an interactive process never turns out well for the employer.
  8. An evaluator of a fitness for duty exam should know what the essential functions of the job are and should also be considering whether the exam being performed assesses that essential function and whether that exam is getting accurate information. If not, a different exam or way of doing the exam should be explored. See this article for what evaluators need to be thinking about with respect to their responsibilities under the ADA.
  9. The decision is published.
  10. The statutory damage caps have not been amended since the ADA was signed. So, the damages get reduced. That said, attorney fees are certainly in play. Union Pacific will have to pay plaintiff’s attorney fees and those fees are likely to be quite substantial. Legislation has been introduced to amend the statutory damage caps and there is some support in both parties. Hard to believe there would be any movement on that legislation until the results of the November election are known. If VP Harris should win, you would think revisiting the statutory damage caps would be something that she would want to do.

Today’s blog entry is going to be a short one. One of the issues we have discussed quite a bit in a variety of contexts is sovereign immunity. What happens when the claim is retaliation and sovereign immunity is involved? Does sovereign immunity get forcibly waived in that situation? A case answering this question is a published decision from the Sixth Circuit decided on June 24, 2024, is the case of Stanley v. Western Michigan University, a published decision out of the Sixth Circuit, here. As usual, blog entry is divided into categories and they are: facts; court’s reasoning that sovereign immunity applies to the retaliation claim; and thoughts/takeaways. The court considers a couple of other issues as well (effect of a premature notice of appeal and whether the dismissal is with or without prejudice), but we aren’t going to address those issues in this blog entry. Since the blog entry is so short and only one issue is discussed, the reader is probably going to want to read the whole thing.

 

I

Facts

 

WMU terminated Stanley’s employment during his probationary period for excessive tardiness and failure to follow proper clocking-in procedures. Stanley has severe ADHD that he claims impacted his ability to timely clock in, such as by causing him to occasionally forget his swiping ID card. Stanley claims he was “disciplined for being late after having to wait for WMU staff to perform his required temperature check for COVID-19 purposes,” even though he was told he would not be disciplined following such occurrences. Id. at 3. Because Stanley sometimes forgot his ID card, he requested a reasonable accommodation—such as a punch card to be kept onsite—which WMU denied. Stanley also spoke to WMU’s office of institutional equity to determine whether he would be able to use his service dog in any department, including dining services, which Stanley claims led to employees in that office “asking improper questions regarding [his] disability.” Id. Stanley disclosed the tasks his service dog performed but did not elaborate on his disability or medical history.

 

Stanley claims that he could not comply with WMU’s timeliness standards because of his disability, for which WMU did not provide a reasonable accommodation. Katie DeCamp, the head supervisor of dining services at WMU, indicated that Stanley was told during training that he could use the speaker at the building’s entrance to ask someone to open the door for him so that he would not be late, but Stanley claims he was never told about the speaker. On November 10, Stanley claims he was informed that the hospitality department “doesn’t do” accommodations, after which he contacted WMU’s human resources department. Id. The following day, WMU terminated Stanley.

 

Western Michigan defended on the basis of sovereign immunity under the 11th Amendment.

 

II

Court’s Reasoning That Sovereign Immunity Applies to the Retaliation Claim

 

  1. In Board of Trustees of the University of Alabama v. Garrett, here, United States Supreme Court held that the ADA does not forcibly waive sovereign immunity when it comes to employment matters.
  2. Ex Parte Young does not allow for suits against the State itself.
  3. Suits against actors in their official capacity enjoy 11th Amendment immunity.
  4. The ADA does not allow for personal liability.
  5. Neither the Supreme Court nor the Sixth Circuit has previously addressed whether the States are entitled to immunity from claims brought under Title V of the ADA.
  6. In determining whether forcible waiver of sovereign immunity can be upheld, the court has to look to whether Congress unequivocally expressed its intent to abrogate that immunity. It also has to look to Congress acted pursuant to a valid grant of constitutional authority.
  7. Congress clearly expressed this intention to get rid of 11th Amendment immunity in the ADA and 42 U.S.C. §12202, here.
  8. Per Board of Trustees of the University of Alabama v. Garrett, here, persons with disabilities are in the rational basis class with respect to employment matters.
  9. In this case, the retaliation claim (Title V), is based upon a Title I claim. Accordingly, it logically follows that a person with a disability would be in the rational basis class with respect to a retaliation claim where the underlying matter is an employment matter. In other words, if Congress did not validly abrogate 11th Amendment immunity per Title I claims, then it also did not abrogate 11th Amendment immunity for a claim under Title V alleging retaliation for a Title I claim.
  10. The ADA remedial scheme is not proportional to the harm being redressed when it comes to retaliation cases based upon employment situations because the legislative record and congressional findings do not contain any discussion of a history and pattern of retaliation by the States against public employees opposing disability discrimination.
  11. Every other circuit has reached the same conclusion.

 

III

Thoughts/Takeaways

 

  1. We have discussed before, such as here, how courts look at retaliation claims by linking it to the underlying matter. So, the reasoning of this case is not surprising.
  2. Keep in mind, that persons with disabilities per Tennessee v. Lane, here, vary in terms of the equal protection class they find themselves in depending upon the facts of the case. I know of no other category of people whose equal protection class varies depending upon the facts.
  3. The decision is published.
  4. The 11th Circuit, in a case we discussed here, reached a virtually identical conclusion to this case.
  5. The courts are pretty much unanimous, with one exception, which we discussed here, that personal liability is not something allowed under the ADA regardless of the Title involved.
  6. As I wrote in the latest edition of my book, here (while the latest edition of my book was published in 2013, I have been updating the various editions of the book in real time since December 2011 with my Understanding the ADA blog), it isn’t a foregone conclusion at all that persons with disabilities are in the rational basis class with respect to employment matters for two reasons. First, the Supreme Court in Garrett, cited to City of Cleburne, Texas v. Cleburne Living Center, Inc., here. A close reading of Cleburne reveals that it was not a typical rational basis review case because the majority opinion only reaches that conclusion after a very detailed discussion of how government have been quite aggressive in trying to serve the needs of persons with what is now called intellectual and developmental disabilities. In fact, Justice Marshall in an opinion joined by Justice Brennan and Justice Blackmun made the point that the majority reasoning did not resemble rational basis review at all because too much attention is paid in the opinion to the rights of persons with what is now called intellectual and developmental disabilities  and to intellectual disabilities in general. Justice Marshall thought it would be more accurate to call the level of the review of the majority opinion as, “second order rational basis.” In Heller, here, the Supreme Court specifically noted that they were not asked to decide what equal protection class persons with disabilities fit in because the parties had already stipulated that persons with disabilities were in the rational basis class. All this said, it is beyond doubt (the cases are unanimous), that sovereign immunity cannot be forcibly waived with respect to persons with disabilities in employment matters).

ADA turns 34 on July 26.

Happy anniversary!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

The EEOC has been focused on AI discrimination in the workplace for some time. It has been a particular focus, though not exclusively with him, for outgoing EEOC Commissioner Keith Sonderling, who actually wrote a law review article on the topic (see ¶ 1 of thoughts/takeaways §). During the last academic year, I was part of a Ohio Northern University Law Review symposium on artificial intelligence and spoke on AI in employment and what that means for people with disabilities. That presentation will become a law review article coming out in the fall.

 

The case of the day, Mobley v. Workday, Inc., here, deals with AI used in employment decisions. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning that Workday is an employer; court’s reasoning that Workday is not an employment agency; court’s reasoning that plaintiff’s disparate impact claim can proceed; court’s reasoning that plaintiff’s disparate treatment claim cannot proceed; court’s reasoning that plaintiff’s aiding and abetting claim under the California antidiscrimination law cannot proceed; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

Workday provides its customers with a platform on the customer’s website to collect, process, and screen job applications. Workday’s website states that it can “reduce time to hire by automatically dispositioning or moving candidates forward in the recruiting process.” Workday allegedly “embeds artificial intelligence (‘AI’) and machine learning (‘ML’) into its algorithmic decision-making tools, enabling these applications to make hiring decisions.” In addition, Workday’s applicant screening tools allegedly integrate “pymetrics” that “use neuroscience data and AI,” in combination with existing employee referrals and recommendations. According to Mobley, these tools “determine whether an employer should accept or reject an application” and are designed in a manner that reflects employer biases and relies on biased training data. An applicant can advance in the hiring process only if they get past Workday’s screening algorithms.

Mobley is an African American male over the age of forty with a bachelor’s degree in finance from Morehouse College—an all-male Historically Black College and University (“HBCU”). He is also an honors graduate of ITT Technical Institute and Server+ certified. Mobley suffers from anxiety and depression. Since 2010, he has worked in various financial, IT help-desk, and customer-service oriented jobs. For example, Mobley has experience as an Advanced Solutions Engineer with Hewlett Packard Enterprise, a Customer Service Representative with the Internal Revenue Service, and a Support Specialist, Level 1A Manager with AT&T Digital Life.

Mobley has allegedly applied to over 100 positions with companies that use Workday’s screening tools for talent acquisition and hiring since 2017. Numerous positions also required him to take a Workday-branded assessment and/or personality test. Mobley alleges that these assessments and personality tests are likely to reveal mental health disorders or cognitive impairments, and that those like Mobley who suffer from depression and anxiety are likely to perform worse on these assessments and be screened out. Workday’s screening tools then allegedly use the information from those tests and assessments to evaluate an applicant’s qualifications and recommend whether the applicant should be accepted or rejected.

Despite his qualifications, Mobley was allegedly denied employment for every one of the 100-plus applications that he submitted to companies using Workday’s platform. For example, when Mobley was working for Hewlett Packard on a contract basis, he applied via hpe@myWorkday.com for a Service Solutions Technical Consultant position, the qualifications for which allegedly mirrored those for the role he was already in. His application was rejected the next month. On another occasion, Mobley applied for a Customer Services Specialist position with Unum via unum@myWorkday.com at 12:55 a.m., but his application was rejected less than an hour later. Other applications for customer service roles submitted through Workday were also rejected. For the positions to which he applied, Mobley alleges that he met their experiential and educational requirements.

Mobley alleges that Workday’s algorithmic decision-making tools discriminate against job applicants who are African American, over the age of 40, and/or disabled.

 

II

Court’s Reasoning That Workday Is an Employer And May Be Held Liable As an Agent of the Employer

 

  1. The antidiscrimination laws under which Mobley sued all prohibit discrimination not just by employers themselves but also by their agents.
  2. Employers cannot escape liability for discrimination by delegating their traditional functions, such as hiring, to a third party.
  3. Federal appellate courts outside of the Ninth Circuit have held that an employer’s agent may be independently liable when the employer has delegated to the agent functions traditionally exercised by an employer.
  4. Where the employer has delegated control of some of the employer’s traditional rights, such as hiring or firing, to a third party, the third party has been found to be an employer by virtue of the agency relationship.
  5. The antidiscrimination statutes that Mobley sued under define the term “employer,” as a person engaged in an industry affecting commerce who has at least 15 employees (it is twenty for the age discrimination statute- ADEA), for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, and any agent of such a person.
  6. All the relevant statutes prohibit employers (ADA refers to covered entities, which includes employers), from engaging in certain acts of discrimination.
  7. An employer and an employment agency are not at all the same thing.
  8. Employment agencies procure employees for an employer, which means they find candidate for an employer’s positions. They do not actually employ those employees.
  9. Employment agencies under the applicable laws face a different set of restrictions from employers. They are liable when they fail or refuse to refer individuals for consideration by employers on prohibited bases, but they are not subject to the prohibitions applicable to employers in carrying out their traditional functions, such as hiring, discharging, compensating, or promoting employees.
  10. An entity liable as an employment agency is not necessarily liable as an agent of an employer.
  11. Agent of an employer and employment agency have very distinct meanings.
  12. It simply doesn’t make any sense that companies can be allowed to escape liability for hiring decisions by saying that the function has been handed over to someone else, in this case artificial intelligence. Congress actually anticipated such a problem and crafted a solution by including the term “agent,” in the definition of employer and by making that a separate term from “employment agency.”
  13. Workday’s software according to the complaint, participates in the decision-making process by recommending some candidate to move forward and rejecting others. It allegedly incorporates artificial intelligence and machine learning into its algorithmic decision-making tools to make hiring decisions, and it software can automatically terminate or move candidates forward in the recruiting process. This is illustrated by the rejection emails that Mobley allegedly received in the middle of the night.
  14. The applicable statutes all provide that an employer may not refuse to hire employees based upon prohibited characteristics, such as race, disability, or age. In the case of the ADA, it prohibits employers from discriminating against a qualified individual on the basis of disability in regards to job application procedures and the hiring of employees.
  15. Given Workday’s allegedly crucial role in deciding which applicants get their foot in the door for an interview, its tools are engaged in conduct that is at the heart of equal access to employment opportunities.
  16. Nothing in the language of the federal antidiscrimination statutes or the case law interpreting those statutes, distinguishes between delegating functions to an automated agent v. a live human one. In fact, courts applying the agency exception have uniformly focused on the function the employer had delegated to the agent and not the manner in which the agent carries out the delegated function.
  17. Drawing an artificial distinction between software decision-makers and human decision makers potentially completely upends antidiscrimination laws in the modern era. Such a distinction would allow employers to delegate hiring, firing, promotion, compensation, benefits, and a myriad of other employment decisions to third-party algorithmic decision-making tools. Although outside human decision-makers would be required to comply with antidiscrimination laws under the agency liability doctrine, outside software tools created by those same humans would not. Such a distinction would allow employers to delegate discriminatory programs to third-party software tools with job applicants and employees having little recourse to challenge the discrimination from those tools, which just doesn’t make any sense.
  18. Workday qualifies as an agent because it tools are alleged to perform a traditional hiring function of rejecting candidates at the screening stage and recommending who to advance to subsequent stages, through the use of artificial intelligence and machine learning.
  19. Software vendors would not qualify as agents if they have not been delegated responsibility over traditional employment functions. For example, if they are not participating in the decision over whom to hire or whom to reject, they would not be an agent of the employer.

 

III

Court’s Reasoning That Workday Is Not an Employment Agency

 

  1. The applicable statutes define employment agency in pretty much the same way. More specifically, any person regularly undertaking with or without compensation to procure employees for an employer or to procure for employees opportunities to work for an employer. The wording among the statutes is not precisely the same but the meaning is.
  2. There are no allegations in the complaint that Workday brings job listing to the attention of those looking for employment. In fact, it is just the opposite where job applicants have to find positions on their own and then Workday takes it from there once they apply.
  3. Screening applicant using discriminatory algorithmic tools is not the same thing as alleging an entity finds candidates for employers.

 

 

 

IV

Court’s Reasoning That Plaintiff’s Disparate Impact Claim Can Proceed

 

  1. To make a prima facie case of disparate impact, a plaintiff has to show: 1) a significant disparate impact on a protected class or group; 2) identify the specific employment practices or selection criteria at issue; and 3) show a causal relationship between the challenged practices or criteria and the disparate impact.
  2. Plaintiff has sufficiently alleged the specific employment practice, i.e. the use of algorithmic decision-making tools in a discriminatory manner that screen out applicants. In particular, the amended complaint alleges that these tools rely on biased training data and information obtained from pymetrics and personality tests on which applicants with mental health and cognitive disorders perform more poorly.
  3. The complaint alleges that there is a common component discriminating against applicants based on a protected trait, which is supported by allegations that Mobley was rejected from over 100 jobs that he was allegedly qualified for, across many different industries and employers.
  4. Mobley applied to and was rejected from over 100 jobs for which he was allegedly qualified. The common denominator in those rejections was Workday, which provided the hiring companies with a platform for application intake and screening. In a traditional employment discrimination case, this kind of data would be analogous to having over 100 qualified applicants like Mobley (African-American, over 40, and suffering from depression and anxiety), all strike out for jobs with one employer.
  5. Mobley’s situation is even more compelling because he struck out with a whole range of employers across multiple industries using Workday’s platform, including for a job with the company that he was already doing as a contractor. The 0% success rate at passing Workday’s initial screening, combined with the complaint’s allegations regarding bias and Workday’s training data and tools reliance on information from pymetrics and personality tests, plausibly supports an inference that the algorithmic tools disproportionally reject applicants based on factors other than qualifications.
  6. Causation is present in light of the sheer number of rejections and the timing of those decisions when combined with the complaint’s allegations that Workday’s AI systems rely on biased training data. The causation element is also supported by the complaint’s citation to academic and other literature about bias in data models and algorithms, as well as Amazon’s since abandoned the attempt at using a facially neutral hiring algorithm that had a disparate impact on female candidates.

 

V

Court’s Reasoning That Plaintiff’s Disparate Treatment Claim Cannot Proceed

 

  1. To state a claim for disparate treatment, a plaintiff has to show: 1) he is a member of a protected class; 2) he would qualify for his position; 3) he experienced an adverse employment action; and 4) similarly situated individuals outside his protected class were treated more favorably, or other circumstances surrounding the adverse employment action give rise to an inference of discrimination.
  2. Complaint certainly made sufficient allegations showing that Mobley was qualified for the position for which he was rejected from.
  3. Mobley sufficiently alleged that he disclosed his protected traits when applying for the positions when he claimed that Workday can discern an applicant’s demographic information based on other inputs correlated with race or another protected classification. For example, he disclosed his degree from a historically black college university and his age.
  4. Mobley simply cannot show that Workday intended it tools to be discriminatory. However, if discovery should reveal otherwise, Mobley is free to amend his complaint at that time.

 

 

VI

Court’s Reasoning That Plaintiff’s Aiding And Abetting Claim Under The California Antidiscrimination Law Cannot Proceed

 

  1. Mobley sued claiming that Workday aided and abetted the discrimination. To prove up such a claim, a plaintiff has to allege: 1) is employer subjected him to discrimination; 2) the alleged aider and abettor knew that the employer’s conduct violated the California antidiscrimination law; and 3) the alleged aider and abettor gave the employer substantial assistance or encouragement to violate the California antidiscrimination law. Those claims don’t work because he does not allege that any of the specific companies he applied to discriminated against him nor that Workday allegedly knew that the conduct of those employers were discriminatory.

 

 

VII

Thoughts/Takeaways.

 

  1. What kind of preventive steps can be taken by AI companies to minimize these kinds of lawsuits. For that, you should read Keith E. Sonderling (outgoing EEOC Commissioner), Bradford J. Kelley, and Lance Casimir, The Promise and The Peril: Artificial Intelligence and Employment Discrimination, 77 U. MIA L. Rev. 1 (2022). Available at: https://repository.law.miami.edu/umlr/vol77/iss1/3 . On pages 75-80 of that article, Commissioner Keith Sonderling and his co-authors set forth several steps that are well worth keeping in mind. Those steps are: 1) know your data. That is, be vigilant about developing, applying, and modifying the data utilized to train and run the recruiting programs and algorithms used to screen and evaluate potential candidates and applicants. The data should be as complete as possible with no missing or unreliable factors, but the questions needing the answers, and also be transparent enough to provide statistically relevant results. Also, if using AI for an employment decision making, avoid potentially biased data from sources such as social media and data brokers as those can be error-prone; 2) make sure you are transparent and explain everything. Transparency promotes the visibility of processes, the accessibility of systems, and the reporting of meaningful information, and explainability fosters trust in the process; 3) monitor and audit AI uses. That is, monitor both qualitatively and quantitatively continually and/or at least once a year, memorialize the findings; 4) supervise the process. That is, charge a person or team of people with overseeing the processes and results of AI tools in order to ensure the tools are not only performing legitimate objectives, but also avoiding improper outcomes; 5) understand vendor liability. Employers need to carefully review and negotiate any contracts they have with vendors providing the services. It is particularly important for companies purchasing AI hiring tools to ensure that vendors attest to the fairness and integrity of the product while negotiating the proper indemnification clauses that anticipate potential government investigation. Employers need to be aware that they could be held liable if the vendors discriminate against candidates based on protected characteristics while using AI tools; and 6) employers need to be aware of the emerging patchwork of federal, state, and local laws, rules, and regulations regulating AI use.
  2. This case holds that if a software company takes on decisions-such as hiring, promotion, termination of employees, etc.- they may have independent liability as an employer for discrimination based upon a protected characteristic.
  3. Also, keep in mind that the ADA is a nondelegable duty, as we discussed here. In other words, an employer cannot delegate to others duties that it is responsible for. If it does, then the entity getting the delegation may also be liable as an employer.
  4. The ADA as well as the other nondiscrimination statute discussed in this blog entry allow for both disparate impact and disparate treatment claims. While disparate treatment is far more common in the ADA world than disparate impact, disparate impact is still a viable claim, especially in a situation such as the one involved here.
  5. While the state law claim did not work out here, attorneys on the plaintiff side should always keep in mind the possibilities of state law claims being involved as well.
  6. Starting in my early editions of Understanding the ADA, I raised the issue of personality tests as being violative of the ADA. The seminal case on that is Karraker v. Rent-a-Center Inc., 411 F.3d 831 (7th Cir. 2005), which can be found here.

My thoughts go out to everyone in the Houston area and in Texas dealing with the aftermath of hurricane Beryl.

 

The blog entry of the day is about a case that came to me from Anne Cullen, a reporter with law 360. She wrote an excellent article on it, here (subscription required). The case is Huber v. Westar Foods, Inc., No. 23-1087 (8th Cir. July 1, 2024), here. It deals with several issues worth exploring, including: the honest belief rule; whether failure to accommodate claims require an adverse action; whether FMLA interference is the same as ADA interference in terms of the way we have discussed ADA interference in the blog; and whether FMLA retaliation and ADA retaliation are the same.

 

As usual, the blog entry is divided into categories and they are: facts; majority opinion that the honest belief rule is not unlimited; if failure to accommodate cases require an adverse action, it isn’t much of one; FMLA interference and ADA interference are the same but not as we have come to think of interference in the blog; FMLA retaliation and ADA retaliation are the same; the concurring and dissenting opinion; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

Westar foods operates a number of Hardee’s restaurants in the Midwest, employing more than 200 people. Soon after Huber started working at Westar, she was diagnosed with diabetes. In March 2019, Huber had to start taking insulin, including at work. Over the course of her employment, Huber’s insulin dosage increased. To manage her diabetes, Huber needed a room temperature location where she could store her insulin. The restaurant’s kitchen and office ran upwards of ninety degrees, and Huber struggled to find a room temperature place for insulin storage. As such, she asked her district manager at the time, Matt Thayer, for help finding suitable storage, but he responded, “That’s a [you] problem, not a [me] problem.” After Cindy Kelchen became Huber’s district manager in September 2019, Huber renewed her request for help finding a room temperature location for her insulin, and Kelchen advised storing it in the freezer. When Huber pointed out that the freezer was not room temperature, Kelchen responded, “Then I don’t know what to tell you.”

In addition to insulin storage, Huber also needed to find time during her shift to eat a meal so she could take her insulin. Huber was often too busy to take meal breaks during her shifts, so she sought help from Kelchen. Kelchen responded by telling Huber to get better at time management.

In December 2019, Huber began to feel sick because of her diabetes. When Huber woke up for her shift on the morning of December 20, her blood glucose level was low, and she was experiencing symptoms consistent with hypoglycemia.[1] Indeed, because of her blood glucose level, Huber “felt out of it” and did not know who or where she was. Huber realized she needed to go to work but then forgot and became confused as to what was happening or where she was supposed to be. Eventually, Huber was able to drive herself to a nearby doctor’s office where she was given an IV and medications that sedated her.

Throughout the day of her stay at the Dr.’s office, Huber called her son and her boyfriend on multiple occasions. Both reported that she was groggy and incoherent and that her communication was all over the place and difficult to comprehend.

On the day of the diabetic episode, Westar discovered that the plaintiff had not come in to work when a customer notified the district manager that the store was not open. The district manager tried calling the plaintiff who did not answer, so the district manager called plaintiff’s son, who is listed as her emergency contact. The son told the district manager that the plaintiff was at the Dr.’s office and that her levels were off and that the plaintiff would call back. The plaintiff did not end up calling the district manager on that day. To get a ride home, her boyfriend had to use an app to locate where the plaintiff was as she was unable to convey to her boyfriend the directions. When she arrived at her home, she was delirious, disoriented, and ill, so the boyfriend decided to stay overnight out of concern for her safety.

Westar’s attendance policy has a “call-in” requirement, which states that if a store manager is going to be late for work or if they are unable to work, they must call their district manager immediately and at least two hours prior to the start of their shift “when possible.” Additionally, the attendance policy states that “[t]exting, emailing or leaving a message is not” an acceptable way to notify management of an absence or tardiness. Huber was aware of the call-in policy, so immediately upon awaking, she called Kelchen and emailed her a doctor’s note excusing her from work through December 26. On the call, Huber conveyed her experience and the nature of the diabetic episode to Kelchen. Kelchen took notes of the conversation and wrote that Huber was at the doctor’s office because “her levels of her diabetic [sic] was off.” During the call, Kelchen was yelling at Huber; indeed, her voice was so loud that it woke Grondin, who was asleep in an adjacent room. When Kelchen asked Huber why she did not notify her in accordance with the call-in policy on either December 20 or 21, Huber explained how the diabetic episode made it extremely difficult to call, mentioning to Kelchen that she could do an internet search to understand the symptoms better. Kelchen did not understand or believe that Huber could not have called, especially when she was able to call her boyfriend and son and drive herself to the doctor’s office. During the conversation, Kelchen asked Huber five times why she did not make a “simple phone call” to inform Westar about her absence.

Immediately following her call with Huber, Kelchen called Frank Westermajer, Westar’s owner and president, to convey her conversation with Huber. It is undisputed that during the call, the decision was made to fire Huber when she returned from sick leave on December 26. The parties disagree as to whether Westermajer was the sole decision-maker, or whether Kelchen was also a decision-maker.

From there, things went from bad to worse. Plaintiff requested FMLA paperwork but never received any. At a follow-up Dr.’s appointment, the doctor wrote another note saying she should be out of work through January 2 due to her diabetes. Once again, plaintiff requested paperwork but never received anything or even a response. Instead, the HR manager requested a meeting that afternoon despite her awareness of plaintiff’s medical leave. The HR manager planned to fire the plaintiff at the meeting. Plaintiff declined the meeting because she was not stable, provided a new Dr.’s note, and once again asked for FMLA paperwork. Since plaintiff’s sick leave was extended, the meeting did not occur, and the HR manager sent plaintiff a termination letter. The termination letter, in addition to terminating her, also said that they would decline FMLA leave.

Plaintiff sued alleging that Westar interfered with her rights under FMLA, retaliated against her in violation of the FMLA, and also violated the ADA by discriminating against her on the basis of her disability. The District Court granted summary judgment and plaintiff appealed.

II

Majority Opinion That the Honest Belief Rule Is Not Unlimited

 

  1. Where an employer seeks to assert a good faith argument (the honest belief rule), the underlying reason for firing must be sufficiently independent from the protected status or activity. If the reason for an employer’s adverse employment action is so inextricably related to the disability, those reasons cannot be considered independently of one another. Finally, where a disability caused missed work and the missed work caused the termination, it is not much of a stretch to conclude that the disability caused the termination.
  2. In a footnote, the court noted that: 1) accommodation and termination claims are two sides of the same coin where the disability may have caused the conduct and the conduct caused the termination; 2) for purposes of the ADA, conduct resulting from a disability is considered to be part of the disability, rather than a separate basis for termination; 3) the link between the disability and termination is particularly strong where it is the employer’s failure to reasonably accommodate a known disability that leads to the discharge for performance inadequacies resulting from that disability; 4) employers have a duty under the ADA to reasonably accommodate an employee’s known disability; and 5) an employer may violate the ADA where fails to make a good-faith effort to assist the employee in seeking accommodations and the employee could have been reasonably accommodated but for the employer’s lack of good faith.
  3. A reasonable jury could conclude that plaintiff’s diabetic episode was not independent from her firing. Although Westar argued that its termination was underscored by plaintiff’s failure to follow the call-in policy on two prior occasions, that worked against Westar because they did not terminate her on those occasions, neither of which were related to her disability.
  4. Whether an employee’s disability caused the conduct that violated company policy and whether the employer acted in good faith are both questions of fact.
  5. Plenty of evidence exists to show that Westar’s arguments that pretext was not involved in the termination do not hold up. For example, plaintiff was yelled at when she tried to explain what was going on. There was also a close proximity between the notification of what was going on and the termination decision.

 

III

If Failure To Accommodate Cases Require An Adverse Action, It Isn’t Much Of One

 

  1. Failing to provide an employee with reasonable accommodations can tend to prove that the employer also acted adversely against the employee because of the individual’s disability.
  2. Plaintiff presented evidence that the district managers (there were two different ones during the time of these occurrences), were ambivalent toward plaintiff’s insulin storage and meal break requests. She also provided evidence of the district manager and the HR manager share contempt toward accommodating her sick leave after the diabetic episode. The district manager not only yelled at plaintiff over the phone on December 21, she also equivocated on whether she expected plaintiff to find others for her shifts despite her sick leave. The district manager’s expectation that plaintiff work while sick is backed up by other evidence as well. Finally, the HR manager and the district manager requested a meeting with the plaintiff even though they were aware of plaintiff’s Dr.’s note using her from work through December 26.
  3. Westar’s own records indicate that they knew about plaintiff’s diabetes well before they terminated her employment. The fact that Westar was aware of plaintiff’s disability yet continues to deny awareness of her disability is strong evidence of pretext.

 

IV

FMLA Interference and ADA Interference Are The Same But Not As We Have Come To Think Of Interference In The Blog

 

  1. An employer’s action that deters an employee from participating in protected activity constitutes an interference or restraint of the employee’s exercise of his rights.
  2. Interference includes manipulation by a covered employer to avoid responsibilities under FMLA.
  3. To establish an FMLA interference claim, an employee must show: 1) they were eligible for FMLA leave; 2) the employer was on notice of the need for FMLA leave; and 3) the employer denied the employee an FMLA benefit.
  4. Magic words are not required to seek FMLA leave.
  5. An employer’s duties are triggered when the employee provides enough information to put the employer on notice that the employee may be in need of FMLA leave.
  6. For an employer to be on notice of the need for FMLA leave, they have to be aware of a “serious health condition.”
  7. An employee has to notify the employer of their request for FMLA leave as soon as practicable.
  8. Whether an employer is on notice prior to its termination decision of a request for FMLA leave, is a question of fact for the jury.
  9. An FMLA interference claim merely requires proof that the employer denied the employee’s entitlement under the FMLA.

 

V

FMLA retaliation and ADA retaliation are the same

 

  1. FMLA retaliations claims require proof of retaliatory intent.
  2. To prove a FMLA retaliation claim, a plaintiff have to show: 1) they engaged in protected conduct; 2) they suffered a materially adverse employment action; and 3) the materially adverse action was causally linked to the protected conduct.
  3. A materially adverse action is one that deters a reasonable employee from making a charge of employment discrimination. Termination from employment is one such adverse action.

 

VI

Concurring and Dissenting Opinion by Judge Stras

 

  1. Judge Stras concurs with the majority except for how the majority opinion narrows the honest belief rule. In particular, the narrowing of the honest belief rule will require an employer to show that the asserted justification is sufficiently independent of the employee’s disability even where an employee has repeatedly violated the workplace rule or engaged in misconduct.
  2. Nothing in the majority opinion should be construed that employers can not discipline employees for misconduct.
  3. Narrowing the honest belief rule contradicts ADA causation principles per McDonnell Douglas, which requires the disability to be a motivating factor.
  4. Termination must be based on disability and not just independent of it with respect to the ADA.
  5. Misconduct related to a disability is not itself a disability and may be grounds for dismissal. That is, workplace misconduct is a legitimate and nondiscriminatory reason for terminating employment even when the conduct is related to a disability.
  6. An employer who fires a worker because of a disability violates the ADA, but if the employer fires the worker because the worker is unable to do the job, then there is no violation of the ADA.

 

VII

Thoughts/Takeaways

 

  1. The majority opinion goes cutting edge here by narrowing the focus of the honest belief rule where the conduct is caused by a disability. That is not to say that misconduct cannot be the basis for terminating an employee. Rather, it says that the honest belief rule won’t fly if the conduct is disability related. That doesn’t necessarily mean that the defendant loses when the honest belief rule does not apply.
  2. Whether the employee’s disability caused the conduct of violated company policy and whether the employer acted in good faith as a result, are questions of fact.
  3. A failure to accommodate is quite probably, if not always, an adverse action. The Supreme Court decision in Muldrow (see also §VII(5) of this blog entry), certainly seems to suggest as much.
  4. The court says that FMLA interference and ADA interference are the same. Keep in mind, that we have talked about cases, such as here, stating that ADA interference borrows from the Fair Housing Act and not from the FMLA. So, interference under the ADA may be different than interference under the FMLA. It will be interesting to see how the U.S. Courts of Appeals deal with the question of whether interference gets taken from the FMLA or whether it gets taken from the Fair Housing Act.
  5. Retaliation cases typically use the phrase materially adverse action. You have to wonder about that phrase in light of the Supreme Court opinion in Muldrow, which we discussed here. Nevertheless, in retaliation cases, the phrase has its own meaning as being something that deters a reasonable employee from making a charge of employment discrimination.
  6. Judge Stras’s concurring and dissenting opinion makes the argument that the narrowing of the honest belief rule by the majority may not hold up upon closer analysis. So, this sets up a situation where plaintiffs faced with the honest belief rule will be citing the majority opinion and defendants will be citing the concurring and dissenting opinion. It will be very interesting to see how the Eighth Circuit’s narrowing of the honest belief rule when disability related conduct is involved will play out around the country.
  7. Failure to engage in the interactive process violates the ADA.
  8. If an employer clearly knows of a disability but in litigation claims that it didn’t, that dichotomy strongly suggests pretext. In short, positions taken in litigation when compared to the actual facts, matter.
  9. Both the FMLA and the ADA takes similar approaches to magic words not being required.
  10. “Serious health condition,” is a term of art with respect to the FMLA.
  11. The decision does not seem to be published.
  12. One wonders whether a rehearing en banc will be sought with respect to the majority’s narrowing of the honest belief rule. One also have to think that if this particular issue is appealed to the Supreme Court, a majority of the court would be very receptive to Judge Stras arguments made in his concurring and dissenting opinion.

As I mentioned at the beginning of the week, it was pretty clear that another blog entry was warranted before Monday in light of the Supreme Court ending its term and my travel schedule. So here goes. There are three cases to discuss that are relevant to the ADA universe. They are: Loper Bright Enterprises v. Raimondo; Security and Exchange Commission v. Jarkesy; and City of Grants Pass, Oregon v. Johnson. All three cases have implications for the ADA universe. As usual, the blog entry is divided into categories and they are: Loper Bright; Grants Pass, and Jarkesy. My thoughts/takeaways will appear in each section rather than at the end of the blog entry.

 

I

Loper Bright

 

When this case was argued, it looks like, as we discussed here, what would happen would be that Chevron would become very much like Kisor. It didn’t work out that way. In a 6-3 decision along ideological lines, the majority got rid of Chevron entirely and replaced it with Skidmore deference, which means final regulations are just persuasive authority. How persuasive is up to the court considering the context of the case.

 

There are several thought takeaways regarding this:

 

  1. This seems to create a bit of a strange situation where agency interpretation of their own regulations per Kisor, which we discussed here, potentially gets a higher level of judicial deference than final regulations. That is a bit of a strange result considering once a rule goes through the Administrative Procedure Act processes, the rule is considered to have the force of law.
  2. Under some circumstances a regulation can become its own cause of action. How that happens is a bit complicated. The result of this case makes you wonder whether a regulation could ever become its own cause of action since every regulation is now just persuasive authority to varying degrees (but see below discussion about how legislative intent is going to matter more than ever).
  3. Businesses, at least according to the Atlanta Journal-Constitution this morning, were hailing this ruling, but I am not sure that kind of thinking is best for business. If Chevron did anything, it brought certainty to legal advising. This decision puts just about everything up in the air. Businesses like certainty and this decision creates a lot of uncertainty.
  4. Final regulations can only be thrown out if they are arbitrary and capricious. Does this case mean that courts essentially will have to start operating similar to the Illinois Joint Commission on Administrative Rules, which has as one of its critical roles determining whether a rule goes beyond legislative intent. It would seem to me that whether a final regulation becomes incredibly persuasive to a court after this decision will vary depending upon how close to legislative intent the regulation actually is. Since everyone is a textualist now, that analysis would have to start with the plain meaning of the statute.
  5. It isn’t surprising that this particular court threw out Chevron. Several of the justices, including but not limited to those appointed by Pres. Trump, had expressed severe misgivings with the doctrine in the past. Justice Scalia who actually authored Chevron became a fierce advocate against it. A few months back, I actually read an opinion piece by his son talking about how some agencies would take advantage of that doctrine to give themselves extreme flexibility when it came to issuing final regulations. He claimed that he never did that while heading a federal agency but knew of discussions that talked about the extreme flexibility agencies had with coming up with the regulations in light of Chevron.
  6. Look for administrative law to be a growth industry for lawyers going forward. You can expect a lot more regulatory challenges to final regulations and, as noted above, those regulatory challenges may be easier. On the other hand, if legislative intent becomes the marker, you may see a lot more litigation over whether certain regulations create their own cause of action. It is entirely possible after this case, that more regulations than ever will create their own causes of action. Finally, as a practical matter, arbitrary and capricious may no longer be the standard for whether a final regulation survives.

 

II

Grants Pass

 

In this case, the Supreme Court allowed cities to come up with ordinances, including making camping outside a misdemeanor among other things, in order to combat the homelessness crisis. The majority said that the cruel and unusual punishment clause is about punishment and not the criminal statute in the first place. So, the cruel and unusual punishment clause was not activated. Even if it was activated, the approaches of the various cities to deal with homelessness did not rise to the level of cruel and unusual punishment.

 

Thought takeaways on this case include:

 

  1. Cities now have far more tools to deal with the homeless crisis. Hopefully, the tools used and the approaches will be respectful of the homeless community. All of that remains to be seen. Clearly, cities and communities were very frustrated by previously being limited, especially in the Ninth Circuit, as to what they could do to deal with homelessness.
  2. The ADA still applies, so when developing further tools, cities will want to keep in mind Title II of the ADA.

 

III

Jarksey

 

In this case, the Supreme Court said that whenever a civil penalty is contained in a statute and the appropriate agency seeks a civil penalty, that case must be heard in an Article III court. Further, a party to such a case has a right to a jury trial under the seventh amendment because a civil penalty is in the nature of a common law suit. The case turned upon whether a “public right,” was involved. The majority said it wasn’t while the dissent said it was. I am not a scholar in the constitutional doctrine of “public rights,” so I can’t offer an opinion on whether the majority or the dissent got it right.

 

Thought takeaways on this case include:

 

  1. Title III of the ADA, 42 U.S.C. §12188(b)(2) allows the DOJ to seek civil penalties for violations of Title III. Under the ADA system, such cases would be heard in Article III courts anyway. However, now there is a right to a jury trial. Recall, Title III only allows for injunctive relief and attorney fees. DOJ can seek civil penalties and advocate for damages for a party. So, you might see defendants request a jury trial now when DOJ takes on a case against them that includes a civil penalty. Certainly, the right to a jury trial changes the calculus of the litigation.
  2. A question remains as to how this affects the securities industry more widely, if at all, such as in the area of broker-dealer regulation (while I do arbitrate on FINRA matters from time to time, I am not by any means a securities law practitioner).

 

A final note, while it has nothing to do with the ADA, the Supreme Court did say you can expect the Trump immunity decision on Monday.

 

Have a great week everybody and stay cool.

This may very well be a week with two blog entries for three reasons. First, there is the blog that will be the subject of this blog entry. Second, if I have this figured right, this is the last week that the Supreme Court has for issuing opinions before their summer recess. I am particularly waiting on the Loper Bright case, which we discussed here. Third, the week of July 1, I will be out of town all week.

 

Turning to the blog entry for this week, it is a case out of the Supreme Court of New Jersey that offers a roadmap for dealing with ESA’s in terms of how the process works with respect to the burden of proof and the like. It also illustrates just how fine the line is between ESA and a psychiatric service animal. The case of the day is Players Place II Condominium Association Inc. v. K.P. and B.F., here. It was decided by the Supreme Court of New Jersey on March 13, 2024. By way of full disclosure, I have represented individuals on very similar fact patterns. As usual, the blog entry is divided into categories, and they are: facts; LAD/FHA overview; proper framework for addressing ESA’s; applicability of the proper framework up to the facts of this case; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

Players Place II is a condominium community Gloucester Township, New Jersey. Defendant bought a unit there in May 2018. Pets are allowed but they must weigh less than 30 pounds at maturity. The policy exempts dogs used for the blind from the weight restriction but does not mention emotional support animals. In August 2018, defendant’s girlfriend and now spouse, moved into the unit. She has several different mental health conditions.

 

On August 2, 2018 the defendants notified the HOA that they were considering adopting an emotional support dog that would likely be over the 30 pound pet limit and asked what medical documentation would be needed. On August 5, 2018, a dog was adopted from a shelter to live with them as an ESA. At maturity, the dog would weigh more than 30 pounds. In fact, she weighs 63 pounds in January 2019. The HOA pushed back hard, which led to the owners of the unit saying that the dog was an emotional support dog and furnishing documentation from a psychiatric nurse practitioner saying that the now wife suffers from mood and anxiety disorder and would benefit from an ESA.

 

In response, HOA counsel said that they would immediately commence an action at law seeking a court order barring any dog weighing more than 30 pounds. In response to the HOA, the owners of the unit said that they would file a complaint with HUD if the HOA denied the claim.

 

In late September early October 2018, the HOA’s Board President saw the owners walking the dog on the condominium grounds. At no point did anyone file a noise complaint or claim that the dog caused any property damage. On October 3, 2018, the HOA filed a complaint against the owners. In response, the owners of the unit claimed that the HOA had violated the New Jersey Law Against Discrimination (LAD) and the Fair Housing Act (FHA).

 

B.F., the wife of K.P., has bipolar II disorder. She also has panic disorder, PTSD, depressive episodes, as well as ADHD. At trial, the licensed clinical social worker testified that the dog was making a big positive difference for B.F. For example, B.F.’s depressive episodes were shorter and more mild to moderate than before. She also improved her ability to cope with stressors.

Also at trial, a licensed clinical psychologist testified that B.F. had a long history of mental illness dating back to the seventh grade. She had experienced severe anxiety and depression at a young age and was placed on medication then. Her medications presently included two mood stabilizers, an antidepressant, an antipsychotic, and Adderall for the ADHD. She also testified that before getting the dog that B.F. could not be alone in the condo. With the dog, she is now comfortable staying alone in the condo as long as she had the dog with her. When she is panicking or decompressing, the dog will sit in the closet with her for hours and lick her face when she cries. In the opinion of the licensed clinical psychologist, the dog keeps B.F. stable.

 

B.F. at trial explained that she had struggled with mental health issues in middle school and identified her diagnosis, medication, treatment providers, and ongoing symptoms. She also noted that she had raised the idea of an emotional support animal with her therapist. She had a larger dog while growing up that she always found comforting. Smaller dog did not provide her with the same level of relaxation because they were loud and yappy and gave her more anxiety. Instead, she bonded with her adopted larger dog right away. B.F. explained that the dog lies with her in the closet when she is going through an episode and licks away her tears. She also added that her symptoms have dramatically decreased in length and frequency since she has had the dog.

 

II

LAD/FHA Overview

 

  1. The New Jersey Law Against Discrimination define disability as a: “physical or sensory disability, infirmity, malformation, or disfigurement which is caused by bodily injury, birth defect, or illness including epilepsy and other seizure disorders, and which shall include . . . any mental, psychological, or developmental disability, including autism spectrum disorders, resulting from anatomical, psychological, physiological, or neurological conditions which [1] prevents the typical exercise of any bodily or mental functions or [2] is demonstrable, medically or psychologically, by accepted clinical or laboratory diagnostic techniques. [N.J.S.A. 10:5-5(q)]
  2. Case law has considered various mental illnesses and psychological disorders as disabilities under the LAD (New Jersey Law against Discrimination), such as: ADHD; depression; other psychiatric disorders; posttraumatic stress disorder; anxiety; and panic attacks.
  3. When a disability is not readily apparent, i.e. non-observable, the LAD requires expert medical evidence.
  4. Regulations implementing the LAD make it, “unlawful for any person to . . . [r]efuse to make reasonable accommodations in rules, policies, practices or services, or reasonable structural modifications, when such accommodations or modifications may be necessary to afford a person with a disability equal opportunity to use and enjoy a dwelling, including public and common areas.” This regulation applies to condominium associations.
  5. Under the FHA, it is unlawful to discriminate in the sale or rental, or otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap. 42 U.S.C. §3604(f)(1). Discriminatory housing practices include a refusal to make reasonable accommodations and roles, policies, practices, or services, when such accommodations are necessary to afford a person with a disability equal opportunity to use and enjoy a dwelling.
  6. The LAD is an equivalent agency to HUD. Accordingly, the LAD has to be construed in a way that permits the LAD to qualify as a certified agency. So, the LAD must provide rights, procedures, and remedies substantially equivalent to those provided in the FHA.
  7. Critically, the LAD defines disability more broadly than the FHA because unlike the FHA, the LAD does not include any requirement that a disability result in substantial limitation of a major life activity. See ¶ 1 of this section.

 

III

Proper Framework for Addressing ESA’s

 

  1. The disabled tenant has the initial burden to show the requested accommodation is necessary to afford him or her or them an equal opportunity to use and enjoy a dwelling.
  2. The burden of proof then shifts to the housing provider to show that the requested accommodation is or was unreasonable.
  3. Whether the pet is of sufficient assistance to a tenant and whether the accommodation is unreasonable involve fact sensitive inquiries. The costs to the provider and the benefits to the tenant both merit consideration. The requested accommodation must enhance a disable plaintiff’s quality of life by ameliorating the effects of the disability. However, courts may also consider the likely costs or administrative burden to be incurred by the housing provider to accommodate an ESA.
  4. Federal courts have similarly found that a reasonable accommodation includes the use of an ESA, despite the existence of an HOA rule prohibiting such an animal (the court cites to a case we discussed in our blog here).
  5. Both the agency implementing the LAD and HUD have published guidance about ESA’s. The Division implementing the LAD has advised the public that a housing provider may need to make an exception to a no pet policy to permit a tenant with a disability to keep an ESA.
  6. If a disability and disability-related need for an ESA are not obvious or otherwise known, a housing provider may request reliable documentation from the person’s treating healthcare professional. The housing provider, in turn, must conduct an individualized assessment of the request and may deny it if allowing an ESA would create an undue burden on its operations.
  7. The HUD guidance (which we discussed here), extends beyond service animal to animals providing therapeutic emotional support for individuals with disabilities that alleviate at least one identified symptom or effect of a physical or mental impairment. Neither ESA’s nor service animals are subject to pet policy rules.
  8. Housing providers may not limit the breed or size of a dog used as a service animal or support animal just because of the size or breed. However, they can refuse a request if the specific animal poses a direct threat to the health or safety of others that cannot be eliminated or reduced to an acceptable level.
  9. According to HUD, residents can request a reasonable accommodation either before or after requiring an assistance animal. If the request lacks information about a person’s disability or the need for an animal, HUD encourages housing providers to engage in good faith dialogue with the requestor, i.e. the interactive process. If a request is denied because it would impose a fundamental alteration to the nature of the provider’s operations or an undue financial and administrative burden, the housing provider should engage in the interactive process to discuss alternative ways to accommodate a person’s disability related needs.
  10. The Division implementing the LAD echoes HUD’s guidance in its brief it filed.
  11. In short, in a case like this: 1) a resident of a condominium complex is entitled under state and federal law to request an accommodation to a pet policy in order to keep an emotional support animal; 2) The individual must first demonstrate they have a disability under the LAD; 3) In addition, they must show that the requested accommodation may be necessary to afford them an “equal opportunity to use and enjoy a dwelling.” N.J.A.C. 13:13-3.4(f)(2); 4) The housing provider then has the burden to prove the requested accommodation is unreasonable; 5) As part of that process, the parties should engage in a good-faith, interactive dialogue to exchange information, consider alternative options, and attempt to resolve or narrow any issues; and 6) If that collaborative effort fails and litigation follows, courts will inevitably need to balance the need for, and benefits of, the requested accommodation against the costs and administrative burdens it presents to determine whether the accommodation is reasonable.
  12. In a footnote, the New Jersey Supreme Court notes that service animals have a completely different analysis and are not subject to a balancing test.

 

IV

Applicability of the Proper Framework (§II of This Blog Entry). to the Facts of this Case

 

  1. B.F. has a disability as experts on both sides diagnosed her with psychological disabilities.
  2. The proofs about the medical condition were developed at trial. However, the HOA could have asked for more information in response to the initial request for an accommodation. Under HUD guidance, housing providers can ask individuals to provide information confirming they have a disability and that they need a support animal. A housing provider cannot ask for medical records or medical examination.
  3. A resident has the initial burden to demonstrate the accommodation they seek is necessary in order to afford an equal opportunity to use and enjoy a dwelling. This requirement asked whether the requested accommodation ameliorates the disability’s effects. In essence, the critical question is whether the accommodation alleviates at least one symptom of the disability and not whether the accommodation will cure or eliminate the disability. Here, there was plenty of evidence showing that the dog alleviates at least one symptom of her disability.
  4. LAD does not require that a mental health professional recommend or prescribe an emotional support animal. It also does not require that the resident establish a specific need for a dog exceeding the HOA’s weight limit.
  5. When possible, it is preferable to engage in a collaborative conversation in advanced. That said, it isn’t always possible to know whether an ESA that is acquired will help ameliorate symptoms.
  6. An ESA has to be allowed unless it fundamentally alters the housing provider’s operations or imposes an undue financial or administrative burden on the housing provider.
  7. Whether the animal has been trained is not a relevant consideration because ESA’s are not individually trained to perform specific tasks associated with their owner’s disability.
  8. This kind of case is not a contract case at all but rather a case sounding in disability discrimination and should be dealt with in that way.

 

IV

Thoughts/Takeaways

 

  1. As mentioned at the top, I have represented individuals in a very similar matter. A very critical point to take from this case is that the line between an ESA and an animal used to ameliorate symptoms of a person with MH can be very fine indeed. Also, as this case notes, service animals are not subject to this balancing test. An argument can be created from the facts in this opinion, that the dog discussed in this case was actually a service animal. In particular, when B.F. was in severe distress, the dog would join her in the closet and lick away her tears. If the dog is recognizing and responding to that situation and is being rewarded for doing that, then I would argue that the dog has been trained to recognize and respond to that situation and is a service animal.
  2. State laws do not always define a disability in the same way as the ADA and the FHA do. New Jersey is one such state. Illinois is another. New Jersey goes even further than the ADA and the FHA because it does not require a substantial limitation on a major life activity. Instead, it has alternative ways to establish a disability.
  3. I have seen quite frequently a resident tell me they have an ESA. It doesn’t take much questioning to find out that the ESA is actually a psychiatric service animal trained to deal with their MH in a variety of ways. Once the dog is a service animal, that puts the dog and the case on a completely different field.
  4. Whether an emotional support animal is involved, is a fact intensive inquiry.
  5. In my opinion, a service animal can be one utilized only in the home. Mine certainly is. I am, as everyone knows, a deaf proud individual who functions entirely in the hearing world with Bluetooth technology, lipreading, and advanced hearing aids. I very much utilize my dog while I work virtually. However, I don’t need my dog outside of the residence I am inhabiting on a day-to-day basis. While I practice law virtually, my dog does act as a service animal by alerting me to sounds that I wouldn’t otherwise hear.
  6. The case offers an excellent roadmap for any landlord dealing with ESA requests.
  7. Hard to believe that an ESA could ever result in an undue financial or administrative burden or fundamentally alter the housing provider’s operations.
  8. Direct threat as we know from our blog is a term of art. While HUD guidance doesn’t talk about what it direct threat is, I would suggest analogizing it to the requirements set out in Chevron v. Echazabal (requiring an individualized analysis and objective evidence).
  9. This case makes clear that everything short of direct threat, fundamental alteration, or undue burden, must be attempted first before denying the ESA.
  10. With respect to ESA’s, it is unnecessary for the dog to be trained. However, as this case makes clear and I have seen in my own practice, it is not hard at all to consider a dog trained to deal with a variety of MH conditions when they flare up. Also, anybody can train their animals to be a service animal.
  11. Whenever dealing with reasonable accommodation/modification requests, always engage in the interactive process. We discussed the do’s and don’ts of the interactive process here.
  12. I am not licensed in New Jersey. When it comes to LAD, a New Jersey license attorney should be consulted.

Just recently, North Dakota enacted into their Constitution an age limit, here, for those serving in the U.S. House and the U.S. Senate. In particular, that constitutional amendment says: “no person may be elected or appointed to serve a term or a portion of the term in the U.S. Senate or the U.S. House of Representatives if that person could attain 81 years of age by December 31 of the year immediately preceding the end of the term.” I got to wondering whether this amendment will withstand scrutiny if it is ever challenged. Currently, nobody from North Dakota is in danger of activating this constitutional amendment but they certainly could be down the road. For reasons to be explained in this blog entry, if this constitutional amendment is ever challenged, that challenge will likely be successful. As usual, the blog entry is divided into categories, and they are: the constitutional challenge: U.S. Term Limits majority opinion; the constitutional challenge: U.S. Term Limits dissenting opinion; thoughts/takeaways U.S. Term Limits; and the ADA challenge. Of course, the reader is free to focus on any or all of the categories.

 

I

The Constitutional Challenge: U.S. Term Limits Majority Opinion

 

In 1995, United States Supreme Court decided the case of U.S. Term Limits, Inc. v. Thornton, here. In that decision, the U.S. Supreme Court in a 5-4 decision, threw out term limits that the voters of Arkansas had passed for U.S. House members and U.S. Senate members. The only person on the Court at the time that is still on the court is Justice Thomas, and he wrote a dissenting opinion in that case.

In throwing out the term limits, the following from the majority opinion is particularly significant.

 

  1. The Framers made clear that the opportunity to be elected was open to all.
  2. Madison said in the Federalist that the door of the legislature of the federal government was open to merit of every description, whether native or adoptive, whether young or old (emphasis added), and without regard to poverty or wealth, or to any particular profession of religious faith.
  3. The power to add qualifications is not within the original powers of the States, and is not reserved to the States by the Tenth Amendment.
  4. The Framers intended the Constitution to be the exclusive source of qualifications for members of Congress, and the Framers divested States of any power to add qualifications. In other words, neither Congress nor the States have the power to supplement the exlusive qualifications set forth in the text of the Constitution.
  5. Madison also said in the Federalist that every citizen whose merit may recommend him to the esteem and confidence of the country can be the object of popular choice. No qualification of wealth, of birth, of religious faith, or of simple profession is permitted to fetter the judgment or disappoint the inclination of the people.
  6. The Framers intended the Elections Clause to grant States authority to create procedural regulations, not to provide them with license to exclude classes of candidate from federal office.
  7. A state amendment is unconstitutional when it has the likely effect of “handicapping,” (word used in the opinion itself), a class of candidates and has the sole purpose of creating additional qualifications indirectly.
  8. The framers decided that the qualification for service in the Congress be fixed in the Constitution and be uniform throughout the country.

 

II

The Constitutional Challenge, U.S. Term Limits Dissenting Opinion

 

  1. Nothing in the Constitution deprived the people of each State of the power to prescribe eligibility requirements for the candidate seeking to represent them and Congress. The Constitution is simply silent on that. Where the Constitution is silent, it raises no bar to action by the States or the people.
  2. If the people of a State decide they would like their representative to possess additional qualifications, they have done nothing to frustrate the policy behind the qualification clauses. Anyone possessing all of the constitutional qualifications, plus some qualifications required by state law, still has all of the federal qualifications.
  3. The fact that the Constitution specifies certain qualifications that the Framers deemed necessary to protect the competence of the national legislature did not imply that it strips the people of individual States of the power to protect their own interests by adding other requirements for their own representative.
  4. The Framers did not want the federal Constitution itself to impose a broad set of disqualifications for congressional office. The Framers also did not want the federal Congress to be able to supplement the few disqualifications that the Constitution does set forth. The logical conclusion is that the Framers did not want the people of the States and their state legislatures to be constrained by too many qualifications imposed at the national level. That is not at all the same thing as an intent to bar the people of the States and their state legislatures from adopting additional eligibility requirements to help narrow their own choices.
  5. The framers actually were very aware of the policy discussion behind whether term limits should be imposed and they never explicitly ruled them out.

 

III

Thoughts/Takeaways U.S. Term Limits

 

  1. Both the majority and dissenting opinion makes clear that the framers were aware of the public policy discussion behind whether term limits could be imposed. That cuts either way with respect to term limits.
  2. It is clear from the majority opinion that the constitutional amendment in North Dakota will fail to a constitutional challenge if the amendment is challenged.
  3. Even under the dissenting opinion, a constitutional challenge might still fail. It can be argued that there is a distinction between an eligibility requirement and a qualification. Term limits would be an eligibility requirement as it doesn’t affect the qualifications for holding office. On the other hand, the age limit is most certainly a qualification for holding office.

 

IV

The ADA Challenge

 

Of course, since this is the understanding the ADA blog, you had to expect a discussion of an ADA challenge. The challenge would go something like the below.

 

  1. A constitutional amendment is part of the State’s governing structure. Therefore, Title II of the ADA applies.
  2. The ADA prohibits discrimination against a person who is regarded as having a physical or mental impairment. 42 U.S.C. §12102(1)(c). Clearly, the amendment regards persons 81 years or older as having cognitive impairments that do not allow them to perform the job of a legislator in Congress.
  3. The ADA prohibits discrimination against a person with an actual disability or who has a record of a disability. 42 U.S.C. §12102(1)(a),(b).
  4. Under title II of the ADA, a person is considered to be otherwise qualified if he or she can, with the without reasonable modification to rules, policies, or practices; the removal of architectural, communication, or transportation barriers; or the provision of auxiliary aids and services, meets the essential eligibility requirements for receiving services or participating in programs or activities provided by a public entity. 28 C.F.R. §35.104
  5. A public entity may not, directly or through contractual or other arrangements, utilize criteria or methods of administration: (i) That have the effect of subjecting qualified individuals with disabilities to discrimination on the basis of disability; (ii) That have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the public entity’s program with respect to individuals with disabilities. 28 C.F.R. §35.130(b)(3)(i),(ii). Both would seem to be satisfied by the North Dakota constitutional amendment.
  6. A public entity shall not impose or apply eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully and equally enjoying any service, program, or activity, unless such criteria can be shown to be necessary for the provision of the service, program, or activity being offered. 28 C.F.R. §35.130(b)(8). Hard to believe that the screening out would be necessary in all circumstances. The EEOC, for example, has certainly gone after healthcare entities that take that approach with respect to screening of physicians that are older.
  7. As we know, the ADA requires an individualized analysis, which the amendment to the North Dakota Constitution simply does not allow.
  8. So, there is little doubt that the North Dakota constitutional amendment regards persons as having a disability and fosters discrimination upon them. It also prevents people older than 81 years old (regardless of whether they have a disability of some kind), without cognitive impairments from being officeholders at the federal level regardless of whether reasonable modifications can be made to enable them to perform the job of the legislator.
  9. Federal law always prevails over conflicting state enactments per the supremacy clause. Meeting today
  10. In short, the 81-year-old limitation is, in my opinion, extremely likely to fail if challenged. Successful challenges could either be constitutional or based upon the ADA.

I always assumed that a dog satisfying the definitions of a service animal under the DOJ final regulations for title II and title III of the ADA would have to be automatically allowed by an employer where the employee has a service dog satisfying that definition. At least in the Eighth Circuit, that isn’t the case. The Eighth Circuit has also set up a circuit court split with respect to the case that we discussed last week. A law 360 article on this case says that plaintiff will be seeking review by the United States Supreme Court. Since there is a circuit court split, the possibility of the Supreme Court granting review increases. The case of the day is Howard v. City of Sedalia, Missouri, here. As usual, blog entry is divided into categories (I decided for organizational purposes to go about the court’s reasoning not in the order that it appears in the opinion), and they are: facts; court’s reasoning that certain arguments were not preserved properly for appeal; court’s reasoning that privileges and benefits of employment were not involved, so the dog need not be granted as a reasonable accommodation in order for plaintiff to access privileges and benefits of employment; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

Samantha Howard is a pharmacist who has suffered from Type I diabetes since infancy. While attending pharmacy school, she was diagnosed with hypoglycemic unawareness, which prevents her from knowing when her blood sugar has dropped to a dangerously low level. In March 2019, after graduating, Howard began working as a pharmacist at Bothwell Regional Medical Center (Bothwell), a facility operated by the City of Sedalia, Missouri. Howard told her supervisor, Brad Nicholson, that she has diabetes; he granted her request to keep food and drink at her desk while working alone. She did not inform Bothwell that she was on a waiting list for a diabetic-alert service dog that can detect an impending blood sugar drop to help a diabetic prevent and mitigate hypoglycemic emergencies.

In early June 2020, Howard was told a service dog (“Corry”) would be available in August. She told Nicholson and Bothwell’s Director of Human Resources and Support Services that she would need the dog by her side constantly for six months to train the dog; after that, she could go to work without the dog. She requested being allowed to bring the service dog into the main pharmacy, but not the sterile “clean room” or the “anteroom,” where employees prepare for clean room activities. Bothwell, with no prior employee request for a service animal accommodation, assembled a team of managers and medical staff to analyze Howard’s request; each member concluded that the presence of a service dog in the pharmacy was a risk to the safety of Bothwell’s patients and should not be allowed.

In August, Bothwell emailed Howard that her request to bring a service animal into only certain areas of the pharmacy was denied because “such an action would not resolve the potential risks of contamination,” but that Bothwell intended to work with Howard to find a different accommodation. When the parties could not agree on an alternative accommodation, Howard resigned on September 18. Bothwell urged her to reconsider. “[A]fter talking with counsel,” Howard declined Bothwell’s proposal that a mutually-agreed-upon third party inspect the pharmacy and determine whether her service animal would pose a risk, stating, as she repeated at trial, that she would not accept any accommodation other than bringing her service dog into the pharmacy.

Howard filed a lawsuit alleging that the failure to make a reasonable accommodation violated the ADA. After a four-day trial, the jury returned a verdict for Howard, awarding her $111,548.86 in compensatory damages and $18,451.14 in emotional damages. Defendant appealed its denial of its motion for judgment as a matter of law.

II

Court’s Reasoning That Certain Arguments Were Not Preserved Properly for Appeal

  1. Howard through her attorney, abandoned her essential function claim when she agreed not to submit a jury instruction on that issue during argument on defendant’s motion for judgment as a matter of law. It doesn’t matter that Howard submitted a proposed jury instruction and proceeded only on a benefits and privileges theory because that was the district court’s view of the case. The back-and-forth with the trial judge clearly gave Howard the opportunity to preserve an essential functions of the job argument for appeal, but counsel elected not to proceed down that path. Howard could have also cross appealed the district court’s decision not to give the proposed instruction dealing with essential functions of the job but did not do so.
  2. The issue of whether a new trial should be granted rather than judgment as a matter of law was also waived because Howard never argued in her appellate brief what issues should be available if the case were to be remanded.
  3. The argument that 29 C.F.R. §1630.2 (o)(1)(iii) as construed by the EEOC in their interpretive guidance on title I and in their technical assistance manual is an invalid agency interpretation of the governing ADA statutory provisions was not raised by Howard and is without merit.

III

Court’s Reasoning That Privileges and Benefits of Employment Were Not Involved, so the Dog Need Not Be Granted As a Reasonable Accommodation for Plaintiff to Access Privileges and Benefits of Employment

  1. EEOC implementing regulations define the term reasonable accommodation as including three distinct requirements: 1) modifications or adjustments enabling a job applicant to be considered; 2) modifications or adjustments to the work environment, which in the manner or circumstances under which the position held or desired is customarily performed, that enable an individual with a disability who is qualified to perform the essential functions of that position; and 3) modifications or adjustments enabling a covered entity’s employee with a disability to enjoy equal benefits and privileges of employment as are enjoyed by other similarly situated employees without disabilities (emphasis in opinion).
  2. In Hopman, which we discussed here, the Eighth Circuit said that the ADA intended to bar employer discrimination in providing a benefit or privilege offered to employees that does not directly affect the ability of a qualified individual to perform her job’s essential functions.
  3. Citing to the EEOC’s interpretive guidance, the court noted that the EEOC has said that an adjustment or modification that assists the individual throughout his or her daily activities, on and off the job, is a personal item that the employer is not required to provide. That is, an employer is not generally required to provide an employee with a disability with a prosthetic limb, wheelchair, or eyeglasses. Nor would an employer have to provide as an accommodation any amenity or convenience that is not job-related… That is not provided to employees without disabilities (emphasis in opinion). This obligation applies to all services and programs provided in connection with employment, and to all non-work facilities provided or maintained by an employer emphasis in opinion), for use by its employees. So, the obligation to accommodate is applicable to employer-sponsored (emphasis in original), placement or counseling services, and to employer provided (emphasis in original), cafeterias, lounges, gymnasium, auditorium, transportation and the like.
  4. EEOC guidance also says that an individual with a disability is otherwise qualified if he or she is qualified for a job, except that because of the disability, he or she needs a reasonable accommodation to be able to perform the job’s essential functions.
  5. EEOC guidance also says that when no duty exist to provide an adjustment or modification because it it is considered a personal item under the regulations, it is not a violation of the ADA to not provide that adjustment or modification (the court’s formulation here is extremely confusing but I believe (see also later in this blog as well for why I am convinced this is the case), that is what the court is trying to say.
  6. Howard did not dispute that she was qualified to do her job with or without reasonable accommodations. The district court observed that Howard did her job from March 2020 through August 2021 by her own admission and received good recommendations and got raises without a service animal. There was also no testimony that anything had changed over time.
  7. In Hopman, the Eighth Circuit said that benefits and privileges of employment: 1) refers only to employer provided services; 2) must be offered to non-disabled individuals in addition to disabled ones; 3) does not include freedom from mental or psychological pain; and 4) Hopman failed to introduce the evidence needed to prove that claim.
  8. In response to defendant’s question, as part of the interactive process, asking Howard to detail what specific parts of the job she was unable to perform because of her impairment, she responded that, “a diabetic service animal would enhance my ability to function in all aspects of my role as a pharmacist.” Such a response is a job performance argument, an argument she also made in her trial testimony.
  9. At trial, Howard was asked how the dog would allow her to enjoy the same benefits as the other employees in the pharmacy who do not have disabilities. Her response was that she imagined that other employees have the ability to manage their conditions however they see fit and with the service animal being there she was able to do the same thing, manage her diabetes and not have her employer dictate what she can and cannot do, especially when her employer has never talked to her physician or knows anything about her diabetes. This statement of Howard is also a job performance argument.
  10. The governing regulations limit an employer’s ADA duty to make this accommodation to employer-sponsored placement or counseling services, and to employer provided facilities. That limitation reflects long-standing judicial and agency efforts to keep accommodation requirements (emphasis in opinion), within manageable bounds. The employer’s duty to provide equal benefits and privileges of employment is limited by the plain text of the regulation.
  11. Howard failed to identify any employer-sponsored benefit or program that she lacked access to.
  12. Under controlling regulation, if an adjustment or modification assists the individual throughout his or her daily activities, on and off the job, it will be considered a personal item that the employer is not required (emphasis in opinion), to provide. That is, providing a service dog at work so that an employee with a disability has the same assistance the service dog provides away from work is not a cognizable benefit or privilege of employment.

IV

Thoughts/Takeaways

  1. This was not a case where the argument was that the service animal was needed in order for the plaintiff to perform the essential functions of the job with or without reasonable accommodations as plaintiff waived that argument.
  2. “Privileges and benefits, has a fairly narrow defined meaning.
  3. Under the reasoning of this court, a service animal would never be allowed for an individual with a disability to help them enjoy the privileges and benefits of employment regardless of what those privileges and benefits are because the dog works both at work and away from work. This reasoning to my mind goes too far as a service animal provides the very same functions as hearing aids, glasses, wheelchairs, etc. It is one thing to say that an employer does not have to provide those items for an individual with a disability. It is quite another to say that an employer does not have to allow those items, which is what is going on here. In my view, the EEOC in the guidances cited by the court are talking about the distinction between having to provide an item v. having to allow an item. The two are not at all the same thing as the Eighth Circuit seems to suggest.
  4. When dealing with service animals in the workplace, it is critical, especially after this case, to make sure that essential functions of the job with or without reasonable accommodations arguments are preserved and those arguments made. It is also clear that a service animal under this decision would never have to be allowed by an employer for that animal to help an employee enjoy the privileges and benefits of employment regardless of how privileges and benefits might be defined. That is a bridge too far.
  5. The circuit court split occurs with respect to the case we discussed last week, here, in an unpublished decision from the Sixth Circuit. There, the Sixth Circuit talks about how reasonable accommodations need to focus on obstacles to employment, which is most certainly is not the focus of the Eighth Circuit. The 11th Circuit, as we have discussed here, also focuses on the disability and not on the essential functions of the job with respect to what is needing to be accommodated. The Second Circuit in a decision from quite a long time ago, tracks the 11th Circuit, as we discussed here.
  6. So, as a result of other circuits focusing on either obstacles or on accommodating the disability and not the job’s essential function, there is quite arguably a circuit court split that tees up for Supreme Court review. As noted above, this particular opinion as phrased goes way too far (dogs which are incredibly popular in the U.S. are also involved). So, I would not assume that the Supreme Court would decide against Howard should it decide to hear the case.
  7. In an appellate brief, be sure to discuss what should be addressed by the lower court should the appellate court remanded the case for further proceedings.
  8. It will be interesting to see if the EEOC gets involved as an amicus going forward as their guidances and regulations could very well have been misinterpreted by the Eighth Circuit.
  9. The court only implicitly addresses how to analyze reasonable accommodations. They strongly suggest there must be a direct link between the accommodation and the activity and that is not what the Sixth Circuit did in Yanick, which we discussed last week. It isn’t the approach of the 11th Circuit or the Second Circuit either.
  10. An argument can be made that the Eighth Circuit has misinterpreted the EEOC’s interpretive guidance by confusing providing v. allowing. So, that tees up a Kisor, discussed here, issue for the Supreme Court as to how much a court should defer to the EEOC guidance, assuming the Eighth Circuit’s view is correct in the first place, which is by no means a foregone conclusion. Perhaps, the EEOC will now consider adopting as a final regulation rules similar to the DOJ service animal rules for Title II and Title III.
  11. You often see courts using the term, “otherwise qualified” in ADA cases. It is actually a Rehabilitation Act term and not an ADA term at all. However, the two terms have identical meanings. Personally, I prefer “otherwise qualified,” to “qualified,” as the former clearly represents a term of art.
  12. Why the employer did not talk to Howard’s physician is not clear. If the employer had, maybe the employer would have been able to rule out all other alternatives besides the service animal. The employer may have also found out that the service animal was the only possibility. An interactive process exploring all possibilities would have saved a lot of litigation costs.

Today’s blog entry explores an unpublished decision from the Sixth Circuit on April 29, 2024, that discusses some important points regarding reasonable accommodations. The case is Yanick v. The Kroger Company of Michigan, here. As usual, the blog entry is divided into categories, and they are: facts; what is sufficient notice from an employee that a reasonable accommodation is needed; when is an accommodation reasonable; EEOC charges are important; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

For 15 years, plaintiff met the expectations of working in the bakery. In 2018, she was diagnosed with breast cancer and a new person took over as the store manager. Plaintiff said the new store manager badgered, criticized, and harassed her. The store manager would ask the plaintiff numerous questions and was usually unfriendly and critical.

 

When issues in the bakery department persisted, the store manager called the plaintiff into her office and they had three meetings over nine days. At the final meeting, the store manager said plaintiff was expected to carry out her duties or she would face discipline up to and including termination. She was also informed that rather than continue as bakery manager, the plaintiff could step down. Plaintiff believed that this meant she should step down from her position.

 

Shortly after the final meeting, plaintiff clocked out and began medical leave. In plaintiff’s medical forms, her Dr. specified she needed leave in order to avoid undue mental distress and undergo surgery. Within a week of starting that leave, plaintiff complained about her experiences with her store manager using Kroger’s hotline. She alleged that the store manager knew she had breast cancer but harassed her anyway. She emphasized on the hotline that the store manager threatened discipline and after being informed by the plaintiff that she was going on medical leave, told the plaintiff that it might be a good time for the plaintiff to think about stepping down.

 

Plaintiff’s doctor initially estimated that plaintiff would return to work on March 28, 2018. However, by March, plaintiff still had a 10 pounds lifting restriction in place. So, Kroger extended her leave for a few more months.

 

Plaintiff returned to work on June 11, 2018, without restrictions. Despite four months having passed, things between the plaintiff and her store manager continued where they left off. In the store manager’s view, plaintiff still wasn’t meeting expectations. Plaintiff said she was struggling and needed some time to get back to normal. She also told the store manager that she had worked 53 hours her first week back, which was very hard on her physically. She also mentioned that she was trying to get the hang of Kroger’s new program. In response, store manager asked who approved her overtime. She also noted that business is business. Finally, she said that if things continued, plaintiff could be disciplined or fired. Alternatively, plaintiff could step down. Plaintiff at first agreed to step down but then changed her mind and left the meeting.

 

Over the next week, other employee got involved. One of plaintiff’s supervisors advised her that the store manager could not force her to step down. That supervisor and a coordinator from HR also agreed to give plaintiff more training. Subsequently, the HR coordinator talked with the plaintiff and the store manager. Finally, plaintiff heard from a few bakery department employees who said that the department needed both more help and to be more organized.

 

On June 26, 2018, plaintiff stepped down. She first transferred to a different department but ultimately, ended up working as a bakery clerk at a different Kroger with a lower salary and less authority. Plaintiff then turned to legal action by filing a claim with the EEOC and receiving a right to sue letter. When the District Court granted summary judgment for Kroger, she appealed.

 

 

 

II

What Is Sufficient Notice from an Employee That a Reasonable Accommodation is Needed

 

  1. In a failure to accommodate claim, a plaintiff has to provide direct evidence of discrimination. That is, plaintiff has to show that she requested an accommodation and that her request was objectively reasonable.
  2. There is no bright line rule for determining whether an employee requested an accommodation. Instead, one has to generally assess whether the employee communicated the need for an adjustment at work because of a disability and context matters.
  3. Plaintiff’s following statements could arguably be considered a reasonable accommodation request for reduced work schedule: 1) that she needed some time to get back to normal; 2) that she was struggling; 3) that the job was hard for her physically; and 4) that she had worked 53 hours the week before and wanted the chance to get used to all the work again In fact, the lower court essentially said that these statements were a request for a reduced work schedule .
  4. She also tied those statements her disability. In particular, plaintiff had recently undergone breast cancer surgery and was on medical leave for four months, which was information the store manager knew. Also, the meeting with the store manager occurred within one week of plaintiff returning to work. So, plaintiff did not have to say that she was tired because of her recent surgery as Kroger should have made that reasonable inference.
  5. Plaintiff’s comments provided just enough information in context to raise a triable issue, and Kroger has not shown that the evidence is so one-sided that a jury could only rule in its favor on this point.
  6. Kroger did not ask plaintiff to provide more medical documentation, which it could have done if it thought that her lingering issues may not be genuine.
  7. It doesn’t matter that plaintiff had an earlier note saying that she could return to work without restrictions because to hold otherwise, would relieve the employer from providing accommodations whenever an employee returns without restrictions when restrictions later prove necessary.
  8. In a summary judgment motion, the record must be construed in the light most favorable to the nonmoving party and not to the moving party.

 

III

When Is an Accommodation Reasonable

  1. Whether a person makes a reasonable accommodation request is a question of fact.
  2. An employee has to show that the proposed accommodation is reasonable on its face. In other words, the question is whether plaintiff’s accommodation request is reasonable in the general run of cases.
  3. Modified work schedules are a classic example of a reasonable accommodation and are explicitly covered in the ADA at 42 U.S.C. §12111(9)(B).
  4. Accommodation is reasonable only if it addresses a key obstacle preventing the employee from performing a necessary function of the job.
  5. Plaintiff’s proposed accommodation would help her effectively perform her job. Her key obstacle was fatigue. Plaintiff was tired and exhausted. She told the store manager that the job was hard for her physically after having worked a 53 hour week the week before. As a bakery manager, she had to lift items weighing more than 10 pounds. A way to combat fatigue would be less work. A reduced work schedule would provide the plaintiff with more time to recuperate and allow her to get acclimated to her job’s physical demands.
  6. Whether Kroger’s argument that plaintiff resigned before engaging in an interactive process will carry the day is a fact intensive issue that needs to be addressed by the lower court on remand.
  7. The constructive discharge claim fails because plaintiff cannot show objective intolerability of the work environment and no reasonable jury could find otherwise. So, without an adverse employment action, plaintiff’s disability discrimination and retaliation claims fail.

 

 

 

IV

EEOC Charges Are Important

 

  1. While plaintiff filed her EEOC charge pro se, she did not check the box for retaliation in the charge. Her charge also lacked facts that would put the EEOC or Kroger on notice that she intended to pursue a retaliation claim. While her precharge inquiry form spoke of retaliation, that form is not a charge under title VII.

 

V

Thoughts/Takeaways

 

  1. I haven’t seen before a court saying that failure to accommodate claims require direct evidence in the way that term is used when dealing with the McDonnell Douglas paradigm in summary judgment matters. Kind of strange to refer to it that way considering, as even this court noted, that magic words are not required. Not only are magic words not required, context can make for a reasonable accommodation request. So, I would be very careful about this “direct evidence,” language in the opinion.
  2. To this court, the standard for requesting a reasonable accommodation and requiring the start of the interactive process, turns on a general assessment of whether the employee communicated the need for an adjustment at work because of a disability given the particular context. That is certainly one way to look at it. I think looking at it that way is unnecessarily complicated. I prefer the formulation that an employee only has to provide the employer with enough information so that the employer can be fairly said to know about the disability and the desire for an accommodation. EEOC v. Crane Automotive Holdings LLC (E.D. AR, 4/11/19). I don’t think that the two formulations are all that different from each other because context obviously matters in both formulations, rather the former is just unnecessarily complicated.
  3. An employer always has the right to insist on reasonable documentation to support a reasonable accommodation request. However, that request needs to be narrowly focused and not a fishing expedition or a means of discouraging a person with a disability from making such a request.
  4. The record in a summary judgment motion must be construed in the light most favorable to the nonmoving party.
  5. Whether a person makes a reasonable accommodation request is a question of fact.
  6. I see the phrase “general run of cases,” all the time. I have no idea what it means.
  7. There is an implication in this decision that a failure to accommodate claim does not require an adverse action. As we discussed in this blog entry, it is certainly headed that way.
  8. You don’t have to hire a lawyer to file an EEOC charge. However, as this case makes clear, it is very helpful if you do as there are traps a person could otherwise fall into.
  9. 100% return to work policies are not advisable. See this blog entry.
  10. I can’t tell you how often I have seen new supervisors cause problems. Companies need to have training (training is a huge part of my practice), programs in place for supervisors and those programs should not be just a one time thing.
  11. The court’s reasoning about when an accommodation will be deemed reasonable is actually very plaintiff friendly. We have previously talked about whether what is being accommodated is the disability or whether it is the essential functions of the job (see here for example). This court’s formulation for the test of when an accommodation is reasonable essentially splits the difference. In particular, an accommodation is reasonable only if it addresses a key obstacle preventing the employee from performing a necessary function of the job. The “key obstacle,” language is very significant because it doesn’t necessarily relate to an essential function of the job but rather to an obstacle to performing a necessary function of the job. The two are not at all the same thing. For example, this formulation would make a big difference in cases where the employer argues that a particular accommodation does not relate to the job’s essential functions. With this court’s formulation, that isn’t the issue. The issue would be whether the accommodation removes an obstacle to performing necessary functions (i.e. essential functions of the job). An accommodation relating to an essential function of the job and an accommodation relating to removing an obstacle to performing essential functions of the job are not at all the same thing. For example, a service animal may have nothing to do with the essential functions of a particular person’s job but without the service animal, the person could not do the job certainly not to their abilities. That is, a service animal removes all kinds of obstacles to doing the necessary functions of the job. The service animal is what comes to mind immediately, but I undoubtedly could come up with other examples as well with respect to the distinction between relating to an essential function of the job and removing an obstacle to performing an essential function of the job. Yanick’s formulation of when an accommodation is reasonable means that service animals would always be a reasonable accommodation. It would also make for interesting litigation with respect to an emotional support animal. Remember, the EEOC, unlike DOJ, has nothing with respect to service animals or emotional support animals in its final regulations.

I hope everyone had a great Memorial Day weekend. Today’s blog entry deals with the question of whether the Civil Service Reform Act, Title VII, and the ADA can all coexist at the same time. The case of the day is Lucas v. American Federation of Government Employees decided on March 29, 2023,  lower court opinion here, currently pending before the US Court of Appeals for the D.C. Circuit. As usual, the blog entry is divided into categories and they are: trial court opinion; EEOC amicus brief at the appellate court level detailing why the lower court got it wrong that the CSRA is the exclusive remedy for the plaintiff; EEOC’s view that unions can be liable for a hostile work environment; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Trial Court Opinion

 

The facts of the case are rather straightforward. The plaintiff complained of harassment by her bargaining unit on the basis of sex and disability. She also alleged a hostile work environment. The trial court judge, Amy Berman Jackson, said that the ADA and Title VII claims had to be dismissed because the Civil Service Reform Act mandated that this was the exclusive province of the Federal Labor Relations Authority. Plaintiff appealed and the EEOC weighed in with an amicus brief detailing why in their opinion, the lower court got the decision wrong.

 

II

EEOC’s Amicus Brief at the Appellate Court Level Detailing Why the Lower Court Got It Wrong that CSRA Is the Exclusive Remedy for the Plaintiff

 

  1. Discrimination claims under Title VII and the ADA are not at all the same thing as unfair representation claims even when both sets of claims are premised on the same conduct.
  2. Discrimination and unfair representation claims are distinct and independent causes of action, each with its own unique requirements for establishing a violation.
  3. Considering the distinct requirements, a union’s conduct can constitute discrimination under Title VII or the ADA, but not unfair representation under the CSRA (Civil Service Reform Act).
  4. Title VII and the ADA have a broader collection of remedies than what exists under the CSRA, including compensatory and punitive damages, so a federal court may often provide the only form in which a plaintiff can obtain adequate relief or discrimination by a federal-employee union.
  5. Both the ADA and Title VII apply to labor unions, including federal-employee unions.
  6. Title VII makes it unlawful for a union to exclude or to expel from membership, or otherwise to discriminate against, any individual because of the individual’s race, color, religion, sex, or national origin. It also makes it unlawful for a union to limit, segregate, or classify its membership or applicant for membership, or to classify or fail or refuse to refer for employment any individual, in any way which would deprive or tend to deprive an individual of employment opportunities, or would limit such employment opportunities or otherwise adversely affect that person’s status as an employee or as an applicant for employment, because of such individual’s race, color, religion, sex, or national origin. It also prohibits unions from causing or attempting to cause an employer to discriminate against an individual in violation of Title VII.
  7. The ADA makes similar conduct the unlawful discussed in ¶ 6 immediately above, when based on a disability. The ADA also prohibits additional forms of discrimination, including not making reasonable accommodation to the known physical or mental limitations of an otherwise qualified individual with a disability.
  8. The protections afforded by Title VII and the ADA are not limited to union members or members of a particular bargaining unit. After all, Title VII encompasses discrimination against any individual, while the ADA encompasses discrimination again a qualified individual with a disability. Neither statute is limited to discriminatory conduct that breaches a collective bargaining agreement and both encompass harassment claims against unions.
  9. A union’s duty of fair representation extends only to employees in the unit it represents.
  10. The CSRA encompasses a narrow category of discrimination that prohibits discrimination based on sex or “handicapping condition,” with regard to the terms or conditions of membership in the labor organization.
  11. Citing to a variety of cases, including a Ninth Circuit case, a union’s conduct may constitute discrimination even when it does not constitute unfair representation. That is, a plaintiff can still have a Title VII or ADA claim even if she can prove a violation of the labor laws.
  12. In a footnote, the EEOC cites to a D.C. Circuit case and notes that a union’s conduct can constitute both discrimination and unfair representation.
  13. The standard for proving unfair representation is more rigorous than Title VII and the ADA because courts generally accord deference to a union in the labor context.
  14. On the other hand, there is no reason to grant unions the same deference when it comes to determining if they discriminated against their members on the basis of a protected classification. Instead, “plaintiff-friendly pleading standards,” under Title VII and the ADA makes clear that the free hand unions have in labor matters does not extend to discrimination suits. Therefore, proving discrimination may be less difficult than proving unfair representation.
  15. The Supreme Court has acknowledged that a breach of the union’s duty of fair representation may prove difficult to establish, thereby making it noteworthy that Congress thought it necessary to afford the protections of Title VII against unions as well as employers.
  16. The CSRA, Title VII, and the ADA all have different procedural requirements, including different statute of limitations.
  17. Title VII and the ADA have a broader collection of remedies than under the CSRA. For example, compensatory and punitive damages are available under title VII and the ADA, while under the CSRA, they are extremely difficult (compensatory), or impossible (punitive), to obtain under the CSRA.
  18. The CSRA does not allow for jury trials while Title VII and the ADA do.
  19. Limiting a plaintiff to CSRA remedies when the claims also support Title VII and/or the ADA undermines the central purpose of antidiscrimination statutes, which is making persons whole for injuries suffered on account of unlawful employment discrimination.
  20. No indication that Congress intended for the CSRA to foreclose plaintiff from seeking and obtaining remedies available under Title VII or the ADA. In fact, the Supreme Court has noted that legislative enactments in the area have longer evinced a general intent to accord parallel or overlapping remedies against discrimination.
  21. EEOC guidance treats the CSRA as a parallel remedy when it specifically notes that when a federal employee files a discrimination charge with the EEOC against a federal union, that employee can also file an unfair labor practice charge as well.
  22. Courts have long treated discrimination and unfair representation claims as separate and distinct causes of action. As a result, the CSRA does not extend to discrimination claims under Title VII or the ADA, and the courts have jurisdiction over those claims that could also support an unfair representation claim.
  23. Several courts, including the D.C. Circuit, have recognized concurrent jurisdiction in the EEOC and the National Labor Relations Board and this should be no different.

 

III

EEOC’s View that Union Can be Liable for a Hostile Work Environment

 

  1. Both Title VII and the ADA make it unlawful for unions to discriminate against individuals based on sex or disability.
  2. The phrase “discriminate against,” in ordinary usage encompasses harassment as harassment includes distinctions or differences in treatment among protected individuals. Every Court of Appeals has said as much. Same goes for retaliation when a hostile work environment is a part of it.
  3. The statutory text of the CSRA is actually broader than Title VII and the ADA when it comes to discrimination that is prohibited, because it does not include the restriction that the conduct must be related to terms, condition, or privileges of employment.

 

IV

Thoughts/Takeaways

 

  1. In case you were wondering where the title for this blog entry comes from, we have seen this argument before. In Fry, the Supreme Court said that an individual needing a service animal did not have to exhaust the administrative remedies of IDEA. We also discussed how the Supreme Court in Perez said that a person seeking compensatory damages also does not have to exhaust administrative remedies associated with IDEA. Both of those decisions went off on the argument that the same set of facts could give rise to claims that address very different purposes. I must confess I was a bit surprised that the EEOC did not reference either of these Supreme Court decisions in their amicus brief.
  2. It seems to me that the EEOC has a very strong argument in light of the analogous Supreme Court opinions mentioned in IV1 of this blog entry. Also, considering those Supreme Court decisions, and the current configuration of this court, it would not surprise me in the least if the EEOC ultimately prevails on its argument should this case get to the Supreme Court.
  3. One wonders if the Supreme Court or even the appellate court would adopt a similar approach to Fry when deciding whether to allow claims to go ahead under Title VII and the ADA when a claim could also be unfair representation. It is perfectly logical to me how the same reasoning could be easily applied to this context. In other words, seeking out what is the gravamen of the complaint, asking hypothetical questions, etc.
  4. It also makes sense to me considering the configuration of the current Supreme Court, that the Supreme Court would find unions could be liable for creating a hostile work environment.
  5. Definitely looking forward to seeing how the D.C. Court of Appeals ultimately decides this case. Fascinating to me how Fry and Perez’s reasoning can be extended to other areas of the law.
  6. While I get the point EEOC was making about pleading standards under the various laws, I would not call Title VII and particularly the ADA, plaintiff friendly pleading standards.