As everyone knows, I don’t usually blog twice a week. You wouldn’t think I would do that the Friday before the July 4 weekend. However, two Supreme Court decisions came down yesterday. The most notable one that came down yesterday was the decision involving Harvard and the University of North Carolina with respect to race-based admissions practices. As everyone knows, the majority opinion threw out those practices quite emphatically. It was very interesting reading the concurring opinion of Justice Thomas and comparing that to the dissenting opinions of Justice Sotomayor and Justice Jackson. It is Justice Gorsuch’s opinion that may have thrown a grenade into affirmative action generally when he reasons that affirmative action for those receiving federal funds is prohibited by title VI of the Civil Rights Act. Makes me wonder whether affirmative action for federal contractors isn’t dead. It will be interesting to see what the labor and employment lawyers on the management side think of the broader impact of this decision.

 

Two other things happened this week. First, the Pregnant Workers Fairness Act (PWFA), went into effect. The EEOC will be issuing regulations before too long one hopes. They did issue a brief question and answer document, here. Second, yesterday the Supreme Court came down with the decision in Groff v. DeJoy, here, where they unanimously threw out the de minimis standard for undue hardship established in Hardison. It is the PWFA and Groff that is the subject of today’s blog. As usual the blog entry is divided into categories and they are: Pregnant Workers Fairness Act; Groff v. Dejoy, which is divided into the categories of: Facts; Hardison in Historical Context; What Did Hardison Actually Say; What Is the Standard Going Forward and Fleshing out That Standard; Justice SotoMayor Concurring Opinion in Which Justice Jackson Joined; and Thoughts/Takeaways for the entire blog entry. The reader is free to concentrate on any or all of the categories throughout this blog entry.

 

I

Pregnant Workers Fairness Act (PWFA)

 

  1. PWFA went into effect June 27.
  2. PWFA applies to employers of 15 or more employees.
  3. The EEOC is now taking charges for violations of that act. Any charges for violations of that act would have to stem from an occurrence on June 27 or later. The PWFA does require exhaustion of administrative remedies with the EEOC prior to filing suit.
  4. PWFA protects employees and applicants with known limitations related to pregnancy, childbirth, or related medical conditions. It requires reasonable accommodations for person with a limitation related to pregnancy, childbirth, or related medical conditions.
  5. A reasonable accommodation is a change to the work environment or the way things are usually done at work.
  6. Requires an interactive process.
  7. A covered employer cannot require an employee to take leave if another reasonable accommodation can be provided that would let the employee keep working.
  8. Has a retaliation and an interference provision.
  9. EEOC will be issuing regulations before too long it is hoped.

 

II

Groff v. DeJoy

 

  1. Facts

 

Gerald Groff is an Evangelical Christian who believes for religious reasons that Sunday should be devoted to worship and rest, not “secular labor” and the “transport[ation]” of 2 GROFF v. DEJOY Opinion of the Court worldly “goods.” App. 294. In 2012, Groff began his employment with the United States Postal Service (USPS), which has more than 600,000 employees. He became a Rural Carrier Associate, a job that required him to assist regular carriers in the delivery of mail. When he took the position, it generally did not involve Sunday work. But within a few years, that changed. In 2013, USPS entered into an agreement with Amazon to begin facilitating Sunday deliveries, and in 2016, USPS signed a memorandum of understanding with the relevant union (the National Rural Letter Carriers’ Association) that set out how Sunday and holiday parcel delivery would be handled. During a 2- month peak season, each post office would use its own staff to deliver packages. At all other times, Sunday and holiday deliveries would be carried out by employees (including Rural Carrier Associates like Groff) working from a “regional hub.” For Quarryville, Pennsylvania, where Groff was originally stationed, the regional hub was the Lancaster Annex.

 

The memorandum specifies the order in which USPS employees are to be called on for Sunday work outside the peak season. First in line are each hub’s “Assistant Rural Carriers”— part-time employees who are assigned to the hub and cover only Sundays and holidays. Second are any volunteers from the geographic area, who are assigned on a rotating basis. And third are all other carriers, who are compelled to do the work on a rotating basis. Groff fell into this third category, and after the memorandum of understanding was adopted, he was told that he would be required to work on Sunday. He then sought and received a transfer to Holtwood, a small rural USPS station that had only seven employees and that, at the time, did not make Sunday deliveries. But in March 2017, Amazon deliveries began there as well.

 

With Groff unwilling to work on Sundays, USPS made other arrangements. During the peak season, Sunday deliveries that would have otherwise been performed by Groff were carried out by the rest of the Holtwood staff, including the postmaster, whose job ordinarily does not involve delivering mail. During other months, Groff ’s Sunday assignments were redistributed to other carriers assigned to the regional hub.1 Throughout this time, Groff continued to receive “progressive discipline” for failing to work on Sundays. Finally, in January 2019, he resigned. A few months later, Groff sued under Title VII, asserting that USPS could have accommodated his Sunday Sabbath practice “without undue hardship on the conduct of [USPS’s] business.”

 

In two different footnotes, the Supreme Court noted that other employees complained about the plaintiff’s absences, including at least one filed a grievance. Also, plaintiff’s resignation was done, according to the plaintiff (the District Court found a genuine issue of material fact on this question), in light of his expected termination.

 

B

Hardison in Historical Context

 

  1. In 1968, the EEOC issued final regulations obligating employers to make reasonable accommodation to the religious needs of employees whenever that would not work an undue hardship on the conduct of the employer’s business.
  2. In 1972, Congress amended title VII to provide that the term religion includes all aspects of religious observance and practice, as well as beliefs, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.
  3. Hardison arose during the time between the issuance of the EEOC’s undue hardship regulation and the 1972 amendments to title VII.
  4. Hardison is at its core a collective bargaining case and must be read with that in mind. It is not clear that any of the possible accommodations would have actually solved Hardison’s problem without infringing upon seniority rights.

 

C

What Did Hardison Actually Say

 

  1. In the briefs and at oral argument, little space was devoted to the question of determining when increase costs amount to an undue hardship under the statute. Nevertheless, a single sentence in the opinion for the Supreme Court, if taken literally, suggested that even a pittance might be too much for an employer to be forced to endure. In particular, the line said, “to require TWA to bear more than a de minimis cost in order to give Hardison Saturdays off is an undue hardship.”
  2. De minimis took on a world of its own with courts saying it was the standard for religious accommodations.
  3. Hardison referred repeatedly to substantial burdens and that formulation better explains its decision.

 

D

What Is the Standard Going Forward and Fleshing out That Standard

 

  1. Even the Solicitor General disavows its prior position that Hardison should be overruled, but only on the understanding that Hardison does not compel courts to read the more than de minimis standard literally or in a manner undermining Hardison’s references to substantial costs.
  2. More than a de minimis cost does not suffice to establish undue hardship under title VII as Hardison cannot be reduced to that one phrase.
  3. Undue hardship is shown when a burden is substantial in the overall context of an employer’s business. This formulation is a fact-specific inquiry comporting with both Hardison and the meaning of undue hardship in ordinary speech.
  4. Turning to the dictionary, a hardship is at a minimum something hard to bear.
  5. Adding the modifier “undue,” means that the requisite burden must rise to an excessive or unjustifiable level.
  6. Even the government agrees that undue hardship must mean something greater than hardship.
  7. Nothing in the history of title VII suggests that undue hardship should be read to mean anything less than its meaning in ordinary use.
  8. No factor discussed by the parties (the ordinary meaning of undue hardship, the EEOC guidelines that Hardison concluded the 1972 amendment ratified, the use of that term by the EEOC prior to those amendments, and the common use of that term in other statutes), supports reducing Hardison to nothing more than a de minimis costs line.
  9. Undue hardship for purposes of religious accommodation occurs where an employer shows that the burden of granting an accommodation results in a substantial increase costs in relation to the conduct of its particular business. In figuring that out, courts must apply this formulation in a manner taking into account all relevant factors in the case, including/such as: the particular accommodations at issue; and the practical impact in light of the nature, size and operating costs of an employer.
  10. As for the way forward, plaintiff suggested that the Supreme Court draw upon decades of ADA case law. On the other hand, the government suggested that the Supreme Court say that the EEOC’s construction of Hardison has been basically correct. Both of those suggestions go too far.
  11. No reservation in saying that a good deal of the EEOC’s guidance in the area of religious accommodation is sensible and will in all likelihood be unaffected by the decision. So, this decision may prompt little if any change in the agency’s guidance explaining why no undue hardship is imposed by temporary costs, voluntary shift swapping, occasional shift swapping, or administrative costs. That said, it is imprudent to ratify the body of the EEOC’s interpretation when there has not been the benefit of the clarification of undue hardship from this opinion.
  12. Undue hardship in title VII means exactly what it says, and it should be up to the courts to resolve whether hardship would be substantial in the context of an employer’s business in the common sense manner used in implying the test formulated here.
  13. Title VII requires an assessment of a possible accommodation’s effect on the conduct of the employer’s business.
  14. It is not a question of whether all impacts and coworkers are relevant, rather it is the coworker impacts that go on to affect the conduct of the business. A court has to look at the effect on the conduct of the business.
  15. A coworker’s dislike of religious practice and expression in the workplace or the mere fact of an accommodation is not something that can be factored into the undue hardship inquiry. That is, an employer failing to provide an accommodation has a defense only if the hardship is “undue,” and a hardship attributable to employee animosity to a particular religion, to religion in general, or to the very notion of accommodating religious practice cannot be considered, “undue.” To hold otherwise, would set title VII at war with itself.
  16. Title VII requires that an employer reasonably accommodate an employee’s practice of religion, and not merely that it assessed the reasonableness of a particular possible accommodation or accommodations.
  17. It will be up to the lower courts to come up with the context specific applications of the standard set forth in this opinion.

 

 

III

Concurring Opinion of JusticeSotoMayor in Which Justice Jackson Joined

 

  1. Justice SotoMayor and Justice Jackson wrote a concurrence saying that the approach taken by the majority opinion of clarifying Hardison rather than overruling it was absolutely correct.
  2. Title VII requires undue hardship on the conduct of the employer’s business. Since conduct of the business plainly include the management and performance of the business’s employees, undue hardship on the conduct of a business may include undue hardship on the business’s employees.
  3. As the majority opinion mentioned, animus toward a protected group is not a cognizable hardship under any antidiscrimination statute.
  4. Some hardships, such as the labor costs of court nearing voluntary shift wipes, are not undue because they are too insubstantial.

 

 

IV

Thoughts/Takeaways for the Entire Blog Entry

 

  1. It is going to be very interesting to see whether the EEOC final implementing regulation for the PWFA with respect to undue hardship, track the ADA final implementing regulations in some way or whether they will track the Supreme Court decision in Groff v. DeJoy.
  2. I see it all the time on the ADA side where leave is forced on an employee instead of exploring a reasonable accommodation. The PWFA is yet another reason why this is not a good idea on either the ADA or the PWFA side.
  3. The EEOC final regulations implementing the PWFA are going to be a critical factor in understanding just what undue hardship means. Keep in mind that those regulation will go through the Administrative Procedure Act process. So, it may be some time before a definite answer exists. In the meantime, we might see enforcement guidances and the like.
  4. Employers will definitely have to reconfigure how they have been dealing with religious accommodations as de minimis is no longer the standard.
  5. In many ways, the Supreme Court opinion closely approaches but does not necessarily get there, the ADA concept of fundamental alteration on the operation of the business.
  6. Similarly, the Supreme Court opinion closely approaches but does not necessarily get there, the ADA concept of undue hardship in the financial sense, which looks to the entire resources of the financial entity.
  7. The ADA concept of fundamental alteration while a higher level than undue hardship under title VII, may be an excellent preventive law tool for employers to use with respect to granting religious accommodations.
  8. Undue burden is fact specific. Whenever you see wording like that, it is music to plaintiff attorneys ears and not something that would make defense attorneys very happy.
  9. When the Court suggested all relevant factors include: 1) the particular accommodations at issue; and 2) the practical impact in light of the nature, size, and operating costs of an employer, the Court was not clear whether these are the only two factors to consider or whether these two factors are part of a nonexclusive list. We will have to stay tuned for further developments.

We have been on a bit of a roll discussing standing lately, so I thought why not continue it, albeit with a different law. Today, let’s look at the Fair Housing Act (FHA). The case of the day is Brown v. Suri Hurley, LLC, here, from the Eastern District of California cited on June 20, 2023. My thanks to Prof. Leonard Sandler, Clinical Law Professor at the University of Iowa, for sending along the case to me. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning that plaintiffs have standing to pursue an FHA claim; and court’s reasoning that plaintiffs have standing to pursue California FEHA claims. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

Plaintiff Haygood, applied to lease a unit in an apartment complex owned and operated by the defendant. Plaintiffs alleged that prior to signing the lease agreement that they informed one of the defendant’s employees that another individual, Brown, would live in the apartment along with her service dog. A factual dispute existed as to who Haygood brought along with him to complex when he was checking it out. In November 2021, Haygood entered into an agreement to lease the unit, but the lease did not list Brown as an occupant or reference a service dog. Haygood attested that an employee of the defendant, for reasons unknown to him, insisted that the lease be in his name even though the employee knew that Brown and her dog would live in the unit. Haygood and Brown both attested that Brown and her dog have lived in the unit since the inception of the lease in November 2021. Evidence was submitted that as of November 19, 2021, defendant’s employee was on notice that both Brown and her dog were residing in the unit. The employee attested that she first noticed that Brown and her dog were residing in the unit on May 18, 2022.

 

On June 4, 2022, defendant served Haygood with a three day notice to perform conditions and/or covenants or quit. In response, Haygood explained to the general manager of the apartment complex that Brown was the guest, that she was Haygood’s wife, and that the dog was a service animal. In response, the general manager purportedly told Haygood that the apartment community would not required to accommodate assistance animals so they did not have to accommodate Brown’s assistance animal. Defendant attested that shortly after the general manager spoke with Haygood, the general manager emailed Haygood an application to add his wife to the lease and an application to keep a service animal in the unit. The email requested a copy of Brown’s driver’s license, two recent pay stubs, and the doctor documents, training documents, and pictures that the service animal application asked for.

 

II

Court’s Reasoning That Plaintiffs Have Standing to Pursue an FHA Claim

 

  1. The FHA permits a civil action to be brought by any aggrieved person, which is defined as anyone claiming to have been injured by a discriminatory housing practice or anyone believing that such person will be injured by a discriminatory housing practice about to occur. So, any person harmed by discrimination, whether or not the target of the discrimination, can sue to recover for his or her own injury.
  2. Defendant cites no authority supporting the view that the FHA requires a plaintiff to have formally applied for housing or to have been listed on a lease agreement in order to have standing.
  3. Even if defendant had made such a showing, defendant does not dispute that Haygood would be aggrieved by the eviction of his wife.
  4. Plaintiffs argument that the defendant violated their rights when its representative allegedly stated that the apartment community was not required to accommodate assistance animals, so they did not have to accommodate Brown’s assistance animal is sufficient to confer standing.
  5. The FHA makes it unlawful for owners or their agents to make any statements with respect to the sale or rental of a dwelling indicating any preference, limitation, or discrimination based upon handicap or an intention to make any such preference, limitation or discrimination. This section of the FHA applies to all oral notices or statements by a person engaged in the rental of a dwelling.
  6. That the general manager sent plaintiffs an email indicating that the apartment might accommodate a service animal if plaintiffs were to provide sufficient documentation indicates that the general manager was involved in the decision-making process. Further, that statement was uttered in the days between issuing the plaintiffs an eviction notice and providing them a service animal application, so it cannot reasonably be understood as unrelated in time to the decision-making process.

 

II

 

Court’s Reasoning That Plaintiffs Have Standing to Pursue California State Law Claims

 

  1. The Ninth Circuit has determined that the same standards apply to FHA claims and the California version of that law, Unruh Act also known as the FEHA. So since the standards are the same, the state law claims can proceed.
  2. Plaintiffs allege that the general manager of defendant’s apartment complex told them directly that the apartment does not accommodate service dogs. Even in the absence of further refusals to accommodate, such pronouncements can constitute actionable discrimination under the Unruh Act.

 

III

Thoughts/Takeaways

 

  1. Clearly, the defendant needs lots of training with respect to service animals and emotional support animals when it comes to the FHA. From what I see in my practice, lots of owners of apartment complexes need that kind of training (providing training is a significant part of my practice). Also, this blog entry of ours discussing the latest HUD circular is very much on point and is must reading.
  2. From the few facts we see in this opinion, it is quite possible that the HUD circular was not complied with in numerous ways.
  3. As we discussed here, it is entirely possible that the HUD circular would be given deference by the courts.
  4. The ADA and the FHA both deal with discrimination against persons with disabilities. However, the laws are statutorily very different from each other once you get outside of how a person with a disability is defined (there is even some debate about that point as well).
  5. Standing is easier to achieve under the FHA than it is under the ADA due to the statutory differences.
  6. A person does not have to be on a lease to have standing to pursue an FHA claim.
  7. Service animals and emotional support animals are an entirely different kettle of fish. See this blog entry.
  8. The FHA still uses the term “handicap,” in places. I really wish they would change that as that term has been out of date for quite some time.

Before getting started on the blog for the week, I wanted to let everyone know that the ABA Law Practice Today just published my article entitled AI and Persons with Disabilities: the Good and the Bad. It can be found here.

 

Last week, we discussed Acheson Hotels brief in the Laufer case. Also last week, DOJ weighed in with their view. Their Amicus brief, here, supports neither side. However, it does say that Laufer loses, but the more extreme arguments put forward by the hotel should be rejected. As usual, the blog entry divided into categories and they are: Laufer loses on standing grounds; some of the arguments of Acheson Hotels go too far, and thought/takeaways. Of course, the reader is free to read any or all of the categories.

 

I

Laufer Loses on Standing Grounds

 

  1. In adopting the ADA, Congress recognized that disability discrimination includes both intentional exclusion and the failure to make modification to existing facilities and practices in order to afford equal access to individuals with disabilities.
  2. The Reservation Rule was formulated by DOJ to carry out title III’s provision governing public accommodations.
  3. The reason behind the Rule was that individuals with disabilities who have reserved accessible hotel rooms often discovered upon arrival, that the room they reserved was either not available or not accessible (happens quite frequently to me).
  4. The Reservation Rule requires a hotel to identify and describe accessible features in the hotels and guest rooms offered through its reservation service in enough detail to reasonably permit individuals with disabilities to assess independently whether a given hotel or guest room meets their accessibility needs.
  5. The Supreme Court has long held that an individual suffering in violation of the statutory right to be free from discrimination has standing to sue even if she voluntarily subjects herself to discrimination in order to test the defendant’s compliance with the law.
  6. In Havens Realty, the Supreme Court said that testers had standing because the tester suffered an injury in precisely the form the statute was intended to guard against.
  7. Courts have applied Havens Realty to hold that testers suffering violations of statutory rights to be free from discrimination have standing to sue under a variety of other laws, including title III of the ADA.
  8. Tester suits provide an essential complement to the federal government’s limited enforcement resources-as Congress has specifically recognized by funding private tester enforcement of the Fair Housing Act (FHA).
  9. The Reservation Rule unlike the provision in Havens Realty, does not provide a freestanding right to information. Therefore, an individual who merely views a hotel’s online reservation service without intending to use the service to make or consider making a reservation does not have standing because she has not suffered any injury within the meaning of title III and the Reservation Rule.
  10. Concrete injuries are not limited to traditional tangible harms such as physical harms and monetary harms. That is, various intangible harms can also be concrete.
  11. The Supreme Court has held that Congress can elevate to the status of legally cognizable injury concrete, de facto injuries that were previously inadequate in the law.
  12. In TransUnion, the Supreme Court identified discriminatory treatment as the classic example of the harm that Congress can elevate into a cognizable injury, which was the case in Havens Realty.
  13. Havens Realty granted standing even where a person subjected themselves to the violation in order to test the defendant’s compliance with the law.
  14. A suit based upon the violation of a statutory right to be free from discrimination constitutes one circumstance in which a plaintiff need not alleged any additional harm beyond the one Congress has identified.
  15. Since Havens Realty, federal courts have consistently held that testers have article III standing to sue under various provisions of the FHA. Similarly, courts have recognized the approval of tester standing to title II of the ADA and to title III of the ADA.
  16. With respect to title III of the ADA, courts have uniformly recognized that a plaintiff encountering an architectural barrier at a place of public accommodation has suffered a concrete injury even if she visited only to test for compliance with title III.
  17. The right to be free from discrimination does not depend upon the motive behind a plaintiff’s attempt to enjoy the facilities of a particular place of public accommodation. Therefore, anyone suffering an invasion of the legal interest protected by title III has standing, regardless of his or her motivation in encountering that invasion.
  18. In the title III context, a plaintiff’s mere awareness of an ADA violation at a place of public accommodation that she had neither visited nor intend to visit does not suffice for standing. Similarly, a plaintiff does not have standing to seek an injunction merely because he or she previously encountered a barrier to accessibility. Instead, the plaintiff must establish a sufficient likelihood that he or she will be affected by the allegedly unlawful conduct in the future.
  19. A plaintiff can establish standing by showing that she is currently deterred from patronizing a place of public accommodation.
  20. Private litigation is essential to effective enforcement of the ADA because it would be impossible to secure broad compliance with antidiscrimination laws absent suits by individuals experiencing discrimination. Testers are a key component of vast system of private enforcement.
  21. Testers are critical to the effective enforcement of the FHA. Most housing discrimination is covert, and testers play an essential role in uncovering and remedying racial steering and other unlawful practices.
  22. Testers are critical for enforcement of title III. The unavailability of damages reduces or removes the incentive for most persons with disabilities injured by inaccessible places of public accommodation to bring suit under the ADA. Therefore, testers play an important role in ensuring that the statute yields its promise of equal access.
  23. Title III and the Reservation Rule do not create any freestanding informational right. Instead, they give individuals with disabilities the right of equal access to a hotel’s reservation services. Accordingly, Laufer lacked standing because she has not suffered an injury in the form the statute was intended to guard against.
  24. The Reservation Rule’s requirements focus on the reservation process and requires a hotel to hold accessible rooms for individuals with disabilities, to allow those rooms to be reserved in advance, and to ensure that, once reserved, those rooms will actually be available upon check-in.
  25. While the Reservation Rule requires a bunch of things, it does not confer an informational right upon every individual with a disability who merely visits the hotel’s website without using or attempting to use the reservation service.
  26. The Rule interprets the statutory requirement that public accommodations make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford their services to individuals with disabilities. The particular service the Rule addresses is the ability to review and reserve available rooms through websites or other means. A plaintiff with a disability prevented from using that service because of a lack of accessibility information suffers a violation of the right secured by the statute and has standing to sue.
  27. Laufer has no genuine plan to make a reservation and also disclaimed any intent to travel to Maine. Further, she has not alleged that she used, attempted to use, or plan to use the hotel’s reservation service. Instead, she only alleged that she viewed the website and the third-party booking sites to discover that they violated the Reservation Rule and felt frustration and humiliation as a result. This sort of allegation is not sufficient to satisfy article III.
  28. Laufer was not denied equal access to the service because she was not attempting to use it at all.
  29. While two individuals driving by a restaurant and seeing that the wheelchair accessibility is lousy would have the same experience, it is only the individual prevented from visiting the restaurant that would have article III standing to sue because it is only that individual that suffered the denial of rights secured by title III.
  30. Laufer lacked standing to assert any injury to the rights created by title III and the Reservation rule because none of the rights identified in her suit actually belong to her.

 

II

Some of the Arguments by Acheson Hotels Go too Far

 

  1. The argument that a regulation is involved rather than a statute goes too far because the Rule is an interpretation of title III’s requirement that hotels make reasonable modifications to afford individuals with disabilities equal access to their services. So, the Reservation Rule does not go beyond what title III authorizes.
  2. Title III of the ADA applies to services, including those offered on the web.
  3. The Reservation Rule ensures that a hotel’s reservation services comply with the requirements of title III.
  4. Title III of the ADA provides that failure to make reasonable modifications in order to afford equal access to individuals with disabilities is discrimination. 42 U.S.C. §12182(b)(2)(A)(ii).
  5. For an injury to be particularized, it must affect the plaintiff in a personal and individual way even if the person experiences that violation over the Internet.
  6. TransUnion did not overrule Havens Realty or any other precedent and it did not address tester standing at all.
  7. In TransUnion, the Supreme Court observed that Congress may validly recognize otherwise insufficient harms as being sufficient for standing and it particularly referred to the example of discriminatory treatment. Therefore, no further showing is required to establish standing.
  8. The harms accompanying discrimination in public accommodations are sufficiently analogous to injury traditionally forming the basis for such suits and American courts.
  9. Title III of the ADA provides a cause of action only to individuals subject to real-world harm of discrimination and not to the public in general.
  10. TransUnion did not overrule the Sunshine law cases.
  11. Discriminatory action results in downstream consequences long recognized by Congress and the courts.
  12. That the injury is self-inflicted does not defeat article III standing. Havens Realty held as much.
  13. The case is now moot because the hotel’s website has been updated to supply the information Laufer alleges the Reservation Rule requires. That is, the website has been updated to explain that the hotel was not equipped at this time to provide ADA compliant lodging. Laufer has not disputed that this information is sufficient to allow her to assess independently whether the hotel meets or accessibility needs. Therefore, her claim is moot.
  14. While the mootness question is more difficult with respect to third-party services that have not been similarly updated, the Supreme Court could very well conclude that any remaining controversy is simply too insignificant to justify resolving the standing question on which it granted certiorari.
  15. The hotel website has been updated by new owners who state they are taking ADA compliance seriously and the website contains no indication that accessibility information will be removed in the future. Courts have held that a defendant’s changes to its website may moot a Reservation Rule claim in analogous circumstances.
  16. The Reservation Rule is such that it is very unclear whether the hotel providing accessibility information to third-party services was likely to address any future injury.
  17. Regardless of mootness, circumstances have changed so as to greatly diminish the practical significance of the dispute between the parties. So, the Supreme Court could simply say that events have so overtaken things that the anticipated benefits of a remedial decree no longer justifies the trouble of deciding the case on the merits.

 

III

Thoughts/Takeaways

 

  1. As mentioned last week, there are important distinctions between the FHA and the ADA in terms of the injuries the statute specifically refers to. In the FHA, emotional injuries are clearly implied in the statute. However, with title III of the ADA that is simply not the case with respect to the remedies as only injunctive relief and attorney fees are available to private litigants.
  2. If a statute does not encompass anything for emotional injuries, how is suffering frustration and humiliation something that gives a person standing?
  3. Saying that disability discrimination includes both intentional exclusion and the failure to make modifications is a huge indicator that DOJ may argue in the future that failure to accommodate (if it is prosecuting a title I claim against a nonfederal governmental entity), or the failure to reasonably modify a nonfederal governmental entity’s programs, benefits, activities, and services (title II), do not require an adverse action beyond the failure to accommodate/modify.
  4. To my mind, a real argument exists whether Laufer has subjected herself to an injury in precisely the form the statute was intended to guard against.
  5. Open question to my mind as to whether the Reservation Rule is one of those regulations where a court would decide a cause of action exists for violating that rule.
  6. It is really hard to believe that Laufer is going to prevail, especially now with DOJ weighing in against her.
  7. The DOJ says that self-harm doesn’t matter with respect to standing in a case like this. The hotel says otherwise. The FHA and the ADA are different enough statutorily that it will be interesting to follow where the Supreme Court goes with this argument.
  8. The architectural barrier cases are a completely different kettle of fish than Laufer’s. In the architectural barrier cases, a person is actually showing up to the particular physical site in most cases.
  9. The DOJ brief talks about how most housing discrimination is covert. My question is whether most disability discrimination is covert. I am not entirely sure about the answer to that question if my own experience is any indication. That distinction might matter.
  10. The economics of practicing law are such that it simply may not be financially doable to prosecute cases if a tester is not involved.
  11. With respect to my experience as a deaf (small d intentional), person, I don’t think the Reservation Rule necessarily works very well. I personally have gone on to websites that have said they have rooms that are accessible to the Deaf, deaf, and hard of hearing only to find out that is not the case when I call and get the details of what that means. It also happens all the time with respect to calling the hotel to make the reservation. I can tell you that if a hotel says on their Internet site that they are accessible to the hearing loss community, I don’t believe it. Part of the problem is that the hotels are very focused on structural concerns and much of what a person in the hearing loss community needs doesn’t have much to do with the built-in environment necessarily. The architectural guidelines are also very mobility centric and blind/visually impaired centric with the hearing loss community getting lost in the shuffle. Finally, I am often surprised how often hearing accessible rooms are not available for purchase considering the Reservation Rule’s mandate to ensure availability. It is hard for me to believe that the demand for such rooms is that high at the hotels I frequent.
  12. The DOJ in their brief flat out says that title III of the ADA applies services offered on the web and that a person could have standing if only a website is involved.
  13. With respect to the DOJ statement, that discrimination has been elevated to be analogous to injury that have traditionally formed the basis for suits and American courts, Cummings, which we discussed here, very much says otherwise.
  14. As noted last week, makes sense that the website would be updated to say essentially persons with disabilities need not come because the facility is not accessible. However, there are two problems with that. First, why couldn’t the facility be made accessible to a person in the hearing loss community? Such an individual could have an accessible room without any structural modifications at all if a kit was provided. Second, the statement on the website would be enough to deter an individual from actually visiting the hotel and therefore would give that individual standing providing that individual could show that they had an intent to return to that hotel should it become accessible. So, the website helps them win this particular case and goes a long way to having them lose a case involving a person with a disability that would actually be interested in staying at the hotel.

Today’s blog entry deals with a couple of goings-on at the United States Supreme Court. The first is the Supreme Court decision in Health and Hospital Corporation of Marion County v.  Talevski, here. In this case, the Supreme Court, in a 7-2 decision, held that violations of the federal law dealing with nursing home obligations to their residents created not only a private cause of action but one available under §1983. It is a really complicated case to read. Disability rights advocates were very worried about this decision because of an argument made that spending cause legislation, which is by nature a contract, prohibited a private cause of action. The majority was not having any of that argument.

 

The second development at the Supreme Court is the brief of the petitioner, Acheson Hotels, LLC, filed in the case of Acheson Hotels, LLC v. Laufer. We discussed this particular Laufer case at the Circuit Court level here. We have also discussed other Laufer cases in other Circuits as well in the blog. From my end, it is a bit surprising that Laufer’s attorney was really interested in having the Supreme Court hear this case. The case sets up very nicely for this particular Supreme Court to eliminate ADA tester standing if it so desires. The question before the court in Laufer is whether a tester has standing even where she lacks any intention of visiting that place of public accommodation. The brief lays out all kinds of reasons that the Supreme Court could seize on with respect to limiting ADA standing. As usual, blog entry is divided into categories and they are petitioner’s reasons why Laufer loses and thoughts/takeaways.

 

I

Petitioner’s Reasons Why Laufer Loses

 

  1. Relying on TransUnion, which we discussed here, an asserted informational injury causing no adverse effects. does not lead to article III standing.
  2. Laufer does not claim to have been personally denied access to the hotel, rather she claims other travelers are hindered from accessing that hotel. Such a claim does not give rise to article III standing.
  3. Article III allows for an informational injury to result in standing only if the plaintiff experiences the adverse effects from failing to obtain the information, which is not the case here, as she was not personally harmed.
  4. TransUnion holds that the invasion of a legal right does not give rise to standing absent a concrete injury.
  5. Relying on Havens Realty, which we discussed several times before, such as here, does not work for Laufer because in Havens Realty, the Fair Housing Act case allowing tester standing, the plaintiff relied on a federal statute that personally entitled her to information and granted her a private cause of action to vindicate that informational right. The ADA on the other hand is a different kettle of fish. Laufer relies on a federal regulation that does not personally entitle her to information and on a federal statute that does not grant her a private cause of action to vindicate an informational right.
  6. Relying on Sunshine laws does not work for Laufer either because Laufer: 1) seeks unneeded information from a private business; 2) did not suffer a particularized denial of information; and 3) is not suing under a statute guaranteeing access to the information.
  7. Laufer’s claim of a future stigmatic injury based upon her intended return to a website that she claims will stigmatize her, is a self-inflicted injury that does not support standing.
  8. Laufer is not seeking to remedy her own injuries, but rather she is seeking to enforce the law. TransUnion holds that the choice of how to prioritize how aggressively to pursue legal actions against defendants violating the law falls within the discretion of the executive branch and not the purview of private plaintiffs and their attorneys.
  9. The case is moot because the hotel has updated its website to say that it is not accessible.
  10. Declaratory judgments must satisfy the same article III case or controversy requirements as other cases.
  11. Laufer was not injured when she failed to obtain information she did not need.
  12. Laufer fails to identify any downstream consequences from failing to receive the required information called for in the regulations. Since she is a tester and has no intent to utilize the information called for in the regulations, she has suffered no injury.
  13. The DOJ Reservation Rule ensures people with disabilities who travel have accurate information about their destinations. However, Laufer is not planning to travel to the hotel. Therefore, allowing her to utilize the Reservation Rule as a means of getting standing, does not further the policy behind the rule.
  14. Since Laufer does not plan to visit the hotel, she has no need for information about whether any of it is accessible to persons with disabilities.
  15. For an injury to be particularized, it has to affect the plaintiff in a personal and individual way.
  16. Merely visiting a website, without more, should not be sufficient to establish a particularized injury. To hold otherwise, would give Laufer the ability to sue thousands of hotels across the United States merely by visiting the websites regardless of how geographically remote particular hotel was. Such a holding would dramatically expand the law of standing.
  17. The Fair Housing Act is a different kettle of fish than title III of the ADA as the Fair Housing Act, at 42 U.S.C. §3612(a), grants anyone injured the right to a private cause of action. It also makes it illegal for landlord to represent that any dwelling is not available for inspection, sale, or rental when such dwelling is in fact available. 42 U.S.C. §3604(d).
  18. TransUnion held that just because a statute grants a person a statutory right and purports to authorize the person to sue to vindicate that right, that does not give a person automatic standing.
  19. TransUnion limits Havens Realty by holding that a plaintiff cannot establish standing merely by showing a statutory right to information has been violated.
  20. Havens Realty dealt with a statute while this case deals with final implementing regulations. The distinction matters under TransUnion because nothing in the dissenting opinions in TransUnion suggests that the Department of Justice can create injuries at law.
  21. The Reservation Rule does not purport to create an individual right to accessibility information, unlike the Fair Housing Act. Nothing in the Reservation Rule purports to confer an individual right to accessibility information to someone not needing it.
  22. Laufer lacks a private cause of action to vindicate her alleged denial of access to information.
  23. A violation of the Reservation Rule may give rise to a cause of action under the ADA if the person accesses the deficient website in the course of making travel plans. After all, a person has a right to know whether hotel is accessible before they travel. Therefore, if a person has imminent travel plans, tries to make a reservation at a hotel, and cannot obtain accessibility information, she arguably has a cause of action under the ADA because she had been denied the full and equal enjoyment of the hotel.
  24. While it is true that the DOJ has a final regulation allowing for individual lawsuits, 28 C.F.R. §36.501, a plaintiff must first be subjected to discrimination, assuming the DOJ has the authority to issue such a regulation in the first place.
  25. The Sunshine law cases are of no help to Laufer because those cases involve lawsuits against the government seeking information where at this case involves a lawsuit against a private business. Further, Laufer runs up against the following problems: 1) she has not suffered a concrete injury because she cannot show why the information is useful to her, other than as the basis for a lawsuit; 2) she has not suffered a particularized injury because she never asked the hotel for accessibility information and was never personally denied it; and 3) no statute confers a personal right to accessibility information.
  26. The ADA protects an entirely different interest than the Sunshine laws.
  27. Laufer was not personally subject to any discriminatory treatment as everybody gets treated in the same way by the website.
  28. The reality is that Laufer did nothing more than search for and find a website lacking information that is useless to her. In fact, Laufer does not claim to have standing to sue over actually finding out that the hotel is inaccessible, which the hotel freely admits on its website.
  29. Laufer’s goal of protecting third-party from discrimination does not give her standing.
  30. Havens Realty did not address whether the plaintiff there could have been obtained forward-looking relief, which is the issue here. That is, Laufer has to allege future harm and not just past harm to establish standing. She can’t do that in this case because the hotel admits that it is not accessible.
  31. Nothing in Havens Realty or any other case suggests that a litigant can establish article III injury by threatening to deliberately inflict stigma on herself.
  32. The touchstone of standing is a harm with a close relationship to a harm traditionally recognize as providing a basis for a lawsuit in American courts. It is only in unusual circumstances that emotional distress has been held to be a sufficient injury to be legally actionable and those circumstances don’t approach this case in the least. See also this blog entry discussing this kind of argument.
  33. To the hotel’s knowledge, no court has held that a plaintiff can establish standing by threatening to intentionally inflict emotional harm upon herself.
  34. A plaintiff’s abstract interest in enforcing the law does not confer standing in for policy reasons it shouldn’t.

 

II

Thoughts/Takeaways

 

  1. As I have written before, it isn’t even necessary to limit Havens Realty in order to find that in the ADA tester under title III does not have standing. The Fair Housing Act specifically by statute has language in it talking about emotional injury and the right to information. The statutory provisions of title III of the ADA contain no such similar provisions.
  2. The petitioner lays out dozens of reasons why Laufer loses. Predicting Supreme Court decisions is a fools errand, but it seems extremely likely that at least six justices, if not more, will be receptive to many of the points made by the petitioner in this brief.
  3. It is unsurprising to see the petitioner rely upon TransUnion because we predicted that approach here.
  4. An opportunity was missed by the petitioner to explain another reason why Laufer would not have standing. Title III only allows for injunctive relief and attorney fees. It does not allow for damages and certainly does not allow for emotional distress damages. Accordingly, how can stigmatic injury lead to standing under title III when emotional distress is not even something that a person can get when they sue to have their rights vindicated. A person can only get attorney fees and injunctive relief.
  5. I don’t view the DOJ regulation as creating a separate cause of action. I see the DOJ regulation as just reiterating what the statute allows to happen.
  6. This Supreme Court is very skeptical about the administrative state. So, the distinction between a statute, which was the case in Havens Realty, and a regulation, which is the case here, may be very important to the Supreme Court.
  7. Personally, I wonder about how effective the Reservation Rule is across the disability spectrum. It may be very helpful for those who use wheelchairs, for example, but it is certainly less helpful for those in the hearing loss community. I myself have found no correlation between what a website says about hearing accessible rooms and what is actually happening on the ground when I get to the hotel. So, I don’t even bother with websites and call instead. Even then, I find very little correlation between what the reservation people believe is an accessible hotel room v. what happens when I actually get to the room itself.
  8. There is a whole separate line of jurisprudence talking about when a regulation itself gives rise to a cause of action. It is really complicated but it comes down to whether the regulation is part and parcel of the statute. I am not sure if the Reservation Rule would meet that requirement.
  9. Assuming a Supreme Court decision comes down against Laufer, which is extraordinarily likely, how will that change the rights of people with disabilities to ensure accessibility? Certainly, it would severely limit testers, such as Laufer and others like her, from pursuing accessibility claims. However, lawyers would likely just find other kinds of plaintiffs to bring the suits. For example, all they would have to do is find a particular plaintiff that could show that they had an intent to actually go to that hotel. Plaintiff side lawyers would have to work harder to find such individuals, but I don’t see why they couldn’t be found. Whether this approach would be financially viable at all is a separate question.
  10. It will be interesting to see what Laufer’s attorney say in reply to this brief. In particular, I will be looking for how Laufer’s attorneys get around TransUnion and how they argue that Havens Realty applies. As far as how Havens Realty could apply in their favor, see this blog entry.
  11. It is a very interesting strategy for the hotel to put on its website that it is not accessible. Doing that certainly helps the hotel in this case but on the other hand, it allows anyone local to that hotel a relatively easy way to bring a title III lawsuit without even having to show up at the hotel. Remember, the hotel is still subject to title III independent of the Reservation Rule.
  12. It is also interesting that the petitioner concedes that an ADA action is viable if it arises while in the course of making travel plans.
  13. On July 27, 2023, Seyfarth Shaw in their blog, here, reported that Laufer has decided to dismiss her case and all of her other pending ADA title III lawsuits with prejudice. She also filed a brief stating that her case is now moot and should be dismissed. The hotel intends to oppose the requested dismissal. What lies behind the dismissal is pretty wild and can be found by reading the Seyfarth Shaw blog entry above. They report that this case is the first ADA title III case to reach the High Court in 18 years. They also said that normally the case would be dismissed, but because of the Circuit Court split and the facts surrounding this case maybe it wouldn’t be.

Today’s blog entry is a case that many bloggers are blogging about. As y’all know, I am not afraid to blog on cases that others have blogged on if I feel I can offer my own perspective. This case certainly fits the bill. The case is the 11th Circuit published decision, here, Beasley v. O’Reilly Auto Parts, decided on May 24, 2023. The case deals with several issues that are worth exploring, including the issue of privileges and benefits that we started on last week. Also, nothing in the last week came in that would cause this case to be postponed. So here goes on the case I said I would blog on last week. As usual, the case is divided into categories and they are: facts; court’s reasoning that adverse action is required in failure to accommodate cases; court’s reasoning that the ADA applies to privileges and benefits of employment; court’s reasoning that reasonable accommodations requirements extend beyond essential job functions; court’s reasoning that essential functions can be more than just the specific job activities or tasks; and thoughts/takeaways. As usual, the reader is free to concentrate on any or all of the categories.

 

I

Facts

 

Beasley is culturally deaf, Deaf, and can only understand about 30% of verbal communication through lipreading. He communicates primarily through American sign language.

 

Beasley requested text message summaries of nightly pre-shift meetings, but those were not regularly sent to him, and the one that he was sent were incomplete. He eventually requested an ASL interpreter to discuss with management his exclusion from the nightly meetings but none was provided. The nightly meetings were mandatory and included safety information.

 

O’Reilly failed to provide Beasley with an ASL interpreter to resolve a disputed disciplinary matter that arose after he missed some nights of work in July 2017. Beasley maintained that his time off have been approved, and he requested an interpreter to help them resolve the dispute about the time off with the human resources department. He wasn’t provided an interpreter and maintains that the discipline O’Reilly imposed on him as a result affected his attendance record, which in turn adversely affected his pay.

 

Beasley also requested an interpreter for O’Reilly’s company picnic. O’Reilly tried to provide one but scheduling conflicts prevented it. Beasley’ asked his wife to accompany him to the picnic, and she was able to interpret for him.

 

A few weeks after emailing an HR representative to ask if any day shift positions were available and being informed that none were available, Beasley received a final warning for arriving late to work twice in January. That same day he received that warning, Beasley submitted his resignation. In explaining his decision to resign, he explained that problems communicating with his supervisor and the inadequacies of the meeting summaries his supervisor had given him contributed to his decision to leave. He explained that he had tried to communicate with his supervisor after the night shift meetings but there was no way that one whole sentence equals 5 to 10 minutes of conversation. Beasley also said that he had tried to work things out but it seemed like the supervisors were not doing their job.

 

 

II

Court’s Reasoning That Adverse Action Is Required In Failure To Accommodate Cases

 

  1. An employer violates the ADA when it: 1) discriminates against a qualified individual on the basis of disability; and 2) does so in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.
  2. Discrimination occurs when the employer fails to provide a reasonable accommodation for the disability unless doing so would impose an undue hardship on the employer.
  3. An employer’s failure to reasonably accommodate an otherwise qualified disabled individual itself constitutes discrimination under the ADA unless the employer can show an undue hardship.
  4. Discrimination in the form of a failure to reasonably accommodate is actionable under the ADA only if that failure negatively impacts the employee’s hiring, advancement, discharge, compensation, training, and other terms, condition, and privileges of his employment.
  5. Beasley must show that any failure of O’Reilly to accommodate his deafness negatively impacted the hiring, promotion, firing, compensation, training, or other terms, condition, or privileges of his employment.
  6. Since Beasley was hired and resigned, no adverse action exists with respect to either hiring or being terminated.
  7. With respect to failure to provide an interpreter during his forklift training and the company picnic, Beasley presented no evidence of any adverse employment decision or any other adverse consequences related to O’Reilly’s failure to provide an interpreter in either of those situations. Therefore, his failure to accommodate claims in these two particular instances fail.

 

III

Court’s Reasoning That The ADA Applies To Privileges And Benefits Of Employment

 

  1. A factfinder could reasonably determine that Beasley’s inability to understand or participate in pre-shift meetings did adversely affect the terms, conditions, and privileges of his employment.
  2. O’Reilly personnel testified that important safety information was disseminated at the mandatory nightly meetings and that if an employee didn’t hear the safety information, that would be a failure. Safety is self-evidently a condition of employment in a warehouse, and failure with respect to safety is an important failure.
  3. A jury could reasonably find that if Beasley had been provided with more complete summaries of, or an interpreter for, safety meetings, he would have received higher ratings in at least some of the categories of safety housekeeping, quality of work, productivity, teamwork, and job knowledge. A higher ratings on those evaluations would have meant higher pay.
  4. Pre-shift meeting information was apparently deemed essential for every team member on every shift, which is why everyone had to attend. In fact, O’Reilly personnel testified that the meetings were important for teambuilding, disseminating information, about each employee’s task for that day. He also testified that even when there was nothing major to discuss before a shift, the replenishing team would have a pre-shift meeting because they do it every day and that is how they start their day. So, everyone except Beasley, benefited from the meetings.
  5. A factual dispute exists whether the failure to provide Beasley with the accommodation he requested for the HR meetings prevented him from adequately discussing and successfully resolving the disciplinary dispute. That failure in communication may have adversely affected subsequent discipline and O’Reilly’s evaluation, pay, and the later disciplinary actions imposed upon him.

 

IV

Court’s Reasoning That Reasonable Accommodations Requirements Extend Beyond Essential Job Functions

 

  1. The District Court wrongfully thought that 11th Circuit precedent required Beasley to show his requested accommodations serve an essential job function and concluded that none of them did.
  2. The ADA, 42 U.S.C. §12112(a), plainly prohibits discrimination against a qualified individual on the basis of disability in regards to terms, condition, and privileges of employment.
  3. Terms, conditions, and privileges of employment are more than just the essential functions of a job. 42 U.S.C. §12112(a); 29 C.F.R. §1630.2(o)(1), (3) (the court only cites to §1630(o)(1) but §(o)(3) also lends support to this statement).
  4. In a footnote, the court noted that other Circuits (D.C., Fifth Circuit, and the 10th Circuits), addressing the issue of whether an accommodation must relate to the essential functions of the job have held that the ADA statutory text and its final implementing regulations do not require a plaintiff to show a connection between the reasonable accommodation and the essential functions of his job.
  5. A variety of cases seeming to suggest that accommodations must relate to the essential functions of the job are readily distinguishable or that question was simply not the point in those cases.

 

V

Court’s Reasoning That Essential Functions of a Job Can Be More Than Just the Specific Job Activities or Tasks

 

  1. Regardless of whether accommodations cannot expand beyond those enabling a person to perform the essential functions of the job, it doesn’t matter in this case because attending HR disciplinary meetings and attending the safety meetings are both essential functions of Beasley’s job.
  2. Essential functions of a job are the fundamental job duties of a position that an individual with a disability is actually required to perform.
  3. When determining what is essential, consideration shall be given to the employer’s judgment as to what functions of a job are essential. Such judgment includes the opinion of the plaintiff’s supervisor.
  4. Other relevant factors in determining whether a function of the job is essential include: 1) the amount of time spent on the job performing the function; 2) the consequences of not requiring the incumbent to perform the function; 3) the terms of a collective bargaining agreement; 4) the work experience of past incumbents in the job; and 5) the current work experience of incumbents in similar jobs.
  5. Evidence indicates that attending the replenishment team’s nightly pre-shift safety meeting and understanding what was said during those meetings were essential components of Beasley’s employment. O’Reilly personnel testified as such. Further, the meetings were mandatory, which is an indication of their importance. Beasley simply didn’t have the option to skip those meetings, even if he was unable to understand what was being said during those meetings.
  6. While it is true the pre-shift meetings were not included in Beasley’s official job description, those meetings were still mandatory and not optional.
  7. With respect to the HR disciplinary meetings, attendance at those meetings was essential as was his ability to participate meaningfully in those meetings. In particular, O’Reilly HR representative testified that disciplinary warnings involve an opportunity for both verbal and written communication, which is an important part of the progressive discipline process. An O’Reilly manager also testified that the coaching flowing from the disciplinary process are designed to help team members improve and succeed. That same person testified that disciplinary meetings are important for both sides to fully participate in and that O’Reilly wanted every team member to have that information communicated in those meetings. Accordingly, a reasonable jury could find that even though disciplinary meetings were not part of Beasley’s day-to-day functions as an inbound materials handler, they were an essential part of his job. Finally, the result of those disciplinary proceeding directly affected the amount of pay raise that he received.

 

V

Thoughts/Takeaways

 

  1. The 11th Circuit is making it quite clear that it is the disability that gets accommodated and not the essential job functions. They make that quite clear in this case as well is in the case that we discussed in this blog entry.
  2. As mentioned last week, the Department of Justice has asked the United States Supreme Court to decide what privileges and benefits are with respect to title VII cases. Since the ADA has the same identical terms as in title VII, those cases bear watching. Interestingly enough, I saw today that the City of St. Louis and the State of Alabama have both asked the court not to grant the petition to hear the case.
  3. The courts are split on whether a failure to accommodate requires an adverse action. We discussed a case here where the 10th Circuit held that a failure to accommodate does not require an adverse action. Ultimately, this will have to be decided by the United States Supreme Court. As a person with a disability that has been involved on a personal level in failure to accommodate situations, I can tell you there is most definitely an adverse action on the person with the disability when the person with the disability encounters a failure to accommodate.
  4. Privileges and benefits of employment is a far broader term than essential functions of the job.
  5. The obligation to accommodate a person with a disability extends beyond essential functions of the job to privileges and benefits of employment and the like. Terms, conditions, and privileges of employment are more than just the essential functions of the job.
  6. This is an employment matter, but don’t forget about the title II and title III effective communication rules, whether using them as a guidance in a title I matter or when involved in a title II or title III matter.
  7. A job function could be essential even if it is not listed as such in a specific job description.
  8. Job descriptions are very important in these kinds of matters, but the analysis does not end there.
  9. The decision is published.
  10. The court holds an adverse action is required in failure to accommodate cases, but I don’t necessarily find the authority they turned to persuasive on that point. It also isn’t a far stretch from the opinion to say that the failure to accommodate itself is an adverse action. Beasley comes awfully close to holding as much even if it doesn’t quite get there.
  11. Even if Beasley doesn’t quite get there in terms of saying that a failure to accommodate is an adverse action, it does make it clear that adverse action is a term to be construed broadly.
  12. The Circuits are split on the question of whether a failure to accommodate requires an adverse action in addition to the failure to accommodate. Ultimately, the Supreme Court will have to step in to decide that question.
  13. Beasley is represented by Andrew Rozynski of Eisenberg and Baum whose cases I blog on from time to time.

Hope everybody had a great Memorial Day weekend. This week’s blog entry begins a two-part series talking about how the ADA prohibits discrimination on the basis of disability when it comes to offered privileges and benefits. In this week’s blog entry, we will talk about the recent Eighth Circuit decision, here, in Hopman v. Union Pacific Railroad (we discussed the trial court opinion here). Next week, we will turn to an 11th Circuit case that just came down also discussing the privileges and benefits issue. Since we blogged on Hopman previously, we don’t need to go into great detail with respect to the facts. So, the blog entry will be divided into the categories of: facts briefly;  court’s reasoning that privileges and benefits of employment were not involved with respect to seeking a service animal while plaintiff worked on the job; and thought/takeaways. Since the blog entry is so short, I am figuring that the reader will want to read the whole thing. Of course, the reader is free to concentrate on any or all of the categories.

 

I

Facts Briefly

 

Plaintiff was a military veteran and requested a service dog to accompany him while working on trains as a conductor. The key to this case that makes it different from others is that the case was not about a failure to accommodate, but rather the case was structured as a failure to make reasonable modifications and adjustments so as to enable him to enjoy equal benefits and privileges of employment.

 

II

Court’s Reasoning That Privileges and Benefits of Employment Were Not Involved with Respect to Seeking a Service Animal While Plaintiff Worked on the Job

 

  1. The plain text of EEOC regulations include only benefits and privileges enjoyed by other similarly situated employees without disabilities.
  2. While “benefits and privileges of employment,” is not a term used and defined in the ADA, the statutory meaning of those terms (fringe benefits, access to recreational programs and facilities, and other employer-provided workplace advantages not directly related to job performance), can be derived from various provisions of the statute confirmed by its legislative history.
  3. The EEOC’s interpretive guidance on title I in their Appendix to 29 C.F.R. part 1630 says that the reasonable accommodation obligation extends to all services and programs provided in connection with employment, and to all nonwork facilities provided or maintained by an employer for use by its employees. Accordingly, the obligation to accommodate applies to employer-sponsored placement or counseling services, and to employer-provided cafeterias, lounges, gymnasium, auditorium, transportation and the like.
  4. The EEOC’s Technical Assistance Manual that addresses the issue of accommodation to ensure equal benefits of employment states that employees with disabilities must have equal access to lunchrooms, employee lounges, restrooms, meeting rooms, and other employer-provided or sponsor services such as health programs, transportation, and social events.
  5. The employer duty to provide equal benefits and privileges of employment laid out in 29 C.F.R. §1630.2(o)(1)(iii) is limited by the plain text of the regulation.
  6. The court refers to the EEOC’s interpretive guidance addressing the distinction between assisting an individual in performing the duties of a particular job and assisting the individual throughout his or her daily activities on and off the job. The former is job-related and subject to reasonable accommodation rules, while the latter is considered a personal item (examples given include a prosthetic limb, wheelchair, or eyeglasses), that the employer is not required to provide.
  7. Providing a service dog at work so that an employee with a disability gets the same assistance the service dog provides away from work is not a cognizable benefit or privileges of employment.
  8. ADA failure to accommodate cases are facts and context specific and this decision needs to be interpreted in that light. The court recognized that there are apparently conflicting decisions out there as to whether it is the job being reasonably accommodated or whether it is the disability that is being reasonably accommodated. Even so, the court said that is often possible to reconcile the apparent conflicting decision by paying careful attention to the particular facts and contexts of those various cases.
  9. The court noted that another issue lurking was whether failure to accommodate cases required an adverse action. Even so, it wasn’t necessary to visit that question because both parties seem to assume that it did, and this case is a privilege and benefits case rather than a failure to accommodate case.

 

III

Thoughts/Takeaways

 

  1. Very interesting that this was a privileges and benefits case and not a failure to accommodate case. I am not sure why the choice would need to focus on privileges and benefits rather than reasonable accommodations was utilized here.
  2. I can understand the statement that a person getting the same assistance the service dog provides while at work and away from work is not a cognizable benefit or privilege of employment. However, that does not mean such a person is not entitled to the service animal as a reasonable accommodation.
  3. The Department of Justice has asked the Supreme Court to weigh in on two cases involving the question of what are privileges and benefits with respect to title VII of the Civil Rights Act. The Department of Justice stated in their amicus briefs in those cases (Davis v. Legal Services of Alabama and Muldrow v. City of St. Louis, Missouri), that privileges and benefits should be construed very broadly. If the Supreme Court decides to take up those cases, those decisions should be followed closely to see whether there reasoning might also apply to the ADA, which also has privileges and benefits terminology within it.
  4. Next week, we will take up a published 11th Circuit case, Beasley v. O’Reilly Auto Parts, which also goes into detail on the privileges and benefits question.
  5. If the Eighth Circuit decision in Hopman teaches anything, where it is possible to argue failure to accommodate, it probably makes more sense to argue failure to accommodate than privileges and benefits. See also ¶ III(2) above.
  6. Very much lurking here is the critical question and failure to accommodate cases of whether related the job’s essential function being accommodated or is it the disability being accommodated. The answer depends upon where you are. For example, in the 11th Circuit, as we discussed here, there is a case making it clear that it is the disability that is accommodated. This question is more than a theoretical concern as what is being accommodated will just about always be an issue in service animal cases.
  7. Whether failure to accommodate claim require an adverse action being hotly debated in the courts, and we have discussed that issue in our blog before, such as here and here.
  8. An interesting question is whether the reasoning of this case would affect the reasoning of cases we discussed here , where independent contractors, such as but not limited to a hospital physician, were suing for disability discrimination.

Next week is a published decision from the 11th Circuit in Beasley v. O’Reilly Auto Parts unless something comes up that forces me to move that discussion back.

 

Postscript: on February 20, 2021, United States Supreme Court denied cert.

Recently, the governor of Kansas signed House Bill 2016 giving the Kansas Atty. Gen. all kinds of authority to jump in on lawsuits involving website accessibility, and possibly accessibility in general, if the defendant is a Kansas resident or a Kansas Corporation. I see all kinds of problems with this bill and thought it would be a good discussion. My approach will be similar to the way my blog entry from last week was laid out. In that, I will lay out the bill and then offer my thoughts/comments underneath the particular section that I have a thought about. So, the blog entry is divided into the categories of provisions/thoughts HB 2016 and general thoughts. I can’t believe the reader will not read the whole thing. Next week, the week after Memorial Day, I plan to blog on the Eighth Circuit decision in Hopman v. Union Pacific Railroad, which we previously discussed here.

 

I

Provisions/Thoughts HB 2016

 

AN ACT concerning civil actions and civil procedure; enacting the act against abusive website access litigation; creating a civil action for determining whether litigation that alleges any website access violation under the Americans with disabilities act or similar law constitutes abusive litigation and authorizing penalties for such abusive litigation.

 

Be it enacted by the Legislature of the State of Kansas:

 

Section 1. (a) (1) This section shall be known and may be cited as the act against abusive website access litigation.

 

(2) The purpose of this section is to restrict abusive litigation while allowing for meritorious litigation. It has long been declared to be the policy of this state pursuant to the Kansas act against discrimination, K.S.A. 44-1001, et seq., and amendments thereto, that people with disabilities must be assured equal opportunities to full access to public accommodations and that they are empowered to enforce the right to equal access through litigation, if necessary. The legislature recognizes, however, that in a small minority of cases, the use of litigation to assert the right to equal access is being abused for the primary purpose of obtaining an award of attorney fees for the plaintiff instead of remedying the alleged access violation. This small minority of cases often involve an alleged lack of equal access to a public accommodation’s internet site and are almost always filed in another state’s court system against smaller Kansas businesses. In most cases, the litigation is filed without notifying the public accommodation of the alleged violation, attempting to resolve the issue pre-litigation and providing a reasonable opportunity for the public accommodation to revise its website to remedy the alleged access violation. In order to address the abuse of the legal system by litigants claiming lack of equal access to websites under state and federal anti-discrimination statutes, the state intends to provide a process to curb abusive litigation to mitigate the harms that abusive litigation perpetuates. The state, however, intends that this process shall not be used to preclude a person with a disability from asserting their right to equal access to a public accommodation under the law either as an individual or as a class through litigation in a court in this state brought in good faith to remedy an alleged equal access violation and not for the primary purpose to obtain an award of attorney fees for the plaintiff. The lack of standards issued by the federal department of justice concerning website accessibility under title III of the federal Americans with disabilities act has resulted in the need for this process.

 

My thoughts: I agree that the lack of standards from DOJ creates a big mess.

 

(b) (1) Pursuant to chapter 60 of the Kansas Statutes Annotated, and amendments thereto, the attorney general, on behalf of a class of residents under K.S.A. 60-223, and amendments thereto, that is subject to litigation that alleges any website access violation and any resident of this state that is subject to litigation that alleges any website access violation may file a civil action in any court of competent jurisdiction within this state against the party, attorney or law firm that initiated such litigation for a determination as to whether or not such litigation alleging a website access violation is abusive litigation.

 

My thoughts: It certainly seems to me that such a lawsuit would be interfering with protected rights granted to people with disabilities under 42 U.S.C. §12203(b). As a result, one wonders whether a §1983 action would not be in play upon the filing of any such suit.

 

 

(2) In determining whether any litigation that alleges any website access violation constitutes abusive litigation, the trier of fact shall consider the totality of the circumstances to determine if the primary purpose of the litigation that alleges a website access violation is obtaining a payment from a defendant due to the costs of defending the action in court. For the purposes of making this determination, the trier of fact may assess the following factors and any other factors the trier of fact deems relevant:

 

My thoughts: the motive of a person filing a title III lawsuit is absolutely irrelevant. Whether they have standing is another question.

 

(A) The number of substantially similar actions filed by the same plaintiff, lawyer or law firm or the history of such plaintiff, lawyer or law firm in bringing frivolous litigation or other litigation declared by a court to be abusive litigation in the past 10 years;

 

My thoughts: It certainly seems to me that such a lawsuit would be interfering with protected rights of a serial plaintiff under 42 U.S.C. §12203(b). As a result, one wonders whether a §1983 action would not be in play upon filing of such a suit. Of course, whether standing exists is a separate question.

 

 

(B) the number of full-time employees employed by the defendant and the resources available to the defendant to engage in the litigation;

 

My thoughts: the number of employees is completely irrelevant in title II and title III ADA litigation.

 

(C) the resources available to the defendant to correct the alleged website access violation; Senate Substitute for HOUSE BILL No. 2016—page 2

 

(D) whether the jurisdiction or venue where the action is brought is a substantial obstacle to defending against the litigation;

 

My thoughts: “substantial obstacle,” is so vague so as to wonder whether a due process violation would not be involved because it is impossible to understand what this term actually means.

 

(E) whether the filing party or lawyer filing the litigation is a resident of this state or is licensed to practice law in this state;

 

(F) the nature of settlement discussions and the reasonableness of settlement offers and refusals to settle. The application of such settlement information shall only be used as provided by this section and shall not otherwise alter the rules of evidence applicable to such court; and

 

My thoughts: under our system of jurisprudence, the parties can decide the appropriateness of a settlement. If a lawsuit is frivolous, the defendant has options under existing federal civil rules of procedure.

 

(G) whether any factors under K.S.A. 60-211(b), and amendments thereto, exist in the litigation and whether sanctions are appropriate under K.S.A. 60-211(c), and amendments thereto.

 

(3) Except as provided further, if the defendant in the litigation that alleges a website access violation in good faith attempts to cure the alleged violation within 30 days after being provided written notice or being served a petition or complaint with sufficient detail to identify and correct the alleged violation, there shall be a rebuttable presumption that the subsequent initiation or continuance of litigation that alleges a website access violation constitutes abusive litigation. There shall not be a rebuttable presumption that such litigation is abusive litigation if the alleged website access violation is not corrected, as determined by the court, within 90 days after being provided written notice or being served a petition or complaint with sufficient detail to identify and correct the alleged violation. The trier of fact shall not determine whether such litigation is abusive litigation until after such 90-day period expires or the alleged violation is corrected, as determined by the court, whichever occurs first.

 

My thoughts: It certainly seems to me that such a lawsuit would be interfering with protected rights under 42 U.S.C. §12203(b). As a result, one wonders whether a §1983 action would not be in play upon filing of such a suit.

 

 

(c) If the Kansas attorney general determines in writing that the litigation alleging a website access violation is not abusive and such written determination is attached to the petition in the litigation alleging a website access violation, there shall be a rebuttable presumption that such litigation is not abusive.

 

(d) If the trier of fact determines that an initiator of an action under subsection (b) is a defendant in abusive litigation, the court may award reasonable attorney fees and costs in bringing the action under subsection (b) as well as defending against the abusive litigation to be paid by the party bringing the abusive litigation. In addition, the court may award punitive damages or sanctions not to exceed three times the amount of attorney fees awarded by the court.

 

My thoughts: It certainly seems to me that such a lawsuit would be retaliation for exercising protected rights per 42 U.S.C. §12203(a). As a result, one wonders whether a §1983 action would not be in play upon filing of such a suit.

 

 

(e) At the conclusion of the litigation alleging a website access violation, the court shall review any determination that litigation is abusive and any award of attorney fees under the Kansas rules of professional conduct to determine the reasonableness of the award before issuing a judgment. The results obtained in the litigation alleging a website access violation shall be weighed heavily, particularly if the litigation was resolved in favor of the plaintiff.

 

(f) As used in this section:

 

(1) ”Access violation” means any allegation that a public accommodation does not provide sufficient access under the federal Americans with disabilities act, chapter 39, 44 or 58 of the Kansas Statutes Annotated, and amendments thereto, or any other similar allegation under state or federal law;

 

My thoughts: 1) this is extremely broad in terms of its coverage. Will the Kansas Atty. Gen. be hiring dozens of attorneys to enforce this law?; 2) in several provisions of this bill, it makes it clear that website accessibility is the subject of this law. However, a literal reading of the definition of “access violation,” would appear to extend the law beyond website accessibility.

 

(2) ”public accommodation” means the same as defined in 42 U.S.C. § 2000 et seq. For the purposes of this section, “public accommodation” includes a website operated by a resident of this state; and Senate Substitute for HOUSE BILL No. 2016—page 3

 

My thoughts: I find it very interesting that public accommodation definition does not reference 42 U.S.C. §12181(7) but rather the Civil Rights Act of 1964. The two are not at all the same.

 

(3) ”resident of this state” means any person residing in Kansas and any entity that has filed with the Kansas secretary of state’s office pursuant to chapter 17 of the Kansas Statutes Annotated, and amendments thereto.

 

(g) If the federal department of justice issues standards concerning website accessibility under title III of the federal Americans with disabilities act, the attorney general shall certify to the secretary of state that such standards have been issued. Upon receipt of such certification, the secretary of state shall cause a notice of such certification to be published in the Kansas register. The provisions of this section shall expire on the date such certification is published in the Kansas register.

 

My thoughts: 1) the Department of Justice has said that accessibility rules are on the near horizon when it comes to nonfederal governmental entities (title II), but we have no indication that any such rules are on the horizon for places of public accommodation (title III entities); 2) this provision does say that should the federal government issue accessibility standards the Kansas law sunsets.

 

Sec. 2. This act shall take effect and be in force from and after its publication in the Kansas register.

 

II

General thoughts: the legislation clearly has the Kansas government interfering and retaliating when persons with disabilities exercise their protected rights. As such, Kansas is setting itself up for §1983 violations. If Kansas does file such suits under this law, plaintiffs should strongly consider §1983 action and 42 U.S.C. §12203(a), (b) (retaliation and interference under the ADA), actions as a counterclaim. This law certainly seems like overkill. A lot of the problems could be solved by the courts taking a narrow view as to what standing is. Laufer will be heard by the Supreme Court and that will give us a better idea as to how standing works when it comes to serial plaintiffs.

It has been a while since I blogged on the EEOC running Covid-19 guidance. The EEOC just came out with some more updates (it very well could be the last one for a while considering Covid-19 is now endemic), so I thought I would return to it. The blog entry is only going to focus on the updates that they made on May 15, 2023. You can find the full guidance here. As I did the last time I did this, I will list out the updated sections of the guidance and then put my thoughts underneath that section. So, the blog entry is not divided into our typical categories. There are some 31 updates from the last time they updated the guidance document.

 

  1. Disability-Related Inquiries and Medical Exams

The ADA has restrictions on when and how much medical information an employer may obtain from any applicant or employee.

Prior to making a conditional job offer to an applicant, disability-related inquiries and medical exams are generally prohibited. They are permitted between the time of the offer and when the applicant begins work, provided they are required for everyone in the same job category.  For more information on the timing of disability-related inquiries and medical examinations for applicants, see Section C.

Under the ADA (which is applicable to the Federal sector through the Rehabilitation Act of 1973), once an employee begins work, any disability-related inquiries or medical exams must be “job-related and consistent with business necessity.” One way inquiries and medical examinations meet this “business necessity” standard is if they are necessary to determine whether a specific employee has a medical condition that would pose a “direct threat” to health or safety (a significant risk of substantial harm to self or others that cannot be addressed with reasonable accommodation). For more information on reasonable accommodation, see Section D. Where met, the “business necessity” standard allows for consideration of whether a person may have COVID-19, and thus might pose a “direct threat.” For information on disability-related questions and COVID-19 vaccinations, see K.7.– K.9.

CDC has updated its guidance over the course of the pandemic and may continue to do so as the pandemic evolves and as CDC acquires more information about the virus and different variants. The ADA “business necessity” standard requires that employers utilize the most current medical and public health information to determine what inquiries/medical examinations are appropriate. 

A.1. If an employee calls in sick, how much information may an employer request from the employee in order to protect the rest of its workforce and others (e.g., customers) from infection with COVID-19? (Updated 5/15/23)

If an employee calls in sick, an employer may ask whether the employee has COVID-19 or common symptoms of COVID-19 as identified by CDC. If the employee has COVID-19 or symptoms of the disease, the employer may follow any CDC-recommended period of isolation with respect to when an employee may return to the workplace or otherwise work in close proximity to others.  See A.4., which also addresses following a CDC-recommended period of isolation.  Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.

My thoughts: the EEOC references the CDC recommended period of isolation and also notes that employers have to maintain all information about employee illness as a confidential medical record in compliance with the ADA. Keep in mind, that CDC guidances can be very fluid.

A.2. Where can employers obtain current information on symptoms associated with COVID-19? (Updated 5/15/23)

The list of symptoms commonly associated with the disease may change as public health authorities and doctors learn more and as different variants emerge . Employers should rely on CDC for guidance on symptoms currently associated with the disease. These sources may guide employers when choosing questions to ask employees. See also A.8., addressing the ability of an employer to ask employees if they have been diagnosed with or tested for COVID-19.

My thoughts: CDC guidances can be very fluid and not always easy to understand. Employers may want to consider having their own infectious disease specialist on board when possible.

A.3. When may an ADA-covered employer take the body temperature of employees in an effort to screen for COVID-19? (Updated 5/15/23)

Measuring an employee’s body temperature is a medical examination. See A.6. for a discussion of the type of assessment an employer must do to justify requiring a medical examination (or requiring employees to answer disability-related questions) under the ADA’s “business necessity” standard.  Employers may wish to consult CDC guidance or guidance from other public health authorities to determine if an elevated temperature is a possible indication of infection.  If it is, then taking the temperature of employees will meet the ADA standard.

My thoughts: we have discussed just what is a medical examination in this blog before, such as here. We have also discussed the business necessity standard as well, such as here.

A.4. Does the ADA allow employers to require employees to stay home if they have COVID-19 or symptoms of COVID-19? (Updated 5/15/23)

Employers should consult current CDC guidance to clarify when and for how long it recommends someone with COVID-19, or symptoms of COVID-19 should stay home.  The ADA does not prevent employers from following CDC advice.  See also A.1., which addresses the information an employer may request when an employee calls in sick.

My thoughts: CDC guidances can be very fluid and not always easy to understand. Employers may want to consider having their own infectious disease specialist on board when possible.

A.8. May employers ask all employees physically entering the workplace if they have been diagnosed with or tested for COVID-19? (Updated 5/15/23)

Yes. Employers may ask all employees who will be physically entering the workplace (or otherwise working in close proximity with others, such as clients) if they have COVID-19 or common symptoms associated with COVID-19 as identified by CDC.   Employers also may ask if these employees have been tested for COVID-19 (and if so, ask about the result).   An employer may exclude those with COVID-19, or symptoms associated with COVID-19, from the workplace if consistent with CDC-recommended isolation protocols.   See also A.2.

My thoughts: Covid-19 is now endemic. So on a practical level, I am not sure how many employers are actually doing this or what is the utility of doing it. An employer might want to check with an infectious disease specialist if this is something the employer is thinking of doing.

A.9. May a manager require that a particular employee have a temperature reading or undergo COVID-19 viral testing, as opposed to imposing these medical examinations on all employees? (Updated 5/15/23)

Whether an employer wishes  to require a particular employee, or all employees, to have a temperature reading or to undergo COVID-19 viral testing, the ADA requires that the employer meet the “business necessity” standard because these are medical examinations. Therefore, it is important for the employer to consider why it wishes to require a medical examination. The ADA does not prevent employers from following recommendations by CDC regarding whether, when, and for whom testing (or other medical screening) is appropriate, because following CDC recommendations will meet the ADA “business necessity” standard.  For a discussion of screening testing for employees generally, see A.6.  For a discussion of taking temperature as a screening mechanism, see A.3.  Employers should not engage in unlawful disparate treatment based on protected characteristics in deciding who is subject to medical examinations.

My thoughts: the key take away here is that a temperature reading or Covid-19 viral testing is a medical exam and must meet the business necessity standard (we discussed business necessity many times, including here), before being performed. Also as mentioned above, CDC guidelines can be very fluid.

A.10. May an employer ask an employee who is physically coming into the workplace whether they have family members who have COVID-19 or symptoms associated with COVID-19? (Updated 5/15/23)

No. The Genetic Information Nondiscrimination Act (GINA) prohibits employers from asking employees medical questions about family members. For example, GINA prohibits employers from asking employees to provide their family members’ medical examination results, including COVID-19 test results. GINA, however, does not prohibit an employer from asking employees whether they have had contact with “anyone” diagnosed with COVID-19 or who may have symptoms associated with the disease. Moreover, from a public health perspective, only asking about an employee’s contact with family members would unnecessarily limit the information obtained about an employee’s potential exposure to COVID-19.  Employers should not engage in unlawful disparate treatment based on protected characteristics in deciding who is asked about possible exposure to persons with COVID-19.

My thoughts: as this section illustrates, the ADA is not the only law an employer needs to be thinking about. The Genetic Information Nondiscrimination Act is another such law. For that matter, the FMLA is yet another.

A.11. What may an employer do under the ADA if an employee refuses to permit the employer to take the employee’s temperature or refuses to answer questions about whether the employee has COVID-19, has symptoms associated with COVID-19, or has been tested for COVID-19? (Updated 5/15/23)

An employer may ask employees if they have COVID-19, common symptoms of COVID-19 as identified by CDC, or have been tested for COVID-19 (and if so, ask about the result).  See A.1. and A.8.  An employer also may take an employee’s temperature or require a COVID-19 viral test as long as these medical examinations meet the ADA’s “business necessity” standard.  See A.3., A.6., and A.9.  If an employee refuses to cooperate by answering these questions or taking these medical examinations, an employer may take whatever action it deems appropriate, consistent with its applicable policies or procedures (e.g., barring an employee from physical presence in the workplace or otherwise working closely with others).

To gain the cooperation of employees, however, employers may wish to ask the reasons for the employee’s refusal. For example, the employer may be able to provide information or reassurance that they are taking these steps to ensure the safety of everyone in the workplace, and that these steps are consistent with health screening recommendations from CDC. Sometimes, employees are reluctant to provide medical information because they fear an employer may widely spread such personal medical information throughout the workplace. The employer may reassure the employee that the ADA prohibits disclosure of employee medical information with limited exceptions. Alternatively, if an employee requests reasonable accommodation with respect to screening, the usual accommodation process should be followed; this is discussed in Question G.7.

My thoughts: providing a business necessity exists, the employer can then take any action consistent with the policies and procedures should an employee refuse the testing. A separate question is who pays for any testing because the Covid-19 emergency has now ended. If the employer wants to prevent litigation and possibly losing a case, along the lines of what we discussed here, the employer should pay for it.

A.14. When an employee returns from travel during the COVID-19 pandemic, must an employer wait until the employee develops COVID-19 symptoms to ask questions about where the person has traveled? (Updated 5/15/23)

No. Questions about where a person traveled would not be disability-related inquiries. Employers may wish to consult current CDC guidance regarding domestic or international travel for recommendations on what precautions, if any, are advisable after returning from certain destinations.  If an employer wishes to require a medical examination (e.g., requiring a COVID-19 viral test), it must meet the ADA’s “business necessity” standard.  See A.6. and A.9.

My thoughts: I don’t have any concerns/thoughts with respect to this section.

  1. Confidentiality of Medical Information

With limited exceptions, the ADA requires employers to keep confidential any medical information they learn about any applicant or employee. Medical information includes not only a diagnosis or treatments, but also the fact that an individual has requested or is receiving a reasonable accommodation.

B.1. May an employer store in existing medical files information it obtains related to COVID-19, including the results of taking an employee’s temperature or the employee’s self-identification as having this disease, or must the employer create a new medical file system solely for this information? (Updated 5/15/23)

The ADA requires that all medical information about a particular employee be stored separately from the employee’s personnel file, thus limiting access to this confidential information. An employer may store all medical information related to COVID-19 in existing medical files. This includes an employee’s statement that the employee has the disease or suspects so, or the employer’s notes or other documentation from questioning an employee about symptoms. Similarly, information about an employee having Long COVID must also be treated as confidential. For information on confidentiality and COVID-19 vaccinations, see K.4.

My thoughts: all of the employee’s medical information can be stored in a single file that has to be kept separate from the personnel file.

  1. Hiring and Onboarding

Under the ADA, prior to making a conditional job offer to an applicant, disability-related inquiries and medical exams are generally prohibited. They are permitted between the time of the offer and when the applicant begins work, provided they are required for everyone in the same job category.

C.1. If an employer is hiring, may it screen applicants for symptoms of COVID-19? (Updated 5/15/23)

Yes. An employer may screen job applicants for symptoms of COVID-19 after making a conditional job offer, as long as it does so for all entering employees in the same type of job.  This ADA rule applies whether or not the applicant has a disability.

In addition, if an employer screens everyone for COVID-19 (i.e., screens all applicants, employees, contractors, and visitors because anyone potentially might have COVID-19) before permitting entry to the worksite, then an applicant in the pre-offer stage who needs to be in the workplace as part of the application process (e.g., for a job interview) may likewise be screened for COVID-19.  It is also permissible to screen a subset of applicants pre-offer if they fall into a specific category of individuals (including employees and others) that are subject to COVID-19 screening.  For example, if everyone entering a particular building on campus must undergo COVID-19 screening, an employer also may subject an applicant entering this building to the same screening, even though such screening is not routinely done when entering other buildings.  But note, an employer should not use this COVID-19 screening as an opportunity, pre-offer, to also ask applicants disability related questions and/or to conduct medical examinations that may only be done post-offer. For information on the ADA rules governing such inquiries and examination, see Section A.

My thoughts: the ADA has a disability related inquiries/medical examination scheme that we have talked about before, such as here. Whenever trying to figure out whether a disability related inquiry is involved, getting the help of employees with disabilities is a great idea because of their sensitivity to such questions.

  1. Disability and Reasonable Accommodation

Under the ADA, reasonable accommodations are adjustments or modifications provided by an employer to enable people with disabilities to enjoy equal employment opportunities. If a reasonable accommodation is needed and requested by an individual with a disability to apply for a job, perform a job, or enjoy benefits and privileges of employment, the employer must provide it unless it would pose an undue hardship, meaning significant difficulty or expense. An employer has the discretion to choose among effective accommodations. Where a requested accommodation would result in undue hardship, the employer must offer an alternative accommodation if one is available absent undue hardship. In discussing accommodation requests, employers and employees may find it helpful to consult the Job Accommodation Network (JAN) website for types of accommodations, www.askjan.org. JAN’s materials specific to COVID-19 are at https://askjan.org/topics/COVID-19.cfm.

For more information on reasonable accommodation issues that may arise when employees return to the workplace, see Section G. For more information on reasonable accommodation and pregnancy-related disabilities, see Section J. For more information on reasonable accommodation and COVID-19 vaccinations, see K.1., K.2., K.5., K.6., and K.11.

D.3. In a workplace where employees are required to telework due to the COVID-19 pandemic, should an employer postpone discussing a request from an employee with a disability for an accommodation that will not be needed until the employee returns to the workplace when mandatory telework ends? (Updated 5/15/23)

Not necessarily. An employer may give higher priority to discussing requests for reasonable accommodations that are needed while teleworking, but the employer may begin discussing this request now. The employer may be able to acquire all the information it needs to make a decision. If a reasonable accommodation is granted, the employer also may be able to make some arrangements for the accommodation in advance.

My thoughts: activating the interactive process early is a good idea from both the employer and the employee perspective.

D.7. If there is some urgency to providing an accommodation, may an employer provide a temporary accommodation? (Updated 5/15/23)

Yes. Given the pandemic, some employers may choose to forgo or shorten the exchange of information between an employer and employee known as the “interactive process” (discussed in D.5 and D.6., above) and grant the request. In addition, changes in government restrictions may affect the need for accommodations. Changes in how an employer conducts the interactive process may be necessary to suit changing circumstances based on current public health directives.

Whatever the reason for shortening or adapting the interactive process, an employer may also choose to place an end date on the temporary accommodation (for example, a specific date such as “May 30”). Employers may also opt to provide a requested accommodation on an interim or trial basis, with an end date, while awaiting receipt of medical documentation. Choosing one of these alternatives may be particularly helpful where the requested accommodation would provide protection that an employee may need because of a disability that puts the employee at greater risk during this pandemic. This could also apply to employees who have disabilities exacerbated by the pandemic.

If an employee requests an extension of a temporary accommodation, the employer must consider it. The employer may take into account current circumstances, including the employee’s current disability related needs and any applicable government restrictions or public health directives).

My thoughts: you do see lots of colleges and universities provide temporary accommodations while the paperwork comes in. Stay away from requesting excessive documentation (we discussed excessive documentation here). I agree that there is nothing wrong with putting an end date on a temporary accommodation, but you want to make sure if you are ending it, that the accommodation no longer works. It is always a recipe for litigation to take away an accommodation that is working even if it should not have been granted in the first place.

D.8. May an employer invite employees to ask for reasonable accommodations they may need in the future in advance of a return to the workplace? (Updated 5/15/23)

Yes. Employers may inform the entire workforce that employees with disabilities may request accommodations in advance that they believe they may need when returning to the workplace either part-time or full-time. This is discussed in greater detail in Question G.6. If advance requests are received, employers may begin the “interactive process”—the discussion between the employer and employee focused on whether the impairment is a disability and the reasons that an accommodation is needed. If an employee chooses not to request accommodation in advance, and instead requests it at a later time, the employer must still consider the request at that time.

 

My thoughts: as mentioned above, an early start on what accommodations might be needed is a good idea from both the employer and the employee’s perspective.

D.10. May an employer consider circumstances related to the COVID-19 pandemic when determining if a requested accommodation poses “significant difficulty” (and therefore would be an undue hardship)? (Updated 5/15/23)

An employer may consider whether current circumstances related to the COVID-19 pandemic create “significant difficulty” in acquiring or providing certain accommodations, considering the facts of the particular job and workplace. For example, it may be significantly more difficult to conduct a needs assessment or to acquire certain items, and delivery may be impacted, particularly for employees who may be teleworking. Or, it may be significantly more difficult to provide employees with temporary assignments, to remove marginal functions, or to readily hire temporary workers for specialized positions. If a particular accommodation poses an undue hardship due to circumstances related to the pandemic, employers and employees should work together to determine if there may be an alternative that could be provided that does not pose such problems.

My thoughts: several years back, I heard then Commissioner Chai Feldblum speak. She mentioned that the best way to think of logistical undue hardship was in terms of fundamental alteration in the title II and title III context. I have always agreed with that approach. Lawyers are literalists, and one wonders from reading this particular section whether the EEOC is suggesting that “significant difficulty,” may not be as high of a standard as fundamental alteration. If this is indeed what the EEOC is suggesting, this is quite significant and concerning for persons with disabilities.

D.11. May an employer consider circumstances related to the COVID-19 pandemic when  determining if a requested accommodation poses “significant expense” (and therefore would be an undue hardship)? (Updated 5/15/23)

Prior to the COVID-19 pandemic, most accommodations did not pose a significant expense when considered against an employer’s overall budget and resources (always considering the budget/resources of the entire entity and not just its components). Current pandemic conditions make it less likely that they would be the foundation for finding  “significant expense,” although an employer may consider any pandemic-related circumstances that could be relevant at the time the employer is making an undue hardship assessment.  But, consideration of any relevant pandemic-related reasons does not mean that an employer can reject any accommodation that costs money; an employer must weigh the cost of an accommodation against its current budget while taking into account any constraints created by this pandemic. Even under pandemic-related circumstances, there may be many no-cost or very low-cost accommodations that effectively meet the employee’s disability-related needs.

My thoughts: unlike D10 possibly, EEOC is not backing off on financial undue hardship being determined based upon the entire resources of the entity. I recently saw a report, here, from the Job Accommodation Network that over 50% of reasonable accommodation costs an employer absolutely nothing and the median cost being $300. I can count on one hand the number of cases that I have seen that have said a financial undue hardship is present. For a blog entry discussing just what it means to be looking at the entire resources of the entity when it comes to financial undue hardship, see this blog entry.

D.19.  What are examples of reasonable accommodations that may assist employees with Long COVID? (5/15/23)

The possible types of reasonable accommodations to address various symptoms of Long COVID vary, depending on a number of factors, including the nature of the symptoms, the job duties, and the design of the workplace.  Some common reasonable accommodations include: a quiet workspace, use of noise cancelling or white noise devices, and uninterrupted worktime to address brain fog; alternative lighting and reducing glare to address headaches; rest breaks to address joint pain or shortness of breath; a flexible schedule or telework to address fatigue; and removal of “marginal functions” that involve physical exertion to address shortness of breath.  The Job Accommodation Network has information on a variety of possible reasonable accommodations to address specific symptoms of Long COVID.

My thoughts: long Covid-19 is now a part of the guidance. With respect to any reasonable accommodation, the question should be what gets the person with a disability to the same starting line as a person without a disability. Creativity is the norm and don’t get stuck in boxes. I absolutely agree with contacting the Job Accommodation Network when needed. Also, don’t forget about the do’s and don’ts of the interactive process, which we discussed here.

D.20.  As a result of the end of the COVID-19 Public Health Emergency on May 11, 2023, may employers automatically terminate reasonable accommodations that were provided due to pandemic-related circumstances? (5/15/23)

No.  This emergency declaration dealt with issues involving health care coverage and access to treatment.  It did not address the ADA and Rehabilitation Act requirements regarding provision of reasonable accommodation.  Therefore, the end of this Public Health Emergency declaration does not automatically provide grounds to terminate reasonable accommodations that continue to be needed to address on-going pandemic-related circumstances (e.g., continued high risk to individuals with certain disabilities if they contract COVID-19).  However, an employer may evaluate accommodations granted during the public health emergency and, in consultation with the employee, assess whether there continues to be a need for reasonable accommodation based on individualized circumstances.  Consistent with the ADA’s “business necessity” standard, this evaluation may include a request for documentation that addresses why there may be an ongoing need for accommodation and whether alternative accommodations might meet those needs.

My thoughts: I personally like that the EEOC made this point as it points out a trap people could fall into. As mentioned previously, the EEOC is serious about a business necessity being present in order to make disability related inquiries or perform medical exams of an employee.

  1. Pandemic-Related Harassment Due to National Origin, Race, or Other Protected Characteristics

E.2. Are there steps an employer should take to address possible harassment and discrimination against employees in connection with the pandemic? (Updated 5/15/23)

Yes. An employer may remind all employees that it is against the federal EEO laws to harass or otherwise discriminate against coworkers based on race, national origin, color, sex (including sexual orientation, gender identity, and pregnancy), religion, age (40 or over), disability, or genetic information. It may be particularly helpful for employers to advise supervisors and managers of their roles in watching for, stopping, and reporting any harassment or other discrimination. An employer may want to provide illustrations of pandemic-related harassment for supervisors, managers, and all other employees to help them understand what actions may violate the EEO laws. For example, one illustration might show a supervisor or coworker violating the ADA/Rehabilitation Act by harassing an employee with a disability-related need to wear a mask or take other COVID-19 precautions. Another illustration might show a supervisor or coworker violating Title VII by harassing an employee who is receiving a religious accommodation to forgo mandatory vaccination. (See E.3. for an additional example of pandemic-related harassment.) Finally, an employer may also make clear that it will immediately review any allegations of harassment or discrimination and take appropriate action.

My thoughts: hostile work environment for persons with disabilities is something that actually exists. (See this blog entry for example. See also this blog entry ). One thing to be on the lookout for is harassment of people who decide to wear mask for a variety of different reasons. The best policy here is to be clear to the employees that employees are perfectly free to mask or not and the employees should respect that choice.

  1. Pregnancy

J.2. Is there a right to accommodation based on pregnancy during the pandemic? (6/11/20)

There are two federal employment discrimination laws that may trigger accommodation for employees based on pregnancy.

First, pregnancy-related medical conditions may themselves be disabilities under the ADA, even though pregnancy itself is not an ADA disability. If an employee makes a request for reasonable accommodation due to a pregnancy-related medical condition, the employer must consider it under the usual ADA rules.

Second, Title VII as amended by the Pregnancy Discrimination Act specifically requires that women affected by pregnancy, childbirth, and related medical conditions be treated the same as others who are similar in their ability or inability to work. This means that a pregnant employee may be entitled to job modifications, including telework, changes to work schedules or assignments, and leave to the extent provided for other employees who are similar in their ability or inability to work. Employers should ensure that supervisors, managers, and human resources personnel know how to handle such requests to avoid disparate treatment in violation of Title VII. For information on pregnancy and COVID-19 vaccination, see K.13.

My thoughts: there are actually three federal laws now dealing with accommodating a person who is pregnant. Those laws include the ADA and the Pregnancy Discrimination Act, as mentioned above. However, we also have the Pregnant Workers Fairness Act now. It’s interesting that the EEOC ignored the Pregnant Workers Fairness Act, which we discussed here. I just read that the EEOC is supposed to come out with regulations for the Pregnant Workers Fairness Act at the end of June but is unlikely to do so. Part of the problem with the regulations, may be that the EEOC is currently split 2-2 between the political parties with one vacancy. Hopefully, the EEOC will come up with regulations. In any event, I have long said that when it comes to pregnancy, thinking like an ADA attorney dealing with reasonable accommodation requests is really good preventive law. Until regulations come out, attorneys and employers would be wise to go about their business when it comes to accommodating people who are pregnant by thinking along the lines of the ADA reasonable accommodation process. I also refer you to Robin Shea’s excellent blog entry dealing with the Pregnant Workers Fairness Act, which can be found here.

  1. Vaccinations – Overview, ADA, Title VII, and GINA

Note: Court decisions upholding or rejecting federal vaccination requirements do not affect any statements made in this publication regarding employer and employee rights and responsibilities under the equal employment opportunity laws with respect to employers that require COVID-19 vaccinations.

COVID-19 Vaccinations:  EEO Overview

K.2. What are some examples of reasonable accommodations or modifications that employers may have to provide to employees who do not get vaccinated due to disability; religious beliefs, practices, or observance; or pregnancy?  (Updated 5/15/23)

An employee who does not get vaccinated due to a disability (covered by the ADA) or a sincerely held religious belief, practice, or observance (covered by Title VII) may be entitled to a reasonable accommodation that does not pose an undue hardship on the operation of the employer’s business.  For example, as a reasonable accommodation, an unvaccinated employee entering the workplace might wear a face mask, work at a social distance from coworkers or non-employees, work a modified shift, get periodic tests for COVID-19 (provided testing is consistent with the ADA “business necessity” standard for medical examinations; see A.6.), be given the opportunity to telework, or finally, accept a reassignment.

Employees who choose not to be vaccinated because of pregnancy may be entitled (under Title VII) to adjustments to keep working, if the employer makes modifications or exceptions for other employees.  These modifications may be the same as the accommodations made for an employee based on disability or religion.

My thoughts: the only thing confusing here is that reasonable accommodations does not mean the same thing for religion as it does for people with disabilities, but the EEOC appears to be conflating the two. The Supreme Court recently heard oral argument about whether reasonable accommodations with respect to religion should mean the same thing as reasonable accommodation with respect to disability. Judging from that oral argument, it is absolutely impossible to guess how the Supreme Court will deal with that issue. It may be June before we find out. Also, the very last paragraph of this section is a bit out of date thanks to the Pregnant Workers Fairness Act that recently signed into law.

Employer Incentives For COVID-19 Voluntary Vaccinations Under ADA and GINA

ADA:  Employer Incentives for Voluntary COVID-19 Vaccinations

K.16. Does the ADA limit the value of the incentive employers may offer to employees for receiving a COVID-19 vaccination from a health care provider that is not affiliated with their employer (such as the employee’s personal physician or other health care provider, a pharmacy, or a public health department)? (Updated 5/15/23)

No.  If the health care provider administering a COVID-19 vaccine is not the employer or its agent the ADA does not limit the incentives (which includes both rewards and penalties) an employer may offer to encourage employees to receive a COVID-19 vaccination, or to provide confirmation of vaccination. This is because the ADA’s rules about when disability-related inquiries may be asked and medical examinations required only apply when it is the employer or its agent asking the questions or requiring the medical exam.  See K.9.  By contrast, if an employer offers an incentive to employees to voluntarily receive a vaccination administered by the employer or its agent, the ADA’s rules on disability-related inquiries apply and the value of the incentive may not be so substantial as to be coercive.  See K.17.  Even if an employer requires employees to receive vaccination or provide confirmation of vaccination, as long as it is not required to be administered by the employer or its agent, the ADA does not limit the value of incentives offered, whether rewards or penalties.

As noted in K 4., the employer is required to keep vaccination information confidential under the ADA.

My thoughts: I don’t have any concerns with this section. Undoubtedly, this can get confusing.

 

N

COVID-19, Long COVID, and the ADA

“Actual” Disability

N.1. How does the ADA define disability, and how does the definition apply to COVID-19 and Long COVID? (Updated 5/15/23)

The ADA’s three-part definition of disability applies to COVID-19 and Long COVID in the same way it applies to any other medical condition. A person can be an individual with a “disability” for purposes of the ADA in one of three ways:

  • “Actual” Disability: The person has a physical or mental impairment that substantially limits a major life activity (such as walking, talking, seeing, hearing, or learning, or operation of a major bodily function);
  • “Record of” a Disability: The person has a history or “record of” an actual disability (such as cancer that is in remission); or
  • “Regarded as” an Individual with a Disability: The person is subject to an adverse action because of an individual’s impairment or an impairment the employer believes the individual has, whether or not the impairment limits or is perceived to limit a major life activity, unless the impairment is objectively both transitory (lasting or expected to last six months or less) and minor.

The definition of disability is construed broadly in favor of expansive coverage, to the maximum extent permitted by the law. Nonetheless, not every impairment will constitute a disability under the ADA. The ADA uses a case-by-case approach to determine if an applicant or employee meets any one of the three above definitions of “disability.”

COVID-19, Long COVID, and the ADA

“Actual” Disability

My thoughts: while it is absolutely true that not every impairment will constitute an ADA disability under the ADA as amended, it is very rare after the amendments to the ADA, that a disability will not be found. Remember, the EEOC will tell you that most disabilities should not require extensive analysis. That said, the ADA is always about an individualized analysis.

 

N.2.

When is COVID-19 or Long COVID an actual disability under the ADA? (Updated 5/15/23)

Applying the ADA rules stated in N.1. and depending on the specific facts involved in an individual employee’s condition, a person with COVID-19 or Long COVID has an actual disability if the person’s medical condition or any of its symptoms is a “physical or mental” impairment that “substantially limits one or more major life activities.” An individualized assessment is necessary to determine whether the effects of a person’s COVID-19 or Long COVID substantially limit a major life activity. This will always be a case-by-case determination that applies existing legal standards to the facts of a particular individual’s circumstances.

A person infected with the virus causing COVID-19 who is asymptomatic or a person whose COVID-19 results in mild symptoms similar to those of the common cold or flu that resolve in a matter of weeks—with no other consequences—will not have an actual disability within the meaning of the ADA. However, depending on the specific facts involved in a particular employee’s medical condition, an individual with COVID-19 might have an actual disability, as illustrated below.

Physical or Mental Impairment: Under the ADA, a physical impairment includes any physiological disorder or condition affecting one or more body systems. A mental impairment includes any mental or psychological disorder. COVID-19 and Long COVID are physiological conditions affecting one or more body systems. As a result, they are each a “physical or mental impairment” under the ADA.

Major Life Activities: “Major life activities” include both major bodily functions, such as respiratory, lung, or heart function, and major activities in which someone engages, such as walking or concentrating. COVID-19 or Long COVID may affect major bodily functions, such as functions of the immune system, special sense organs (such as for smell and taste), digestive, neurological, brain, respiratory, circulatory, or cardiovascular functions, or the operation of an individual organ. In some instances, COVID-19 or Long COVID also may affect other major life activities, such as caring for oneself, eating, walking, breathing, concentrating, thinking, or interacting with others. An impairment need only substantially limit one major bodily function or other major life activity to be substantially limiting. However, limitations in more than one major life activity may combine to meet the standard.

Substantially Limiting: “Substantially limits” is construed broadly and should not demand extensive analysis. COVID-19 or Long COVID need not prevent, or significantly or severely restrict, a person from performing a major life activity to be considered substantially limiting under Title I of the ADA.

The limitations from COVID-19 or Long COVID do not necessarily have to last any particular length of time to be substantially limiting. They also need not be long-term. For example, in discussing a hypothetical physical impairment resulting in a 20-pound lifting restriction that lasts or is expected to last several months, the EEOC has said that such an impairment is substantially limiting. App. to 29 C.F.R. § 1630.2(j)(1)(ix). By contrast, “[i]mpairments that last only for a short period of time are typically not covered, although they may be covered if sufficiently severe.” Id.

Mitigating Measures: Whether COVID-19 or Long COVID substantially limit a major life activity is determined based on how limited the individual would have been without the benefit of any mitigating measures—i.e., any medical treatment received or other step used to lessen or prevent symptoms or other negative effects of an impairment. At the same time, in determining whether COVID-19 or Long COVID substantially limits a major life activity, any negative side effects of a mitigating measure are taken into account.

Some examples of mitigating measures for COVID-19 include medication or medical devices or treatments, such as antiviral drugs, supplemental oxygen, inhaled steroids and other asthma-related medicines, breathing exercises and respiratory therapy, physical or occupational therapy, or other steps to address complications of COVID-19.  Examples of mitigating measures for Long COVID include medication or treatment, respiratory therapy, physical therapy, and mental health therapy.

Episodic Conditions: Even if the symptoms related to COVID-19 or Long COVID come and go, COVID-19 or Long COVID is an actual disability if it substantially limits a major life activity when active.

My thoughts: after the amendments to the ADA, an actual disability can be a disability that doesn’t last terribly long if it is a physical or mental impairment that substantially limits a major life activity. I would be wary about getting in a box of how long the disability will last before an actual disability is found. This is especially so since Covid-19 symptoms can be severe in the short term and can last a long time or just for some time.

N.3. Is COVID-19 always an actual disability under the ADA? (12/14/21)

No. Determining whether a specific employee’s COVID-19 is an actual disability always requires an individualized assessment, and such assessments cannot be made categorically. See 29 C.F.R. § 1630.2 for further information on the ADA’s requirements relating to individualized assessment.

My thoughts: absolutely true that an individualized analysis is always required. That said, hard to believe that Covid-19 will not be an actual disability in most cases.

N.4. What are some examples of ways in which an individual with COVID-19 might or might not be substantially limited in a major life activity? How can Long COVID substantially limit a major life activity? (Updated 5/15/23)

As noted above, while COVID-19 may substantially limit a major life activity in some circumstances, someone infected with the virus causing COVID-19 who is asymptomatic or a person whose COVID-19 results in mild symptoms similar to the common cold or flu that resolve in a matter of weeks—with no other consequences—will not be substantially limited in a major life activity for purposes of the ADA. Based on an individualized assessment in each instance, examples of fact patterns include:

Examples of Individuals with an Impairment that Substantially Limits a Major Life Activity:

  • An individual diagnosed with COVID-19 who experiences ongoing but intermittent multiple-day headaches, dizziness, brain fog, and difficulty remembering or concentrating, which the employee’s doctor attributes to the virus, is substantially limited in neurological and brain function, concentrating, and/or thinking, among other major life activities.
  • An individual diagnosed with COVID-19 who initially receives supplemental oxygen for breathing difficulties and has shortness of breath, associated fatigue, and other virus-related effects that last, or are expected to last, for several months, is substantially limited in respiratory function, and possibly major life activities involving exertion, such as walking.
  • An individual who has been diagnosed with COVID-19 experiences heart palpitations, chest pain, shortness of breath, and related effects due to the virus that last, or are expected to last, for several months. The individual is substantially limited in cardiovascular function and circulatory function, among others.
  • An individual diagnosed with “Long COVID,” who experiences COVID-19-related intestinal pain, vomiting, and nausea that linger for many months, even if intermittently, is substantially limited in gastrointestinal function, among other major life activities, and therefore has an actual disability under the ADA.

Examples of Individuals with an Impairment that Does Not Substantially Limit a Major Life Activity:

  • An individual who is diagnosed with COVID-19 who experiences congestion, sore throat, fever, headaches, and/or gastrointestinal discomfort, which resolve within several weeks, but experiences no further symptoms or effects, is not substantially limited in a major bodily function or other major life activity, and therefore does not have an actual disability under the ADA. This is so even though this person is subject to CDC guidance for isolation during the period of infectiousness.
  • An individual who is infected with the virus causing COVID-19 but is asymptomatic—that is, does not experience any symptoms or effects—is not substantially limited in a major bodily function or other major life activity, and therefore does not have an actual disability under the ADA. This is the case even though this person is still subject to CDC guidance for isolation during the period of infectiousness.

As noted above, even if the symptoms of COVID-19 occur intermittently, they will be deemed to substantially limit a major life activity if they are substantially limiting when active, based on an individualized assessment.

For information on possible services and supports for individuals with Long COVID, see the report issued by the U.S. Dept. of Health and Human Services.

“Record of” Disability

My thoughts: as mentioned above, I would be cautious about using timelines with respect to assessing whether a disability exists after the amendments to the ADA. Also, don’t forget about the record of a disability prong as well.

N.5. Can a person who has or had COVID-19 or Long COVID be an individual with a “record of” a disability? (Updated 5/15/23)

Yes, depending on the facts. A person who has or had COVID-19 or Long COVID can be an individual with a “record of” a disability if the person has “a history of, or has been misclassified as having,” 29 C.F.R. § 1630.2(k)(2) , an impairment that substantially limits one or more major life activities, based on an individualized assessment.

“Regarded As” Disability

N.6. Can a person be “regarded as” an individual with a disability if the person has COVID-19 or Long COVID, or the person’s employer mistakenly believes the person has COVID-19 or Long COVID? (Updated 5/15/23)

Yes, depending on the facts. A person is “regarded as” an individual with a disability if the person is subjected to an adverse action (e.g., being fired, not hired, or harassed) because the person has an impairment, such as COVID-19 or Long COVID, or the employer mistakenly believes the person has such an impairment, unless the actual or perceived impairment is objectively both transitory (lasting or expected to last six months or less) and minor. For this definition of disability, whether the actual or perceived impairment substantially limits or is perceived to substantially limit a major life activity is irrelevant.

My thoughts: I get with the EEOC is saying about transitory and minor in this section. It is basically black letter law so to speak. However, keep in mind that we don’t know whether Covid-19 will last six months or less once a person gets Covid-19. Not everyone gets long Covid-19 but many do. Finally, keep in mind that for the regarded as exception to apply, the impairment must be BOTH transitory and minor.

 

 

Today’s blog entry discusses a letter From Representative Spaneberger (D-VA-07), and also signed by Representatives Cohen (D-TN-09), and Titus (D-NV-01), calling out DOT for its Air Carrier Access Act enforcement and demanding more information about their enforcement processes. We also mention a companion bill introduced by Senator Duckworth (D-IL) in partnership with Senator Fischer (R-NE), as well. Finally we will briefly discuss the interplay between the ADA, the Airline Deregulation Act, the Air Carrier Access Act, and State negligence laws. As usual, the blog entry is divided into categories and they are the Spaneberger letter and thoughts/comments. The reader is free to focus on either or both of the categories.

 

I

Spaneberger Letter

 

Dear Secretary Buttigieg:

Thank you for your service and leadership as Secretary of the U.S. Department of Transportation (DOT).

We write to request information regarding your Department’s enforcement of the Air Carrier Access Act (ACAA) out of concern for our constituents and individuals across the nation with disabilities who have experienced discrimination and unacceptable treatment in air travel. We have heard horrifying stories from our constituents with disabilities about airlines dropping them from wheelchairs while boarding airplanes, damaging or losing their wheelchairs, and other reproaches to their safety, health, and dignity. Passengers with disabilities continue to face unnecessary and discriminatory barriers that prevent them from participating in society on an equal basis.

The ACAA is the primary federal statute governing the rights of passengers during air travel. Since 1986, the law has provided federal protections to airline passengers with disabilities, such as (1) prohibiting discrimination on the basis of disability in air travel; (2) defining requirements regarding the accessibility of aircraft facilities; and (3) ensuring airlines provide certain services and accommodations for these passengers. Unlike the Americans with Disabilities Act (ADA), the ACAA does not expressly provide for a private right of action, thus individuals with disabilities cannot enforce their rights under the ACAA through civil litigation in U.S. courts – which significantly weakens the ACAA’s enforcement. As a result, the only recourse available to these consumers is to file a complaint with the U.S. Department of Transportation.

Our understanding of your Department’s current complaint process with regards to the ACAA is that DOT forwards all disability complaints it receives to the airline accused of a violation, requires the airline to respond to the complaint, reviews the airline’s response, and determines whether to open an investigation by weighing numerous factors, including whether DOT believes an airline is systematically violating civil rights requirements or engaging in particularly egregious conduct. The Department currently publishes the data on disability-related complaints that U.S. and foreign passenger airlines operating to, from and within the U.S. receive during each calendar year; however, DOT has not publicly provided information on how many complaints it has resolved. In addition, the DOT has been silent in response to a growing chorus of complaints regarding the Department’s enforcement of the ACAA.

This lack of transparency is particularly concerning given the rise of disability-related complaints filed with DOT in recent years. In 2021, DOT received 1,394 disability-related complaints, an increase of 54 percent from the 905 disability complaints received in 2019. Although the number of disability-related complaints has increased in recent years, DOT has taken only one enforcement action for non-compliance with applicable accessibility-related regulations for the airline industry since 2019. This is a sharp decrease in the Department’s enforcement actions from the 37 consent orders issued to airlines from 2008 through 2019 for disability-related violations.

Given DOT’s insufficient enforcement activity despite an increase in disability-related complaints, please provide responses to the following questions:

  1. What is the DOT’s specific process to investigate and adjudicate potential consumer protection violations when it receives an airline’s response to a disability-related complaint?
  2. What are the criteria used to determine whether the Department will pursue enforcement actions?
  3. How often is this process evaluated and, if appropriate, amended?
  4. Of the 1,394 disability-related complaints DOT received in 2021, what percentage of complaints resulted in dismissal, a civil monetary penalty, or other injunctive relief?
  5. How long did it take to resolve those investigations?
  6. What steps, if any, is the Department taking to improve its disability-related complaints resolution process?

We appreciate DOT’s recent efforts to strengthen the implementation and enforcement of the ACAA and to implement the accessibility-related provisions required by the FAA Reauthorization Act of 2018. However, our constituents – and all Americans – deserve more. We look forward to your response and working with you to protect the civil rights, safety, and dignity of those we serve with disabilities.

Thank you for your attention to this important matter.

 

II

Thoughts/Comments

 

  1. In the Senate, Senator Tammy Duckworth (D-IL) partnered with Senator Deb Fischer (R-NE) to introduce the Prioritizing Accountability and Accessibility for Aviation Consumers Act of 2023. This bipartisan bill would increase transparency about how quickly, effectively, and efficiently consumer complaints related to traveling with a disability are received, addressed and resolved by DOT. Specifically, the bill requires the Secretary of Transportation to publish an annual report on several issues, including:
  • The number of aviation consumer complaints related to passengers with a disability filed within the last five years;
  • The nature of the complaints, including issues with an air carrier, mishandling a passenger’s assistive technology, such as a power wheelchair, accessibility of in-flight services, difficulty in being moved or mishandled by staff, or having difficulties communicating with an air carrier or its staff; and
  • An overview of the review process for such complaints, and description of how quickly each complaint was initiated for review and resolved or addressed.

 

  1. I did not realize that DOT had taken only one enforcement action for noncompliance with applicable accessibility related regulations for the airline industry since 2019.
  2. The lack of transparency by the Department of Transportation detailed in the letter, §I of this blog entry, signed by Representatives Spaneberger (D-VA-07), Cohen (D-TN-09), and Titus (D-NV-01) is concerning.
  3. The Senate legislation (text not available as of yet. ¶ 1 of this section comes from Senator Duckworth’s website), essentially mimics the letter.
  4. It is absolutely correct to say that there is no private cause of action for violation of the Air Carrier Access Act, and we discussed that in this blog entry.
  5. It is also absolutely correct to say that any violations of the Air Carrier Access act with respect to any remediation entirely depends upon what the Department of Transportation decides to do.
  6. I have consulted on several cases involving the intersection of the ADA, Air Carrier Access Act, Airline Deregulation Act, and State negligence laws. The intersection is quite fascinating and can be difficult to parse out.
  7. People may not realize due to several United States Supreme Court decisions, that if they get injured while under the control of an air carrier, they do have a right to sue for negligence but the standard of liability will be the regulations in the Air Carrier Access Act as a result of the Airline Deregulation Act’s preemption clause. So, the regulations put out by the Department of Transportation implementing the Air Carrier Access Act are extremely important.
  8. While we do not have the text of the Senate bill mentioned in II(1) yet, it is worthwhile noting that a Republican has partnered on the bill.
  9. Disability is not partisan. My experience has taught me that if a person has a disability, has a family member with a disability, or a close friend with a disability, then they get disability on some level. You can see the same thing at work when reading judicial opinions. For someone like myself, you can tell a difference in whether a judge gets disability or not for most probably the reasons mentioned in this paragraph. Whether a judge gets disability or not does not depend upon his or her or they’s partisan leanings.
  10. The intersection between the Airline Deregulation Act (you can imagine my confusion when I first started reading these cases and the cases were talking about the ADA but the ADA wasn’t involved), the ADA as we talk about it in this blog, the Air Carrier Access Act, and State negligence laws works something like this: 1) the Airline Deregulation Act has a preemption provision within it, 49 U.S.C. §41713(b)(1), that preempts anything to do with States from enacting or enforcing a law, regulation, or other provision having the force and effect of law that are related to an air carrier’s price, route, or service; 2) the DOT regulations implementing the Air Carrier Access Act preempt the field; 3) most airports are owned and/or operated by a public entity subjecting the airport facility itself to title II of the ADA; 4) once a person is under control of the air carrier, it is the Air Carrier Access Act that applies and not the ADA; 5) the Supreme Court has allowed people with disabilities injured while under control of the air carrier to sue for their personal injuries on negligence grounds. However, due to the preemption provisions and the DOT regulations preempting the field, it is the regulations that govern liability; and 6) a person with a disability that suffers discrimination by one of the private entities operating within the airport, such as one of the concessionaires, would have a title III claim against the concessionaire. That person may also have a claim against the owner/operator of the airport (the public entity in most cases), because of a regulatory provision, 28 C.F.R. 35.130(b)(v), which prohibits a public entity from aiding or perpetuating discrimination by providing significant assistance to another entity that discriminates against persons with disabilities with respect to people utilizing the public entity.
  11. Congress is so consumed by partisan division that it is hard to believe much of anything can get through Congress nowadays. The fact that Senator Duckworth has a Republican partner on the bill is heartening. Also heartening, is that this is entirely regulatory driven and everyone is flying nowadays. So, air carrier accessibility is not a partisan issue. Finally, all the bill requires is for DOT to report certain things on a regular basis.
  12. As a deaf individual that flies from time to time, whether it be for my consulting practice or for visiting my daughter at college, I personally have to deal with air carrier accessibility issues myself (don’t even get me started on deaf room accessibility in the hotels). For example, the announcements in the airport are terribly difficult to hear. Fortunately, the people working the counter let me pre-board so that I don’t have to worry about trying to figure out what they might be saying. The other piece that drives me crazy is that not everything shown on the back of the seat has captioning. So, my viewing choices are much more limited than the hearing person next to me. If there is an announcement during the airplane ride itself, I get a notice on the screen (assuming a screen even exists on the back of the seat), that an announcement is going on but of course have no clue what the person is actually saying. When everything is going well, you can surmise that what is being said is not significant because of the timing in the flight of the announcement. I am fortunate enough where knowing what is being said has never been really an issue for me because my flights are invariably uneventful. Nevertheless, it is an accessibility problem to deal with.
  13. I could see the airlines getting behind Senator Duckworth’s bill for a couple of reasons. First, regulation bring certainty to some degree to a business. Second, air carriers certainly don’t want to see a situation develop where a person would be allowed a private cause of action after exhausting administrative remedies in a manner like the way title VII of the Civil Rights Act and title I of the ADA work. So, a bill like this one would increase transparency and still allow air carriers the luxury of knowing that it is only the DOT they have to worry about when it comes to disability discrimination.
  14. There are very few lawyers working the plaintiff side with respect to disability discrimination by air carriers because of the lack of a private cause of action. Also, anybody can file a complaint with DOT on their website. You don’t need a lawyer to do that, though it may help.
  15. Since negligence actions are allowed if a person with a disability is injured while under the control of the air carrier, you do see more lawyers representing plaintiffs on that side of it. However, those lawyers often do not realize just what are the liability standards in play for the reasons we mentioned above (the preemption of rules by the Airline Deregulation Act).
  16. Coverage under the Air Carrier Access Act is much broader than just what we think of as the typical big airlines.

Before getting started on the blog entry for the week, I do want to note that the Supreme Court just granted certiorari in a case, Loper Bright Enterprises v. Raimondo, asking the question of whether Chevron deference should be overruled. I read the appellate decision yesterday, the Supreme Court does not necessarily have to visit that question. They could for example say that the rulemaking was defective. They also could say that the rulemaking unambiguously exceeded the terms of the statute. That said, we do know that at least four Justices on the current court will not hesitate to get rid of Chevron deference. The appellate decision does a nice job of explaining in its application of the doctrine why you could see members of this court wanting to get rid of Chevron. As the appellate court makes clear, if a statute is ambiguous with respect to the legislative authority, it only takes a rational reason from the regulatory agency to support the regulation to grant Chevron deference. I can’t see this Court going that route. The only question remains as to how they will narrow Chevron. Will they throw it out? Doing that, would be a disaster for both sides of the aisle as it would remove a high degree of probability from legal advising (which might be an issue for Chief Justice Roberts as corporations like the certainty regulations afford). Might they adopt a Kisor approach, which we discussed here, to final regulations. The case definitely bears following, and I will undoubtedly blog on it when it comes down and perhaps blog on the oral argument as well.

 

Turning to the case of the day, it is Mauritz v. Lynn, here, a per curiam decision decided by the Fifth Circuit on April 27, 2023. It deals with statute of limitations, hostile work environment based upon disability, and the consequences of an employer not taking prompt action to remedy the hostile environment. As usual, the blog entry is divided into categories and they are: facts taken directly from the opinion; court’s reasoning that hostile work environment claim was timely and summary judgment should be reversed; court’s reasoning that plaintiff adequately demonstrated that the clinic failed to take prompt remediate action and summary judgment should be reversed; and thoughts/takeaways. Of course, the reader is free to concentrate on any or all of the categories.

 

I

Facts Taken Directly from the Opinion

 

Nena Mauritz has worked at the Clinic since 2009. From 2010 until 2019, she worked in the Clinic’s neurology department; she transferred to the endocrinology department in 2019. Nena also suffers from multiple sclerosis, and has been a patient at the Clinic since 2007. During her time working in the neurology department, Nena was harassed and discriminated against by a doctor in the department, Dr. Scott Lynn.

 

Beginning around 2012 or 2013, Dr. Lynn started calling Nena “Swiss-cheese brain,” referencing her disability. This comment continued throughout her employment in the neurology department, and eventually Dr. Lynn called Nena “Swiss-cheese brain” whenever she made a mistake. In spring 2015, Dr. Lynn said that Nena was “prostituting herself out” in front of two pharmaceutical representatives. Dr. Lynn told another employee to tell Nena “[f]*** you” when that employee next saw Nena.

 

On May 8, 2015, Nena met with Joy Yates, a Clinic administrator, about Dr. Lynn’s conduct. On May 26, 2015, Dr. Lynn remarked to Nena that Nena’s daughter would “get pregnant when she is 17 or 18 and then 1 Because Nena and her husband share the same last name, we refer to Nena Mauritz as “Nena” and Matthew Mauritz as “Matthew.” 2 Scott Lynn and the Clinic subsequently appealed the district court’s decision to decline to exercise supplemental jurisdiction over the state law claims. That appeal is not before us. Case: 22-60371 Document: 00516729857 Page: 2 Date Filed: 04/27/2023 No. 22-60371 3 [Nena would] have a baby to love,” which Nena stated was a reference to her inability to have more biological children. Following the May 26, 2015, comment, Nena met with Yates and the Clinic’s executive director, Tommy Thornton, on May 27, 2015. Nena told Thornton “about names [she] was called and things [ ] Dr. Lynn had said about [Nena’s] daughter.” Nena expressed some trepidation with Dr. Lynn “knowing anything about [her] talking with the administration,” but she asked for assistance to be transferred out of the neurology department, because she did not think that Dr. Lynn would “let her leave.” Thornton stated that Dr. Lynn would not be allowed to retaliate, and asked if Nena would be willing to stay for six to eight weeks in the neurology lab.

After being informed that Nena planned to transfer departments, Dr. Lynn created an assistant manager position within the neurology department. Clinic administration informed Nena that the new position would involve less contact with Dr. Lynn. Although Nena interviewed for four different jobs within the Clinic, she either was not offered a position or removed herself from consideration for the job. During this time, Nena felt that she was being “manipulated” by Clinic administrators, because there had been “no effort” to “assist in transferring [her] out of the [neurology] department.” In October 2015, Nena took the assistant manager position within the neurology department.

 

On November 3, 2015, Dr. Lynn texted Nena a picture of Nena from college, where Nena’s midriff was showing; Dr. Lynn also showed the picture to other employees within the department, “taunt[ed]” Nena with it, and refused to delete it after Nena asked him to. On other occasions, Dr. Lynn would call Nena “out in front of people when [she] was not wearing heels to work,” because “Dr. Lynn knew [Nena] had balance and gait issues from MS.” In May 2016, Dr. Lynn touched a button on Nena’s shirt and pressed on her left breast. At one point in July 2017, Dr. Lynn commented Case: 22-60371 Document: 00516729857 Page: 3 Date Filed: 04/27/2023 No. 22-60371 4 that Nena’s “high-cost drugs” were increasing the Clinic’s healthcare costs; on a different occasion, Dr. Lynn handed Nena a plastic bag and told her to put the bag over her head and to take a deep breath. The next month, after Nena got her words mixed up while talking to Dr. Lynn, he asked Nena “[W]hat’s wrong with you?” and then stated, “[N]ever mind, we all know you have something wrong with your brain.” During this time, Nena met with Yates monthly, and brought up her issues with Dr. Lynn’s behavior, although she told Yates not to directly confront Dr. Lynn. However, Nena believed that Dr. Farrell, another Clinic doctor, would speak to Dr. Lynn about his behavior, and keep Nena out of the spotlight by focusing on Dr. Lynn’s treatment of a former employee, Kristen Fischer.

 

On July 16, 2019, when Nena was standing in the doorway of another employee’s office, with her back to the door, Dr. Lynn pushed her. Nena was able to catch herself on a chair. When she turned to her right, she saw Dr. Lynn walking past her, putting his arms out, and saying, “I’d love to see lopsided Nena fall.” Nena told her co-worker Julia Starrett about the incident. On July 25, Kristy Gould spoke with Nena. Nena said that she was “not interested in pursuing anything because [she] had no faith in [the] administration[.]” However, in August 2019, after Starrett reported Dr. Lynn’s conduct to Clinic administration through a third-party survey, the Clinic investigated the July 16, 2019, pushing incident. The Clinic Board of Directors suspended Dr. Lynn for a week, withheld one month of his salary, required him to complete an independent, professional behavioral counseling program, and required him to participate in ongoing outpatient therapy. After furtherinvestigation, the Clinic imposed additional penalties, including moving Dr. Lynn’s practice away from the main Clinic building and requiring him to pay the costs of the investigation and any monetary settlement paid. Nena was placed on administrative leave with pay, and she interviewed for and accepted a manager position in the endocrinology department. After the Case: 22-60371 Document: 00516729857 Page: 4 Date Filed: 04/27/2023 No. 22-60371 5 July 16, 2019, pushing incident, Nena did not suffer any further harassment

 

Plaintiff filed a charge with the EEOC and then brought suit. The District Court granted the clinic’s motion for summary judgment as to plaintiff’s ADA and title VII claims. It also granted summary judgment on her title VII claim as well. The appellate court throws out the title VII claim as not timely, but we are just going to focus on the ADA part of the opinion in this blog entry.

 

II

Court’s Reasoning That Hostile Work Environment Claim Was Timely and Summary Judgment Should Be Reversed.

 

 

 

  1. Hostile environment claims arise from the cumulative effect of individual acts, some of which may not be actionable on their own.
  2. The statute of limitations cannot begin running with the first act in hostile environment claims because at that point the plaintiff has no claim. For that matter, a claim cannot expire after that first act because the full course of conduct is the actionable infringement. Thus, if an act contributing to the claims occurs within the filing period, the entire time period of the hostile environment may be considered by a court for the purposes of determining liability.
  3. The continuing violation doctrine applies here because plaintiff has alleged a pattern of conduct related to her disability beginning in 2012 and continuing until the July 16, 2019, pushing incident. Since the pushing incident occurred within the period for filing a claim, her hostile work environment claim is timely.
  4. The clinic does not point to any evidence of an intervening cause, nor does it meaningfully contests plaintiff’s version of events. Accordingly, plaintiff adequately demonstrated that the continuing violation doctrine applies to ADA hostile work environment claim.

 

III

Court’s Reasoning That Plaintiff Adequately Demonstrated That the Clinic Failed to Take Prompt Remedial Action and Summary Judgment Should Be Reversed.

 

  1. In a hostile work environment claim, the plaintiff has to show that she: 1) belonged to a protected group; 2) was subject to unwelcome harassment; 3) based on her disability; 4) which affected a term, condition, or privilege of employment; and 5) the clinic knew or should have known of the harassment and failed to take prompt remedial action.
  2. In determining whether harassment is sufficiently pervasive or severe, the court considers: 1) the frequency of the discriminatory conduct; 2) its severity; 3) whether it is physically threatening or humiliating or a mere offensive utterance; and 4) whether it unreasonably interferes with an employee’s work performance.
  3. A defendant can avoid liability when harassment occurred, but the defendant took prompt remedial action to protect the claimant.
  4. Whether an employer’s response to discriminatory conduct is sufficient, necessarily depends on the particular facts of the case, the severity and persistence of the harassment, and the effectiveness of any initial remedial steps.
  5. An employer may be liable despite having taken remedial steps if the plaintiff can establish that the employer’s response was not reasonably calculated to halt their harassment.
  6. In order to demonstrate that an employer has failed to take prompt remedial action, the employee must first show that he or she or they took advantage of corrective opportunities provided by the employer.
  7. If an employee believes that bringing a subsequent harassment complaint would be futile, or it becomes objectively obvious that the employer had no real intention of stopping harassment, the harassed employee is not obligated to go through the wasted motion of reporting the harassment.
  8. The evidence is not so weak or tenuous to say that the clinic took prompt remedial action to protect the plaintiff before the July pushing incident. Accordingly, summary judgment was not warranted in the clinic’s favor.
  9. A factual dispute exists over whether the plaintiff directed the administration to not act, or if she merely wanted her name to be left out of the conversation.
  10. The district court did not view the facts and inferences in the light most favorable to the plaintiff because she stated on several occasions, including in evidence submitted by the clinic itself, that she was primarily concerned about the harasser knowing anything about her talking with the administration. She had also endorsed a plan to have the harasser confronted about his behavior without relating the complaints back to her. Finally, plaintiff’s reluctance to explicitly pursue corrective opportunities may have been due to a justified fear of retaliation by the harasser.
  11. In light of the facts presented (see §I of this blog entry), it is quite reasonable to infer that plaintiff believed that bringing a direct complaint against the harasser would be futile, because the clinic had no real intention of stopping the harassment. In a footnote, the court also notes that it is possible that plaintiff’s complaint never even made it up the administrative ladder of the clinic.
  12. In a footnote, the court notes that they agree with the district court that the clinic took prompt remedial action after the pushing incident. The court further noted that the plaintiff did not meaningfully contests that issue on appeal.
  13. In a footnote, the court remanded to the district court to determine whether the conduct was sufficiently severe or pervasive.

 

IV

Thoughts/Takeaways

 

  1. The facts in this case are really egregious. It is extremely hard for me to believe that a jury in 2023 would not believe that the conduct described in section I of this blog entry was not sufficiently severe or pervasive to constitute harassment based upon a disability. I will be flabbergasted if this case doesn’t settle.
  2. I read several labor and employment management side blogs. Every one of them will tell you that when faced with a harassment situation, it must be promptly investigated and remediated. The clinic simply did not do that here and likely will literally pay the price for that.
  3. Hostile work environment based upon disability is a viable claim.
  4. Federal courts absolutely hate the continuing violation doctrine, but it makes perfect sense that in a hostile work environment claim, the continuing violation doctrine has to be the doctrine for figuring out the statute of limitations.
  5. Not having a plan to promptly investigate claims of harassment, sets up the employer for the employee successfully claiming that subsequent action on their part would be futile. It also creates a lousy environment for other employees.
  6. On a summary judgment motion, courts need to look at the facts and inferences in the light most favorable to the plaintiff. Defense lawyers would probably disagree with me on this (I am not a plaintiff site lawyer), but I too often see courts simply not do this. It is great to see a court calling out a lower court by explicitly stating that facts and inferences when it comes to summary judgment motions must be construed in the light most favorable to the plaintiff.
  7. Have policies and procedures in place for allowing employees to report harassment without fear of repercussions, and make sure you promptly investigate those claims.