Today’s blog entry is not on an issue that I have blogged on previously. It deals with the question of what happens when a person leaves employment and was otherwise qualified during that employment, but after the employment ends, some discriminatory action occurs. Does title I apply since the person is no longer otherwise qualified/qualified? The circuit courts are split on this. This blog entry will discuss how this kind of case could go either way. As usual, the blog entry is divided into categories and they are: plaintiff loses: Stanley v. City of Sanford, Florida-facts; plaintiff loses: Stanley-11th Circuit’s reasoning; plaintiff could win: Castellano v. City of New York-facts; plaintiff could win: Castellano-Second Circuit’s reasoning; and thoughts/takeaways. Of course, the reader is free to concentrate on any or all of the categories.

 

I

Plaintiff Loses: Stanley- 11th Circuit’s Facts

 

When Stanley retired, she continued to receive free health insurance through the City. Under a policy in effect when Stanley first joined the fire department, employees retiring for qualifying disability reasons, such as Stanley’s Parkinson’s disease, received free health insurance until the age of 65. But, unbeknownst to Stanley, the City changed its benefits plan in 2003. Under the new plan, disability retirees such as Stanley are entitled to the health insurance subsidy for only twenty-four months after retiring. Stanley was thus set to become responsible for her own health insurance premiums beginning on December 1, 2020. She filed this suit in April 2020, seeking to establish her entitlement to the long-term healthcare subsidy.

 

II

Plaintiff Loses: Stanley v. City of Sanford, Florida-Court’s Reasoning

 

  1. Title I of the ADA applies to qualified individuals with a disability. As such, it has a temporal qualification. That is, a qualified individual under title I of the ADA, 29 C.F.R. §1630.2(m), is a person who satisfies the requisite skill, experience, and education requirements of the position and can, with or without reasonable accommodation, perform the essential functions of the job. See also, 42 U.S.C. §12111(8)
  2. in 1997, the Supreme Court held that an individual could sue his or her former employer under title VII for a post-employment retaliatory act. That decision doesn’t affect the question before the court because the statutory language of title I of the ADA is different.
  3. Under title I, only someone who with or without reasonable accommodation can perform the essential functions of the employment position that an individual holds or desires is protected from disability discrimination.
  4. “Holds,” and “desires,” are in the present tense. So, a victim of unlawful disability discrimination desires or already has a job with the defendant at the time the defendant commits the discriminatory act.
  5. Title I consistently uses the term “qualified individual,” to refer to active employees or current applicants.
  6. The court recognizes a circuit court split with the Sixth, Seventh, Ninth, and now Eleventh Circuits finding the temporal qualifier dispositive. The Second and Third Circuits (we will discuss the Second Circuit case below), have held to the contrary.
  7. Policy arguments do not empower a court to ignore unambiguous text and the Second and Third Circuits are policy driven decisions.
  8. The amendments to the ADA did not impact the qualified language of title I at all even if it otherwise expanded coverage of who has a disability and changed the causation language.
  9. The Fair Pay Act is of no help either because it doesn’t affect the requirement that a qualified individual be involved when it comes to title I of the ADA.
  10. The court need not address the argument as to when the disability discrimination claim accrued (an argument could have been made that the disability discrimination claim accrued while she was still employed because the handwriting was on the wall), because plaintiff waited too long to make the argument as it only came up in an amicus brief.
  11. Equal protection claim fails because persons with disabilities are in a rational basis class.

 

III

Plaintiff Could Win: Castellano v. City of New York-Facts

 

Various classes of police and fire officers in New York City who retired with disability pensions claimed that the City and applicable pension funds discriminated against them by denying them benefits for more lucrative variable supplement funds available only to retirees who retired after 20 years of service and who did not already receive disability pensions. One of the plaintiffs had an option to make a choice that would have qualified him for the variable supplement funds, but he was never told of that option when he made the choice. The other plaintiffs claimed that the set up itself was discriminatory.

 

IV

Plaintiff Could Win Too: Castellano v. City of New York Second Circuit’s Reasoning

 

  1. Title I of the ADA, 42 U.S.C. §12112(a), prohibits an employer or labor organization from discriminating against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment, including the provision of fringe benefits. See 42 U.S.C. §12112(b)(2).
  2. A qualified individual with a disability is defined as an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires. 42 U.S.C. §12111(8).
  3. Title I of the ADA failed to specify when a potential plaintiff must have been a qualified individual with a disability when it comes to a claim that the provision of retirement or fringe benefits is discriminatory.
  4. A literal reading of the committee report suggesting that the phrase “at the time of the employment action,” refers to the actual moment when the employer performed the discriminatory act would permit employers to discriminate freely against disabled retirees who had been qualified individuals up to the point of retirement, but who no longer held employment positions and or were no longer able to perform the essential functions of their former employment due to their health condition.
  5. A literal reading would allow an employer to terminate an employee in violation of the ADA and then deny that person fringe benefits because an employee could not bring an ADA claim for the latter violation as a result of not being a qualified employee at the time the action is brought. Such a reading would permit an employer to deny post-employment fringe benefits on the basis of disability to any retiree the day after but not the day before his retirement, which is completely irrational.
  6. The fact is that many fringe benefits are earned during years of service before the employment has terminated but are provided in years after the employment relationship has ended.
  7. Since retired employees who receive fringe benefits no longer work or seek to work for their former employers, they do not need to be able to perform the essential functions or any functions of their former employment. So, provided that retired employees were qualified while employed and on that basis became entitled to post-employment benefits, the purpose of the essential functions requirement is satisfied.
  8. Since fringe benefits are earned for actual service of employment, it is irrelevant whether former employees otherwise eligible for fringe benefits, could also perform the essential functions at or after termination of the employment.
  9. An employee’s entitlement to post-employment fringe benefits arises (as much or more so than does his interest in not facing post-employment retaliation), during the period of his employment.
  10. An interpretation preventing former employees who are no longer qualified individuals from bringing claims of discrimination in the provision of post-employment fringe benefits undermines the plain purpose of ADA §12112(a), (b)(2). Many fringe benefits are paid out to those who no longer work and who are no longer able to work, and some fringe benefits are paid out to individuals precisely because they can no longer work. An expansive reading of the dispositive nature of “qualified individual,” would undermine the ADA’s broad remedial purpose to prohibit disability discrimination in all aspects of the employment relationship and leave disabled retirees unprotected from discrimination in the provision of pension, health and life insurance, and other post-employment benefits.
  11. The Second Circuit mentioned the Supreme Court retaliation decision and says that the policies underlying the Supreme Court decision applies with equal force to the fringe benefits situation.
  12. The EEOC has taken the position that qualified individuals include former employees who can no longer perform the essential functions of their former employment when it comes to fringe benefits situations.
  13. The language of the ADA and its legislative history makes it inconceivable that Congress in the same breath would expressly prohibit discrimination fringe benefits, yet allow employers to discriminatorily deny or limit employment benefits to former employees who ceased to be otherwise qualified/qualified at their retirement even though they had earned those fringe benefits through years of service in which they perform the essential functions of their employment.
  14. It is illogical to come up with a decision that excludes a large body of retirees from ADA coverage in light of the ADA’s broad remedial purpose.

 

V

Thoughts/Takeaways

 

  1. This question undoubtedly headed to the Supreme Court, perhaps even with this case.
  2. Stanley is a published decision as is Castellano.
  3. Very hard to say what the Supreme Court would do when faced with this question, even with the configuration of the current Supreme Court being what it is. While it is true that people with disabilities do not fare well when it comes to employment matters at the Supreme Court, they do fare well outside of the employment context. Furthermore, the policy arguments set forth in Castellano and how a literal reading of the ADA makes a shambles of the ADA’s purpose is, to my mind, quite persuasive. It will be interesting to see if a majority of the Supreme Court feels the same way. Also, pretty safe to say that three Justices will find Castellano persuasive rather than Stanley. Where the other votes will come from is not clear. Also, the fact that the many of the Justices are on the older side makes this kind of case a wildcard.
  4. As we have mentioned previously, such as here, persons with disabilities are the only group of people whose equal protection classification changes depending upon the facts of the particular case. People with disabilities may be in the rational basis class but they also may be in a class as high as intermediate scrutiny depending upon the facts. No other group of people changes their classification that way.
  5. On June 24, 2024, the Supreme Court decided to hear Stanley, which is not surprising considering the circuit court split on the issue. Oral argument will occur in the next term. I am not going to hazard a guess as to how this will go.
  6. After rereading this blog entry and thinking about it, I began to wonder why the case focused on Title I of the ADA and not, in this case, on Title II of the ADA. After all, the case law is overwhelming that Title II of the ADA applies to everything that a public entity does, and a public entity is involved here. So, I went to the complaint to see what the complaint said. The complaint is an interesting read. It doesn’t actually say that it is under Title I of the ADA. It does say that they filed a claim with the EEOC and received a notice of right to sue. So, one can assume that it is a Title I case.
  7. As to why a Title II claim was not filed, a couple of possibilities exist. First, there are few lawyers like myself that go across all the titles of the ADA. So, it is possible that filing under Title II of the ADA simply never occurred to the lawyers filing the claim. Second, it is also possible that Title II was not attractive because of the decent possibility after Cummings that emotional distress damages are not available. We already know that punitive damages are not available per Barnes v. Gorman.
  8. While in my opinion, the dissent has the better argument, I can see from a literal reading of Title I how the majority came up with a temporal requirement with respect to Title I cases. That got me thinking as to whether it is plain from the statutes and even the final implementing regulations, whether a temporal requirement might exist for Title II and Title III. When I did the research, the answer is that based upon a plain reading of the statutes and the applicable final regulations, temporal requirements do not exist in Title II and Title III cases. In particular, 42 U.S.C. §12132 prohibiting discrimination on the basis of disability by nonfederal governmental entities has no suggestion of a temporal requirement. The final implementing regulation of DOJ with respect to Title II defining otherwise qualified also contains no indication of a temporal requirement. See 28 C.F.R. §35.104. Turning to Title III, 42 U.S.C. §12182 prohibiting discrimination on the basis of disability by a place of public accommodation has no suggestion of a temporal requirement. The applicable final implementing regulations for Title III also has no suggestion of a temporal requirement. For example, 28 C.F.R. §36.202(a) prohibits denying participation on the basis of the disability with respect to goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation. All of this creates a very interesting question of how it cuts both ways. On the one hand, why would two separate titles of the ADA not have a temporal requirement but one title would? On the other hand, one could say that due to the suggestion of a temporal requirement in Title I of the ADA, a suit alleging discrimination on the basis of disability with respect to benefits promised to former employees should fall under Title II or under Title III, whichever is applicable. Of course, for persons with disabilities not being able to sue under Title I of the ADA, would mean a different set of damages available. Title I of the ADA allows for the full range of damages under Title VII of the Civil Rights Act. Title II allows for compensatory damages if you can show deliberate indifference, but arguably compensatory damages might not include emotional distress damages and definitely does not include punitive damages. Title III only allows for attorney fees and injunctive relief. So, a decision saying that Title I of the ADA would not apply to this situation but the other Titles of the ADA would apply would mean a very different set of damages available to the plaintiff.
St. Louis arch in the springtime against a blue sky.
St. Louis Arch

The blog entry for the week is getting posted a bit later than usual because my daughter came home for a short fall break and went back yesterday. Today’s blog entry is a published decision from the Court of Appeals of the State of California, Fourth Appellate District, in Martin v. Thi E-Commerce LLC, here. The case discusses the question of whether absent a gateway to a physical place, an Internet site is subject to title III of the ADA. The majority holds that it is not. The dissent argues that it is. The case gives an excellent rundown of the arguments for and against, and I thought it would be worth addressing. The facts are really straightforward. As is typical in these cases, you have blind individuals using screen readers claiming that the website is inaccessible. There are no physical stores involved whatsoever. All of the business occurs on the website. As usual, the blog entry is divided into categories and they are: majority opinion holding that absent a gateway, an entity must be a physical place to be subject to title III of the ADA (statutory and regulatory text); majority opinion holding that absent a gateway, an entity must be a physical place to be subject to Title III of the ADA (legislative history and public policy); dissenting opinion; and thoughts/takeaways. All the judges agreed that intentional discrimination was not involved in this case (the Unruh Act can apply by either intentional discrimination or by an ADA violation), and so I am not going to focus on that piece of it. Of course, the reader is free to focus on any or all of the categories. As far as the picture is concerned, the St. Louis Arch is often referred to as the gateway to the West. So, I thought that picture would be appropriate since the gateway concept always comes up in these cases.

 

I

Majority Opinion Holding That Absent A Gateway, An Entity Must Be A Physical Place To Be Subject To Title III Of The ADA (Statutory and Regulatory Text).

 

  1. The ADA, at 42 U.S.C. §12181(7), defines the phrase place of public accommodation in terms of a list of 12 categories, each of which has specific examples.
  2. The relevant federal regulation, 28 C.F.R. §36.104, defines a place of public accommodation and adds that a place of public accommodation is a “facility.” It goes on to define facility as, “all or any portion of buildings, structures, sites, complexes, equipment, rolling stock or other conveyances, roads, walks, passageways, parking lots, or other real or personal property, including the site where a building, property, structure, or equipment is located.” A website is not in any of those categories, which isn’t surprising since the ADA was enacted in 1990 before the Internet took off.
  3. In the 30 years since, websites have become central to American life.
  4. Broad agreement exists that a website is subject to the ADA if it operates as a gateway or nexus to a physical location. However, the federal courts differ considerably on whether a standalone website is subject to the ADA.
  5. Several Circuits have held that title III of the ADA does not require a physical place. Those, circuits include: First Circuit (Carparts Distribution Center v. Automotive Wholesaler’s Association); Second Circuit (Pallozi v. Allstate Life Insurance Company); and the Seventh Circuit in dicta (Doe v. Mutual of Omaha Insurance Company). Those decisions relied on travel services and insurance company being contained within the list of categories with neither of those places necessarily being physical places at the time the ADA was enacted.
  6. The Circuit Courts holding that a physical place is required include: Sixth Circuit (Parker v. Metropolitan Life Insurance Company); Ninth Circuit (Weyer v. 20th Century Fox Film Corporation); Fifth Circuit (Magee v. Coca-Cola Refreshments USA, Inc., which we discussed here); and the Third Circuit (Ford v. Schering-Plough Corporation).
  7. Citing to a case we discussed here, Martinez v. Cot’n Wash, Inc., the court noted: 1) plain meaning of the term “place,” weighs against saying that a place of public accommodation is something other than a physical place; 2) dictionaries overwhelmingly define place as involving a physical location; 3) neither title III nor any implementing regulations provide a different definition of the word; 4) technology when the ADA was passed in 1990, suggests that Congress was unaware that the term carries a connotation of beyond a physical space and therefore could include certain sales and retail establishments from the scope of title III based upon a lack of connection to a physical space; 5) there were many businesses operating outside of brick-and-mortar premises in 1990, including some that have been in operation for decades, such as mail order catalogs. Nevertheless, Congress decided to use the term “place,” the plain meaning of which involved a physical space and can easily be understood as an intentional inclusion of businesses without any physical presence; 6) the United States Supreme Court recently noted that “place,” connotes a physical space with respect to a New Jersey law protecting against discrimination in places of public accommodation.
  8. Carparts is not persuasive because if the legislature meant to radically depart from the overall thrust of including solely physical locations, a legislature would not do so by burying examples in the list with the hope that judicial explorers would find it someday. Instead they would make it much more explicit. Furthermore, the travel agency is and often is a physical space open to the public.
  9. To the extent modern usage has evolved to allow the word “place,” to refer to a website, it would be strained to say that that is what Congress knew when the law was enacted in 1990.

 

II

Majority Opinion Holding That Absent A Gateway, An Entity Must Be A Physical Place To Be Subject To Title III Of The ADA (Legislative History and Public Policy).

 

  1. The Internet did not exist at the time the ADA was passed. So, the legislators who voted on the ADA had no conception of the digital revolution coming.
  2. The line about the ADA evolving with technology is just one line buried in the committee report written at a time when the Internet revolution had not yet occurred.
  3. At the federal level, the history of the Internet is a hands-off treatment. That can be seen in the Telecommunications Act of 1996 and the Internet Tax Freedom Act of 1998.
  4. When Congress amended the ADA in 2008, it took no legislative action to clarify just what is a place of public accommodation.
  5. While the Department of Justice has said that the ADA applies to Internet sites, it has not come up with regulations despite filing numerous amicus briefs [and I note for that matter, even settling many cases].
  6. No later than 2010, Congress and DOJ both recognized the need to clarify whether and under what circumstances a website constitutes a place of public accommodation. They also agreed that such clarification should take a broad and inclusive approach. Yet they failed in the 12 years that followed to provide any such clarification through regulation or statute.
  7. The ADA just does not address Internet accessibility in the context of title III, though §508 of the Rehabilitation Act certainly does.
  8. The FCC has taken a similar, hands-off approach to regulating the Internet.
  9. Congress, across multiple administrations and both political parties, has maintained a consistent publicly stated policy of avoiding passing laws interfering with the free market based development of the Internet. Also, relevant regulatory agencies have either avoided regulating the Internet or have deliberately chosen not to act. Therefore, the only reasonable conclusion is that Congress intended for the ADA not to apply to websites.
  10. Subjecting standalone website to title III of the ADA would impose costs on businesses and society generally. The weighing of those costs and benefits is better left to legislature and regulatory entities rather than the judiciary.

 

Dissenting Opinion (Judge Delaney)

 

  1. Today, dictionaries are now realizing that the term “place,” can include something beyond a physical space.
  2. Just because a meaning of a statute may be more “natural,” or more commonly used, does not render that statute unambiguous.
  3. At least some of the types of businesses listed in 42 U.S.C. §12181(7) operated exclusively by telephone or by written correspondence at the time the ADA was enacted. Today, numerous businesses listed in those categories are quite capable of existing without operating in a physical space. So, their inclusion in the statute at a minimum leaves room to reasonably infer that Congress did not intend a physical limitation.
  4. Another indicator that Congress did not intend a physical limitation, is the open ended language at the end of each enumerated category that begins with, “or other….”
  5. While Congress chose to limit the categories of private entities to which title III of the ADA was applied, it expressly allowed for its application to types of entities not specifically listed so long as they fell within the scope of one of the enumerated categories.
  6. Regulations are not a definitive indicator of congressional intent. After all, it is not unusual for regulations to misinterpret or run counter to statutory language and congressional intent.
  7. A court must choose the construction of the statute that comports most closely with the apparent intent of the lawmakers, with a view to promoting rather than defeating the general purpose of the statute.
  8. The clear, sweeping, comprehensive purpose and intent of the ADA is furthered by an interpretation that does not limit the ADA’s application to brick-and-mortar public accommodations. In fact, it would be defeated by an interpretation that persons wishing to access goods and services of a public accommodation with a physical location open to the public are protected by the ADA while those attempting access identical goods and services from an identical public accommodation lacking a physical location open to the public are not.
  9. Applying the ADA only to public accommodation with a physical location is effectively a determination that Congress intended to freeze the legislation in time, applying it only to life as it existed when it was enacted. Such a course of thinking, is problematic and curtails the envisioned integration of people with disabilities into all aspects of everyday life.
  10. Congress made clear that technological advances would impact a public accommodation’s responsibilities. For example, while auxiliary aids and services was defined in the legislation, the definition was intended to provide examples only. To the extent technological advances rendered affordable or readily available auxiliary aids or services previously unaffordable or unavailable, Congress explained that the change would require covered entities to provide it.
  11. To conclude that Congress intended the legislation to evolve with technological and other advancements regarding the provision of auxiliary aids and services by public accommodations, but not with the same types of advancements regarding public accommodation themselves is unsound. Indeed, the ADA was intended to be future driven.
  12. Any statutory interpretation leading to absurd consequences must be avoided.
  13. Post enactment occurrences noted in the majority opinion have little if any value. The Supreme Court has said that the views of a subsequent Congress form a hazardous basis for inferring the intent of an earlier one.
  14. Expanding the ADA to require accessibility of websites would not work against innovation and a naturally competitive free market because it would further expand the market through additional consumers who have been so far effectively excluded from the ever-expanding aspect of the economic and social mainstream of American life.
  15. DOJ did issue propose regulations dealing with Internet accessibility, though it did withdraw the regulations to study the matter further.
  16. Legislative silence is a poor beacon to follow when construing a statute
  17. Citing to South Dakota v. Wayfair, the dissent noted that the Internet’s prevalence and power have changed the dynamics of the national economy.
  18. E-commerce is not the only way in which the Internet and other factors have revolutionized everyday life. The Internet also provides one of the central means of information gathering and communication in our culture. The Internet is now practically unavoidable in daily life. While some physical locations ultimately reopened after the pandemic, many others remain as online only offerings. Adding to those offerings, is an ever-growing presence of exclusively Internet-based goods and services and industries such as education, health, professional services, transportation, travel services, and entertainment.
  19. There can be no denying that in today’s world that the Internet is central to every aspect of the economic and social mainstream of American life. While Congress could not have understood that at the time of the ADA, it did understand that the world around us would change and believed that the nondiscrimination mandate contained in the ADA should be broad and flexible enough to keep pace.
  20. Interpreting the ADA to have no physical location restriction and applying it to any qualifying public accommodation irrespective of its chosen method to transact with customers and clients, is the only interpretation of the legislation that promotes and effectuate the law’s purpose and avoids (citing to a case that we discussed here– Scribd), severely frustrating congressional intent that individuals with disabilities fully enjoy the goods, services, probative, and advantages available indiscriminately to other members of the public.

 

III

Thoughts/Takeaways

 

  1. I don’t know how long the process is for an opinion to become certified for publication. I can tell you that just within the last couple of months that there have been lots of developments with respect to Internet accessibility in the regulatory environment. For example, several federal agencies have said in guidances that they are serious about Internet accessibility for people with disabilities. Also, DOJ did issue propose regulations dealing with Internet accessibility for title II entities, which we discussed here.
  2. It is about time that someone cited South Dakota v. Wayfair in an Internet accessibility case. We predicted that possibility over five years ago, here. What I do find strange is that while the dissent cited the opinion, the opinion badly missed an opportunity to cite from the nearly two dozen instances in the opinion making clear that public accommodation is not limited to a physical space. The dissent should have availed itself of that opportunity.
  3. One of the strongest arguments against a standalone website not being subject to title III of the ADA is that Congress passed up a chance to add that in the 2009 amendments to the ADA.
  4. The majority opinion does note the trend is overwhelming that an Internet site acting as a gateway to a brick-and-mortar location is subject to title III of the ADA. The problem is that what is a gateway or nexus varies from jurisdiction to jurisdiction and from court to court.
  5. There is a Circuit Court split on the issue of whether standalone websites are subject to title III of the ADA, so it will have to be decided by the United States Supreme Court. Now that South Dakota v. Wayfair has been explicitly raised by the dissenting opinion, attorneys on the plaintiff side should take advantage of that and dive into the opinion to show that a place of public accommodation need not be a physical space. I suppose they could just cite my blog for their proposition:-)
  6. The dissenting opinion discussion of auxiliary aids and services specifically being subject to the evolution of technology is not something I have seen before, but it is something that plaintiff’s attorneys should add to their arguments.
  7. I would expect an appeal to the California Supreme Court. The majority and dissenting opinions are an excellent preview of the arguments that will also be made ultimately to the United States Supreme Court. It is only a matter of time before the United States Supreme Court gets a case like this. I am not going to predict what they are going to do. As I have mentioned before, plaintiff side attorneys would have to be out of their minds not to utilize in a big way South Dakota v. Wayfair in their arguments before the Supreme Court, especially since it now has been explicitly brought up in a dissenting opinion.
  8. The Supreme Court decision in Laufer, the oral argument we discussed here, will not necessarily affect the arguments made by the majority and dissenting opinions in this case, but it might.

Today’s blog entry will discuss the oral argument in Acheson Hotels v. Laufer, which took place on October 4, 2023. We previously mentioned the appellate case here (links to the blog entries therein). The two categories of this blog entry are questions from the Justices and thoughts/takeaways. Of course, the reader is free to focus on either category.

 

I

Questions from the Justices

 

  1. Justice Thomas and Justice Jackson both wanted to know why the case should be decided by the Supreme Court at all since both parties agree that the case is moot.
  2. Justice Sotomayor wanted to know if an advisory opinion wasn’t being requested. She also wanted to know if mootness needs to be decided before standing or the other way around.
  3. Chief Justice Roberts was of the opinion that standing should be decided before mootness as a purely logical matter.
  4. Justice Jackson wanted to know what would happen if they found the case moot and then therefore vacated the opinion below under a doctrine called Munsingwear.
  5. Chief Justice Roberts pointed out that the Supreme Court can decide on its own whether to deal with the standing issue or with the mootness issue first.
  6. Justice Barrett wondered if deciding the case on the merits might not help solve things now because it is a no doubter that a serial Internet filer case will reach the Supreme Court at some point. So, why not get ahead of it.
  7. Justice Alito referred to the case as being dead as a doornail and was worried about the Supreme Court issuing an advisory opinion. Justice Kagan had a similar concern.
  8. Justice Kagan wondered if the Supreme Court could even decide the case in the first place because the case is moot.
  9. Justice Kagan noted that the hotel had a new owner and that the website was now in compliance with the ADA reservation rule.
  10. Justice Jackson wondered if foreseeability of a future case, which was entirely likely, was a sufficient reason to issue an advisory opinion.
  11. Justice Gorsuch wanted to know what kind of allegations with respect to a case like this would be sufficient to give a plaintiff standing. That is, is it an intent to visit the hotel or something else?
  12. Justice Sotomayor wondered if there was a stigmatic harm to an individual seeking information so as to enable an individual to make a subsequent purchase/reservation. She also wondered if a website was the same thing as a sign on a physical property saying that a person is not welcome.
  13. Chief Justice Roberts noted that any intent to return allegations in the complaint could have its veracity assessed during the course of litigation.
  14. Justice Kagan pointed out that the defense was not challenging tester standing as a general principle.
  15. Justice Kagan wondered if you could have standing if the individual is not interested in the service of the facility. For physical facilities the answer is quite clearly yes, so why not the answer the same for websites?
  16. Justice Barrett inquired whether this was a situation where an individual could not sue at all or whether this was a situation that the individual does not get to first base because injunctive relief is the remedy and requires an intent to return.
  17. Justice Jackson wanted to know how a tester with respect to websites was any different than a person testing whether a lunch counter would serve an African-American during the civil rights movement of the 1960s.
  18. Justice Jackson inquired as to whether the intent to return requirement of injunctive relief is with respect to the website or whether it is with respect to the hotel itself.
  19. Chief Justice Roberts pointed out that serial filers are everywhere, so why not decide the issue now because this kind of lawsuit will inevitably reach the United States Supreme Court.
  20. Justice Barrett wondered whether the Supreme Court will ever get a say on tester standing because serial filers are very strategic. Chief Justice Roberts had similar concerns.
  21. Justice Alito inquired as to whether the distinction between the merits of the case v. standing mattered.
  22. Justice Sotomayor wondered whether an ADA tester could ever have standing. She was also not buying the distinction between standing with respect to the Internet v. standing with respect to a physical place.
  23. Justice Kagan inquired whether if making a reservation is the key, why couldn’t a plaintiff make a reservation, then cancel the reservation, and then claim standing?
  24. Justice Kavanaugh pointed out that you could have standing without a cause of action and a cause of action without standing.
  25. Justice Barrett wanted to know whether you needed to make a reservation and be disabled or was it just enough to suffer discrimination of the kind prohibited by the ADA.
  26. Justice Jackson wanted to know whether an online user v. trying to use the service was the proper distinction to make.
  27. Justice Thomas wanted to know what is the difference between a stigmatic and an informational injury.
  28. Justice Kavanaugh wanted to know what to make of the fact that the information given was not discriminatory but it is at the hotel where the discrimination would have occurred. He also wanted to know whether this case was a situation of a person in one state complaining about the goings-on in another state or whether this case was more like Havens Realty.
  29. Justice Kagan wanted to know how a plaintiff could be discriminated against if the individual is not planning to use any of the services.
  30. Justice Gorsuch wanted to better understand how Laufer’s view differs, if at all, from the view advocated by DOJ. He also wanted to know whether Internet surfing by itself was sufficient to confer standing.
  31. Chief Justice Roberts wanted to know if Havens Realty was actually distinguishable.
  32. Justice Jackson wanted to know whether dignitary harm required an intent to return when seeking injunctive relief.
  33. Justice Kavanaugh was trying to figure out when an online tester would ever have standing. He also wanted to know if the information on a website was the discrimination or whether what would likely happen at the hotel was the discrimination.
  34. Justice Sotomayor wanted to know if the litigation was all about screen readers and the reservation rule and whether any litigation regarding Internet accessibility was about any other topic. She also wanted to know how any decision would impact screen reader cases.

II

 

Thoughts/Takeaways

 

  1. The best result for the plaintiff is for the court to say that the case is moot and then per Munsingwear vacate the lower court opinion.
  2. It seems that there are three votes (Jackson, Kagan, and Sotomayor), in favor of saying that the case is moot and that is the end of the matter. Justice Thomas and Justice Alito clearly believe that the case is moot. Not clear whether Justice Thomas and Justice Alito would leave it at that or also go on to the standing argument as well.
  3. The Supreme Court can either attack mootness or standing in whatever order it wants to do so.
  4. Chief Justice Roberts and Justice Barrett clearly want to decide the case on other grounds besides mootness. That is, they clearly want to discuss the standing issue.
  5. Interesting how both parties to the case presume that tester standing is a thing under title III of the ADA. Based upon the statutory language differences between the Fair Housing Act and title III of the ADA, that is certainly not a given as Justice Sotomayor pointed out.
  6. Lots of debate over what intent to return means when it comes to an Internet focused situation. That is, is it the intent to return to the web or is it an intent to take advantage of the services that the website is advertising.
  7. Several Justices were concerned about the strategic moves that serial filers, such as Laufer, made during this case and might make in the future.
  8. As I point out in my writings, I believe Chief Justice Roberts is right to point out that Havens Realty is certainly distinguishable from the title III of the ADA tester situation because of the differences in the statutory language of the Fair Housing Act and the ADA’s title III.
  9. Justice Kavanaugh fairly points out that there is a question as to whether an online tester could ever have standing. That generated a very interesting response from Laufer’s attorney where he said that if there is an intent to travel requirement no one is going to ever have standing to bring the suit in any meaningful [way]. Justice Kavanaugh immediately agreed with that and then Laufer’s attorney went on to say that was because the trip would have already taken place before the person could get their relief.
  10. I don’t see the issue with this case impacting screen readers because in that situation it is the person using the screen reader that is suffering a very specific kind of harm if the Internet site is not accessible to him or her or them. Same analysis for a voice dictation user, such as myself.
  11. If the Supreme Court does not decide the case as moot and leaves it at that (that was very well could depend on Justice Thomas and Justice Alito), Laufer undoubtedly loses. The only question is what that decision look like.
  12. Regarding advisory opinions, I have seen scholars argue that the Supreme Court does issue advisory opinions on occasion. I saw a lot of that discussion subsequent to the Supreme Court’s decision in the 303 Creative case. Some scholars argued that to their mind 303 Creative was not the first time the Supreme Court issued an advisory opinion, assuming that 303 Creative was an advisory opinion.
  13. Curious why no one is talking about South Dakota v. Wayfair, which we discussed here. In that case, the Supreme Court made clear that the Internet could be a physical place or at least have every feature of a physical place.

This week’s blog entry is super short. I am actually traveling all week. The first half of the week is Minneapolis to speak at the Minnesota CLE Bankruptcy Institute. The second half of the week is parents weekend at my daughter’s college.

The blog entry for the week is the updated EEOC harassment guideline, which can be found here. As you know, I am not particularly a fan of guidances in general, though there are a few that I like, such as here. In general, I find guidances are not all that informative and are often used as a crutch by attorneys. The updated EEOC harassment guideline, the public has 30 days from publication in the Federal Register to comment on them, is quite good. The guideline is a treatise discussing 30 years of harassment law and is written in a very understandable language. The two takeaways I take from the EEOC updated harassment guidance are: 1) harassment based on disability is a thing; and 2) the objective standard for harassment means looking at it from the reasonable person with the protected characteristic, i.e. disability. Will a judge actually be able to apply that standard properly? Will the EEOC? My experience is that people get disabilities regardless of partisan affiliation, if they have a disability themselves, have a family member with a disability, or associate with a person with a disability. If none of those are true, then the person may very well not get disability. Considering the typical profile of a federal judge, the odds are that a federal judge does not automatically get disability. What the standard sets up is that a plaintiff side attorney might consider having an expert to discuss just how a “reasonable person with a disability,” would perceive the work environment. For example, in the blog entry from last week, just about everybody with a disability would perceive that environment as hostile.

Have a great week y’all.

Before getting started on the blog entry of the day, I wanted to point out that the White House issued a memorandum detailing how agencies should go about Internet accessibility. The document, which can be found here, is basically a best practices guide for executive agencies with respect to their Internet sites. Of particular note, is a reiteration of §508 and also a mention that WCAG 2.1 must be looked at as well. Also, next week I will be traveling all week (in the first part of the week, I will be speaking at the Minnesota Continuing Legal Education Bankruptcy Institute in Minneapolis, Minnesota on working with disabled clients and disabled attorneys. In the second part of the week and through the weekend, it’s parents weekend at my daughter’s college. So, I will try to get a blog entry done over the weekend for next week. If not, I will skip blogging next week and be back the following week).

 

The blog entry of the day is EEOC v. Army Sustainment, LLC, a decision from the Middle District of Alabama decided on September 26, 2023, here. The case involves an Army contractor that had a policy prohibiting the use of certain prescription drugs regardless of whether those drugs were properly prescribed and were compensating for people’s disabilities. There is a lot to unpack in this decision, and I wouldn’t be surprised if it gets appealed to the 11th Circuit. The 11th Circuit is very friendly to persons with disabilities. As usual, the blog entry is divided into categories and they are: facts; just when does the statute of limitations begin to run; whether an adverse action exists; whether the regarded as claims can go forward; pretextual; whether the failure to accommodate claims can go forward; disparate impact or disparate treatment; whether the interference claims can go forward; and thoughts/takeaways. Of course, the reader is free to concentrate on any or all of the categories. As a way of attacking the blog entry, you would probably be perfectly okay if you focused on the categories outside of the facts section and then referred back to the facts section as needed. Of course, you could also go in order as well if you prefer that. You definitely will want to read the thoughts/takeaways section for sure.

 

I

Facts (a bit lengthy but unavoidable; taken directly from opinion)

 

AFS was the primary helicopter maintenance contractor at Fort Rucker (now known as Fort Novosel) from 2003 to 2018 and employed thousands of aircraft mechanics, technicians, and other aviation specialists at that location. In 2012, AFS implemented an “Alcohol and Drug Free Workplace Procedural Guide 2501” that set forth policies and procedures related to employee drug use. Under this policy, AFS drug tested employees in safety-sensitive positions1 for a variety of drugs, 2 including opioids, amphetamines, and benzodiazepines.3 (See Doc. 169-7 at 8, 12.) Under the February 2016 version of the policy, with respect to prescription medications, employees were required to “report medications to the AFS Office of Occupational Health [OHD] when these prescriptions may affect their ability to safely perform their duties.” (Doc. 169-37 at 7.) AFS’s drug policy stated that “[c]ertain prescription medications may be unsafe for use during work hours but are acceptable for use during off duty hours while other prescription medications have been deemed inappropriate for use at all for employees in a safety sensitive 1 According to AFS, the determination of which positions were classified as “safety-sensitive” was based on an “interactive process with the Government Flight Representative (GFR), who represented Army’s interests regarding flight operations at Ft. Rucker.” (Doc. 153 at 19 (citing Doc. 153-56).) 2 This is referred to as the “9-Panel.” 3 It is undisputed that these substances have both illegal and prescription applications. 4 environment” such as “pain killers with narcotics, anti-depressants, and prescription diet medications.” (Id.)

 

In February 2016, AFS made two major changes to its drug policy that are the subject of the current dispute. First, prior to 2016, AFS employed a “6-to-8 Hour Rule” for employees in safety-sensitive positions who were legally prescribed 9- Panel medications. Under this rule, AFS’s in-house OHD could independently clear an employee with a prescription 9-Panel medication to return to work so long as the employee agreed in writing that they would not take their medication within 6-to-8 hours before their shift. According to AFS, employees who submitted to this written agreement were rarely required to be cleared for work by outside medical professionals. In February 2016, AFS eliminated the 6-to-8-hour rule and instead required employees to undergo a medical evaluation with an outside Occupational Medical Provider (OMP) to determine whether an employee’s prescription medication was appropriate for use during work hours. (Id.)

 

Second, as part of the medical evaluation process, employees prescribed medications “that may affect [their] ability to safely perform their job duties”— including 9-Panel medications—were sent to an OMP to discuss alternative medications “for any medication deemed to be a risk to the employee and/or the workplace.” (Id. at 12.) As part of this prescription medication review process, AFS directed the OMPs to send a “Safety Sensitive Letter” to the employee’s prescribing 5 doctor to confirm whether the employee was stable on their safety-sensitive medication or whether alternative medications were available that were as effective. If the prescribing doctor indicated that no alternative medications were available, the OMPs had to determine whether the employee could safely work while taking the medication in question. The policy additionally provided that “[e]mployees determined unable to work within the parameters of the Alcohol and Drug Free Workplace Policy will be deemed disabled and therefore eligible to apply for benefits IAW the short-term disability plan.” (Id. at 10.)

 

In November 2016, two AFS employees—Paul Nolin and Winston Mervin Simmons—filed charges of discrimination with the EEOC alleging that AFS’s revised prescription drug policy discriminated against them because of their disabilities.

 

After receiving Simmons’s and Nolin’s charges of discrimination, the EEOC launched an investigation to determine whether AFS engaged in unlawful 8 discrimination in violation of the ADA. As a result of its investigation, the EEOC found reasonable cause to conclude that AFS violated the ADA by not allowing the charging parties and a class of individuals “to continue to work or return to work while taking their disability-related medications” that were prohibited under AFS’s alcohol and drug policy, and by failing to engage in the interactive process. (Doc. 153-49 at 23.) Furthermore, the EEOC determined that AFS’s alcohol and drug policy constituted a blanket policy using impermissible qualification standards that “have the effect of discrimination on the basis of disability” in violation of the ADA. (Id.) On April 6, 2020, the EEOC filed suit after conciliation efforts with AFS failed

 

Due to the revised AFS policy, approximately 72 AFS employees underwent medical evaluations regarding their prescription medications. Of those 72 employees, the EEOC brought this action on behalf of 17, including: Amber Ficquette Cottrell, Azeala Hutchinson, Heath McElveen, Marcus Rich, Mark Blinn, Matthew Black, Winston Mervin Simmons, Michael Sanders, Paul Nolin, Richard Johannes, Rick Skinner, Rickey Helmes, Rickey Sego, Sabra Distasio Kelley, Tammy Bright Hudson, Tammie Johannes, and Timothy Murray. The group’s disabilities include conditions such as chronic pain, anxiety, post-traumatic stress disorder (PTSD), and attention-deficit/hyperactivity disorder (ADHD). (See 9 generally Docs. 169-1 through 169-17.) All of these individuals were legally prescribed 9-Panel medications and were required to undergo medical evaluations with OMPs to be cleared to return to work. According to the EEOC, these individuals were prescribed medications to treat or manage their underlying disabilities yet were told by the OMPs that their prescription medications were prohibited under AFS’s drug policy, and thus, they could not return to work while using these medications.

 

Despite expressing their desire to continue using their prescription medications, some of these individuals agreed to stop taking them because they feared they would face forced unpaid leave or employment termination. (See, e.g., Doc. 169-4 at 3; Doc. 169-5 at 5; Doc. 169-7 at 3–4; Doc. 169-8 at 5; Doc. 169-11 at 4; Doc. 169-14 at 5; Doc. 169-17 at 6–8.) Some of them were also forcibly placed on unpaid leave, including Matthew Black, Mark Blinn, Heath McElveen, and Marcus Rich.

 

The OMPs ultimately cleared Matthew Black, Heath McElveen, and Paul Nolin to return to work while using their prescription medications for ADHD, but they were not permitted to continue using other prescription medications. (See Doc. 155-9 at 12, 15; Doc. 155-10 at 1–2, 11; Doc. 155-26 at 9.) Mark Blinn was allowed to continue taking his prescription medication (Vicoprofen) to treat his chronic pain 10 condition so long as he took FMLA leave when using it during work hours. (See Doc. 155-12 at 51.)

 

In some instances, when an employee was not cleared to return to work while using certain prescription medications, before AFS’s in-house OHD would clear the employee to return to work, the employee was required to sign a “Results of Rx Medication Review” form acknowledging that their prescription medication was “deemed inappropriate for use in a safety sensitive work environment” and that they could be subject to disciplinary action, including termination, if found to be taking their prohibited medications in the future. (See Doc. 155-10 at 2; Doc. 155-26 at 12; Doc. 155-19 at 1; Doc. 155-21 at 10; Doc. 155-25 at 3; Doc. 155-26 at 12.)

 

II

Just When Does the Statute of Limitations Begin to Run

 

  1. In non-deferral states, which includes Alabama (Georgia too for that matter), the claimant has to file a charge with the EEOC within 180 days of the date of the alleged discrimination.
  2. The general trend among district court decisions is that the EEOC cannot pursue claims arising outside the charging period even when those untimely claims are related to otherwise timely claims.
  3. Each person the EEOC brings a claim on behalf of has to fall within that 180 day timeframe. To hold otherwise, would permit the EEOC to destroy all principles that go along with a statute of limitations and force employers to defend against zombie like claims from the distant past.
  4. The statutory plain language requires a charge to be filed with 180 days of when the alleged unlawful employment practice occurred. It also talks about damages for back pay not accruing from the date more than two years prior to the filing of a charge.
  5. Failure to accommodate claims are discrete acts, and so the continuing violation doctrine is not applicable. Same can be said, i.e. discrete acts, for the placing of employees on unpaid leave until they were cleared to return to work.
  6. Either of the two claims filed by the lead plaintiffs activates the statute of limitations.

III

Whether An Adverse Action Exists

 

  1. An adverse employment action is one that impacts the terms, conditions, or privileges of a plaintiff’s job in a real and demonstrable way.
  2. In other words, an employment action must have a serious and material change in the terms, condition, or privileges of employment in order to be actionable.
  3. Whether the employer’s conduct constitutes an actionable adverse employment action under the ADA is determined by whether a reasonable person in the plaintiff’s position would view the employment action in question as adverse.
  4. The EEOC has not shown how merely being required to cease use of certain prescription medications, without more, is sufficiently adverse to be actionable.
  5. The EEOC has shown that the people placed on involuntary unpaid leave did suffer an actionable adverse employment action.
  6. The EEOC has not shown how the directive to cease using certain prescription medications had a tangible adverse effect on the claimants employment. After all, several people continued working in the same positions even after agreeing to no longer take the prescription medications, and there is no evidence that any of those were terminated, demoted, disciplined, or missed out on advancement opportunities as a result of that action.
  7. Neither signing a form nor fear of termination are sufficient to constitute an adverse employment action.
  8. The impact of stopping prescription medications is insufficient to support a discrimination claim.
  9. Unpaid leave does constitute an adverse employment action since it directly impacts an employee’s compensation.

 

IV

Whether the Regarded As Claims Can Go Forward

 

  1. The regarded as prong of the ADA is dispositive in this case. Under that prong, a person is regarded as having a disability when that individual has been subjected to an action because of an actual or perceived physical or mental impairment regardless of whether or not the impairment limits or is perceived to limit a major life activity. In other words, the question is whether the employer took adverse action against an individual because of an actual or perceived physical or mental impairment.
  2. Forcing people on unpaid leave based on a belief that the prescription medications could (emphasis in opinion), interfere with their ability to safely perform their work duties satisfies the regarded as prong.
  3. The evidence is sufficient to meet the regarded as definition especially considering the policy that provided employees deemed unable to work on the policy are disabled and therefore able to apply for short-term disability benefits.
  4. In a footnote, the court notes that the employer treated prescription medication as a proxy for unsafe work performance without any evidence that any of those individuals could actually perform their job duties while taking their prescribed medications.
  5. The weight of persuasive authority clearly leans in the EEOC’s favor with respect to cases concluding that plaintiff can show they were regarded as having a disability when their employers restricted or prohibited them from working based upon the employer’s perception that their prescription medications limited their ability to work.

V

Pretextual

 

  1. By the employer claiming it was accommodating claimants because of the prescription medication use, they implicitly concede that its actions were motivated by the claimants disabilities.
  2. While it is true that prescription medication usage does not mean necessarily that a person is a person with a disability, it is not disputed that these particular claimants took the medication because of their disabilities and that the employer’s forced leave was necessarily and inextricably tied to their respective conditions.

 

 

 

VI

Whether The Failure to Accommodate Claims Can Go Forward

 

  1. According to the district court judge, the 11th Circuit in Beasley, which we discussed here, holds that discrimination in the form of a failure to reasonably accommodate is actionable only if that failure negatively impacts the employee’s hiring, advancement, discharge, compensation, training, and other terms, condition, and privileges of employment. So, the EEOC has to show that a person suffered an adverse employment action as a result of the failure to accommodate. The EEOC has not done that, with the exception of those put on unpaid leave.
  2. Triggering an employer’s duty to provide a reasonable accommodation means the employee makes a specific demand for an accommodation and demonstrates that such an accommodation is reasonable.
  3. In failure to accommodate cases, the burden is on the employee to: 1) identify, at least in broad strokes, the limitations their mental or physical condition imposes; and 2) link their disability to their requested accommodation by explaining how the requested accommodation alleviates the workplace challenges posed by his specific disability.
  4. Employees must give employers enough information to respond effectively to an accommodation request.
  5. At a minimum, an employee must request some change or adjustment in the workplace and must link that request to his disability, rather than simply presenting the request in a vacuum.
  6. A person telling the employer that they have to speak to their doctor before agreeing to stopping the medication is not an accommodation request, absent a generous interpretation, and even so there was no evidence how the accommodation request would address the limitation presented by his disabilities.
  7. The EEOC has failed to sufficiently show that the four remaining claimants made specific demands for an accommodation and demonstrated that such accommodations were reasonable to alleviate the workplace challenges posed by their specific disabilities.

 

VII

Disparate Impact or Disparate Treatment

 

  1. The EEOC’s screen out claims are disparate impact claims.
  2. Both disparate impact and disparate treatment are permissible theories under the ADA.
  3. Courts must carefully distinguish between disparate treatment claims and disparate impact claims because the factual issues and the character of the evidence presented differ when the claims are based upon a facially neutral employment policy having a discriminatory impact on protected classes.
  4. The EEOC specifically alleges that the policies have the effect of discrimination on the basis of disability and the effect of depriving a class of qualified individuals with disabilities from equal employment opportunities, etc. So, it appears that the EEOC is alleging that the employer’s impermissible screening standard claims are disparate impact claims given its emphasis on the effect of the employer’s policy on people with disabilities.
  5. In order to succeed on a disparate impact claim, a plaintiff has to show that a facially neutral employment practice has a significant discriminatory impact on a single group of people.
  6. Further, establishing a prima facie case of disparate impact means a plaintiff have to provide comparative evidence showing that a policy has a disparate impact on people with disabilities.
  7. The EEOC did not present any statistical evidence that the drug policy had a disparate impact on people with disabilities.
  8. The EEOC cannot show that anybody was actually screened out from their job because it is undisputed that none of the claimants were terminated or that the employer failed to hire any of them as a result of the drug policy.
  9. To the extent that the EEOC argued that an ultimate employment action is not required in order to sustain a screen out claim, it did not like the fact cite any binding authority to support that argument or any factually similar persuasive authority.

 

VIII

Whether The Interference Claims Can Go Forward

 

  1. Employer failed to acknowledge that an ADA interference claim is a separate cause of action distinct from an ADA discrimination claim.
  2. The 11th Circuit has not had the occasion yet to explain the proper standard for evaluating ADA interference claim. Some courts have looked to the Fair Housing Act. The court also mentions Frakes, which we discussed here, as another possibility for how to prove up interference claims. The employer’s attorneys had ample time to address the interference claim and simply did not do it, so summary judgment is not warranted.

 

 

IX

Thoughts/Takeaways.

 

  1. The DOJ has made it quite clear that forcing people to stop taking their medication in order to participate in programs and activities of governmental entities violates the ADA. See this blog entry. I see no reasons why those same arguments would not hold in the title I context. Of course, the EEOC is a different thing than the DOJ. However, the DOJ does have the authority over cases involving employees of nonfederal governmental entities, which means that non federal governmental entities would be wise not to emulate the policies of Army Sustainment. The EEOC’s authority is only over private entities. Still, if you are representing an employee of a nonfederal governmental entity, you would still be wise to file with the EEOC first even though it would be DOJ that would ultimately prosecute the claim down the road if it comes to that.
  2. Not every state is a deferral state. For example, I know Alabama, Georgia, and Missouri are not deferral states. In those states, the amount of time to bring in EEOC charge is going to be shorter.
  3. Underlying this case is just how significant the question of whether the disability is what is being accommodated v. the essential functions of the job being accommodated. Those two concepts lead you to very different places in a case like this. Those two concepts always lead you to different places with respect to service animals in the workplace. The 11th Circuit, as we discussed here, is making it pretty clear that it is the disability being accommodated and not the job’s essential functions. If the EEOC appeals this case, they may want to bring up this distinction more explicitly.
  4. The trend is most definitely that failure to accommodate claims are discrete acts. That said, we did discuss a case talking about a repeated violation doctrine. See this blog entry.
  5. A hot debate, as we have previously discussed, exists as to whether failure to accommodate claims require an adverse action. There are cases saying that failure to accommodate claims do not need an adverse action, such as we discussed here. There are also cases saying that a failure to accommodate it by itself an adverse action. This case seems to demand an adverse employment action on top of the failure to accommodate. There is a split among the Circuits on the question of whether a failure to accommodate claim requires an adverse action. The Supreme Court will have to step in eventually to figure that out. I am not going to hazard a guess as to what the Supreme Court will do on that.
  6. Interesting, that the court postulates that the test for an adverse employment action is whether a reasonable person in the plaintiff’s position would view the employment action and question as adverse. That raises two points. First, we need more judges with disabilities on the bench. Second, if you are a trial attorney, especially on the plaintiff’s side, trying to get jurors with a disability or who associate with a person with a disability is very important. I would postulate that just about everybody with a disability who is taking these medications would view the request to stop taking their medications, which they absolutely need to take in order to mitigate the effects of their disability, as an adverse action. So, adverse action is very much in the eyes of the beholder. Finally, one wonders if saying that an adverse action does not exist by requesting a person to stop taking medication that they use to compensate for their disability does not violate the amendments to the ADA itself, which specifically says that mitigating measures, excepting eyeglasses, are not to be considered with respect to whether the person has a disability. In essence, the employer is saying that it gets to decide what mitigating measures a person with a disability can use. It simply doesn’t work that way. Someone else deciding on what mitigating measures work best for the person with the disability and not the person with the disability deciding that is ableism.
  7. This case nicely illustrates how a regarded as claim can be use without having to rely on the other prongs even where a person would satisfy the other two prongs.
  8. An absolutely horrible idea for an employer to treat prescription medications as a proxy for unsafe work performance. You are much better off doing an individualized analysis to figure out whether the person can perform the essential functions of the job with or without their medication and without being a direct threat to self or others (direct threat and safety are not the same concepts at all. See this blog entry for discussion of direct threat, which we have discussed many multiples of times.
  9. In a case we discussed here, the Fifth Circuit overturned decades of decisions and held that an ultimate employment action is not necessary in a title VII case. The court does not mention this decision perhaps because the Fifth Circuit decision and the “printing,” of this decision crossed in terms of their time frames. The arguments made by the Fifth Circuit certainly carry over to failure to accommodate claims.
  10. The Supreme Court has a couple of cases before it this term that will be assessing just what is an adverse action in the title VII arena. Those decisions may have wide carryover to failure to accommodate claims and bear watching.
  11. Very unclear as to how it shakes out with respect to the burden of proof in failure to accommodate claims as it blurs into the affirmative defense of undue hardship.
  12. We have discussed before it just how much notice a person have to get with respect to that notice being considered a reasonable accommodation request. See this blog entry for example. Clearly, how much notice is required is going to vary from jurisdiction to jurisdiction and even among judge to judge.
  13. If you are alleging a screen out claim, be prepared for the court thinking that it is a disparate impact claim. Accordingly, be prepared to present evidence of how that policy screens out people with disabilities. In a case such as this one, I don’t think it would be that hard because by definition anybody that is screened out is a person with a disability. Further, the people who are not on prescriptions are not screened out by the policy.
  14. Interference is simply something that is underutilized. Both plaintiff side and defense side lawyers should get familiar with it. It appears that the employer’s lawyers unfamiliarity with interference claims cost the employer the ability to get summary judgment on that issue in this case.
  15. It is absolutely correct that Beasley says that the failure to accommodate claim requires an adverse action. However, a close reading of that case reveals that it come very close to the proposition that the failure to accommodate by itself is an adverse action. This case seems to take a much more narrow view of that. If this decision is appealed, I would expect the EEOC to address this issue of just what kind of an adverse action, if any, is required in failure to accommodate cases.
  16. On February 29, 2024, the EEOC settled the lawsuit. The EEOC press release can be found here.

Before getting started on the blog entry for the day, I do want to take this opportunity to wish those who celebrated the Jewish new year, a happy new year.

 

I spent last Friday reading the proposed §504 regulations, which runs a little over three hundred pages, put out by the U.S. Department of Health and Human Services. The regulations have not been updated in decades and this is their update. The proposed regulations can be found here. Comments on the regulations are due November 13, 2023. Due to the way administrative law works, getting the proposed regulation changed means getting in comments now. It is very difficult to affect regulations once they are finalized.

 

If the proposed regulations wind up resembling these proposed regulations, it will revolutionize the way people with disabilities are dealt with by entities covered by U.S. Department of Health and Human Services. In particular, the regulations will fundamentally change how people with disabilities are treated in at least the following areas: medical treatment; tools used to decide who gets what services when it comes to medical care (value assessment methods); child welfare programs and activities; web and mobile accessibility (basically matching up with title II proposed regulations from DOJ); ability to use medical diagnostic equipment; ability to be served in the most integrated setting; adoption and foster care; service animals (basically matching up with DOJ title II and title III regulations); effective communications (basically matching up with DOJ’s title II regulations); and building design. As usual, the blog entry is divided into categories, and they are: proposed regulation; call for comments; and thoughts/takeaways. Of course, the reader is free to concentrate on any or all of the categories.

 

I

Proposed Regulations

 

  1. The definition of disability is to be construed broadly. This area of the proposed regulations, including its rules of construction, matches up pretty well with the EEOC approach to disability in their title I regulations.
  2. “Handicap,” is history and “disability,” is used instead.
  3. Very bizarre how the regulations say that regarded as prong should be the first option for people with disabilities. I find it bizarre because a person claiming regarded as is not entitled to reasonable accommodations/modifications, which even the proposed regulation notes.
  4. In one section of the definition section of the proposed regulation, the term “emotional or mental illness,” appears. In the very next section, only the term “emotional illness,” appears. Both terms are stigmatizing. A person with mental health conditions might be better. Many people with disabilities having mental health conditions are now gravitating to the term, “neurodivergent.”
  5. Certain physical impairments are per se disabilities under the ADA and those include: deafness; blindness, intellectual disabilities; mobility impairments; autism spectrum disorder; cancer; cerebral palsy; diabetes; epilepsy; muscular dystrophy; multiple sclerosis; HIV; major depressive disorder; bipolar disorder; posttraumatic stress disorder; traumatic brain injury; obsessive-compulsive disorder; and schizophrenia.
  6. The outcomes a person can achieve have nothing to do with whether they have a disability (an example I thought of is in the medical standardized testing world, testing entities have claimed that a high GPA means a person is not entitled to accommodations for taking the test).
  7. Record of disability is to be defined broadly.
  8. In the regarded as prong of the definition of a disability, transitory and minor is an objective standard.
  9. HHS makes it clear that the exclusion in the ADA for gender identity disorders does not exclude an individual with gender dysphoria. As readers of my blog know, this is a hotly debated topic.
  10. A person who is currently illegally using drugs means illegal use of drugs occurring recently enough to justify a reasonable belief that a person’s drug use is current or that continuing use is a real and ongoing problem. As we discussed here, the case law in this area is incredibly complicated.
  11. The proposed regulations adopt title II of the ADA final regulations on how a qualified person with a disability is defined. With respect to postsecondary and career and technical education services, qualified looks to academic and technical requirements.
  12. As the proposed regulation notes, in many cases all operations of the entity must not discriminate against a person with a disability. The language is taken right out of 29 U.S.C. §794, §504 of the Rehabilitation Act, here.
  13. For entities taking HHS funds and an employment situation is involved, the applicable rules are title I of the ADA. You see a similar approach with respect to §501 of the Rehabilitation Act, which applies to federal employees.
  14. With respect to existing facilities, the proposed regulations take the DOJ title II final implementing regulations approach by focusing on program accessibility.
  15. Architectural accessibility means using applicable ADAAG guidelines and depends upon when the alteration happens (same approach it DOJ regulation). For what is in alteration, see this blog entry.
  16. With respect to secondary and adult education, a recipient of HHS funds providing childcare, preschool, elementary and secondary, or adult education may not, on the basis of disability, exclude qualified individuals with disabilities and must take into account the needs of such persons in determining the aids, benefits, or services to be provided. I find this provision very confusing because §504 uses a causation standard of “solely by reason of.” After Bostock, which we discussed here, “solely by reason of,” must have a very different meaning than “because of,” “by reason of,” and “on the basis of.” Same concern with the nondiscrimination provision against an individual with a substance or alcohol use disorder, which uses the term, “because of.” Also, same concern with the nondiscrimination provision in medical treatment, which uses the term, “on the basis of.”
  17. In the medical treatment section of the proposed regulation, several things, in addition to the causation concern noted above, are worth noting: 1) An HHS recipient may not deny or limit medical treatment to a qualified individual with a disability when the denial is based on (see causation concern above): A) bias or stereotypes about a patient’s disability; B) judgment that the individual will be a burden on others due to the disability, including, but not limited to caregivers, family, or society; or C) a belief that the life of a person with a disability has lesser value than the life of a person without a disability, or that life with a disability is not worth living; 2) a recipient may not deny or limit clinically appropriate treatment to a person with a disability if that treatment would be offered to a similarly situated individual without an underlying disability; 3) the recipient may not, on the basis of disability (see above concerns with causation), provide a medical treatment to an individual with the disability where it would not provide the same treatment to an individual without a disability unless the disability impacts the effectiveness, or ease of administration of the treatment itself, or has a medical effect on the condition to which the treatment is directed.
  18. In exercising professional judgment to deny certain treatment, an individualized analysis is necessary and must be based upon current medical knowledge or the best available objective evidence that such medical treatment is not clinically appropriate for a particular individual. (HHS is essentially incorporating how direct threat is determined per Supreme Court opinions and DOJ/EEOC regulations into denial of treatment decisions).
  19. Value assessment methods cannot screen out persons with disabilities. This particular section also has the same issue with causation when it uses the term, “on the basis of disability.”
  20. With respect to children, parents, caregivers, foster parents, and prospective parents and the child welfare system, causation is, “on the basis of disability.” Again, as noted numerous times above, §504 in 29 U.S.C. §794 doesn’t work that way, i.e. causation is, “solely by reason of.”
  21. With respect to children, parents, caregivers, foster parents, and prospective parents and the child welfare system, discrimination includes: 1) decision based on speculation, stereotypes, or generalizations that a parent, caregiver, foster parent, or prospective parent, because of (as mentioned above, “because of,” is not the same as, “solely by reason of),” the disability, cannot safely care for a child; and 2) decision based upon speculation, stereotypes, or generalizations about a child with a disability. You also can’t use IQ alone as a basis for discriminatory decisions.
  22. Interestingly enough, in the general prohibitions against discrimination section, causation does match up with §504 statutory terms. However, in the very next section when it comes to a recipient directly or through contractual, licensing, or other arrangements engaging in various discriminatory practices, the term used is, “on the basis of disability.”
  23. Much of the general requirements section matches up with title II DOJ final implementing regulations pretty closely. Of particular note, are the screen out provisions and the adoption of a title II final implementing regulation that is very significant (I certainly have found it significant in my practice). In particular, the proposed regulations make it discriminatory to aid or perpetuate discrimination against a qualified individual with a disability by providing significant assistance to an agency, organization, or person that discriminates on the basis of disability in providing any aid, benefit, or service to beneficiaries of the recipient’s program.
  24. Surcharges are out.
  25. Discrimination is prohibited against people who associate with a person with a disability.
  26. Legitimate safety requirements are okay if necessary for the safe operation of the programs or activities. However, those safety requirements must be based on actual risks and not on mere speculation, stereotypes, or generalizations about individuals with disabilities.
  27. Perfectly okay to discriminate against an individual currently illegally using drugs. What current user means is complicated.
  28. There is an inconsistency between HHS’s discussion of its proposed regulations and the actual proposed regulation when it comes to service animals. In the discussion, they talk about only two questions. However, in the proposed regulation itself, they clearly focus on two inquiries. Inquiries and questions are not at all the same thing. The actual proposed regulation dealing with service animals matches up precisely with the DOJ final implementing regulations on service animals in title II and title III, including the way it deals with miniature horses.
  29. Power chairs can go anywhere but there are factors to consider when determining whether power chairs can be restricted where they go.
  30. Direct threat matches up with EEOC, DOJ, and Supreme Court opinions.
  31. Programs or activities receiving federal financial assistance from HHS must provide services in the most integrated environment appropriate to the needs of a qualified person with a disability. Particular violations of the integration proposed regulations include: A) establishing or applying policies or practices that limit or condition individuals with disabilities access to the most integrated setting appropriate to their needs; B) providing greater benefits or benefits under more favorable terms in segregated setting than in integrated settings; C) establishing or applying more restrictive rules and requirements for individuals with disabilities in integrated settings then for individuals with disabilities in segregated settings; and D) failure to provide community-based services resulting in institutionalization or serious risk of institutionalization. That includes but is not limited to: planning, service design, funding, or service implementation practices that result in institutionalization or serious risk of institutionalization. Individuals with disabilities need not wait until the harm of institutionalization or segregation occurs in order to assert the right to avoid unnecessary segregation. See also this blog entry.
  32. With respect to effective communication, HHS adopts DOJ’s title II effective communication rules. Of particular importance, is that HHS adopts the primary consideration rule of title II.
  33. With respect to web and mobile phone accessibility, HHS adopts the DOJ proposed regulation on title II of the ADA, which we discussed here.
  34. Medical diagnostic equipment must be accessible to people with disabilities. I know people who have been working on this issue for years. It is a real game changer for persons with disabilities.
  35. With respect to medical diagnostic equipment, no qualified individual with a disability shall, on the basis of disability (causation concerns again), be excluded from participation in, be denied the benefits of the programs or activities of recipient offered through or with the use of medical diagnostic equipment because the recipient’s medical diagnostic equipment is not readily accessible to or usable by persons with disabilities.
  36. Medical diagnostic equipment purchased, leased, or otherwise acquired after 60 days after the final rule has to meet the standard for accessible medical diagnostic equipment unless and until the recipient satisfies the scoping requirements.
  37. By scoping requirements, at least 10% of the total number of medical diagnostic equipment, but not fewer than one unit, of the type of equipment in use must meet the standards for accessible medical diagnostic equipment. If the provider focuses on mobility, then the number rises to 20%. Within two years after the final rule gets published, recipients must purchase, lease, or otherwise acquire at least one examination table meeting the standard for accessible medical diagnostic equipment if the recipient uses at least one examination table. They also must acquire at least one weight scale meeting the standard for accessible medical diagnostic equipment if the recipient uses at least one weight scale. With respect to medical diagnostic equipment, HHS adopts a program accessibility approach to existing medical diagnostic equipment.
  38. Throughout the proposed regulation, if the recipient decided to argue a fundamental alteration or an undue burden, they have to do everything short of that. Also, HHS adopts the DOJ title II final implementing regulations requiring certification from the head of a recipient or their designee after considering all resources available for use in the funding and operation of the program or activity and accompanied by a written statement of the reasons for reaching that conclusion.
  39. U.S. Access Board is coming up with regulation dealing with kiosks and HHS will defer to them.

 

II

Comments Requested

 

HHS is asking for comments throughout its proposed regulations on such topics as:

 

 

  1. What is the best way of articulating distinctions factoring in disabilities into treatment v. not providing treatment because of the disability? In other words, what is the appropriate balance between prohibiting discriminatory conduct and assuring legitimate professional judgment?
  2. Examples of discriminatory provision of medical treatment to people with disabilities (I would expect a flood of comments on this one).
  3. What are the risk and benefits of the proposed regulation?
  4. The term “medical treatment,” broad enough to encompass the range of services covered by the nondiscrimination provision?
  5. How are value assessment methods, including those not discussed in the proposed regulation, being used to discriminate against people with disabilities?
  6. Does the value assessment method nondiscrimination provision have a chilling effect on academic research?
  7. Is prohibited activities in child welfare area a complete list? How will the nondiscrimination provisions be implemented by the agencies?
  8. Many questions asking for confirmation about the web accessibility approach matching DOJ’s title II proposed regulations (WCAG 2.1 as the standard, time for compliance, education context exceptions, how entities use social media, how to measure compliance, etc).
  9. Whether and how to apply existing scoping requirements for patient or resident sleeping room or parking spaces in certain medical facilities to medical diagnostic equipment.
  10. Are there any meaningful differences between patient or resident sleeping rooms, accessible parking, and medical diagnostic equipment that HHS should consider when finalizing scoping requirements?
  11. Is the scoping requirement of 20% sufficient to meet the needs of persons with disabilities since more patients with mobility disabilities may need accessible medical diagnostic equipment than would be to accessible parking?
  12. With respect to medical diagnostic equipment, does the program accessibility approach makes sense? Should additional requirements be added? How easy is it for medical diagnostic equipment to be moved or otherwise share between clinics or departments? Two years a sufficient amount of time for compliance?
  13. What other methods exist for recipients to make their programs and activities readily accessible and usable by people with disabilities in lieu of purchasing, leasing, or otherwise acquiring accessible medical diagnostic equipment.
  14. What are the current leasing practices with respect to medical diagnostic equipment?
  15. Should the rule be expanded to medical equipment that is not used for diagnostic purposes? (Expect people with disabilities to weigh in yes on this question). If so, what technical standards should apply? Are there particular types of non-diagnostic medical equipment that should or should not be covered by a final rule?

 

 

III

Thoughts/Takeaways

 

  1. Individualized analysis is critical.
  2. Stay away from speculation, stereotypes, and generalizations. Rely on objective evidence instead.
  3. Don’t forget about the interactive process.
  4. Focus on the definition of a disability rather than on any diagnosis.
  5. The confusion in the proposed regulations over causation definitely needs to be clarified because “solely by reason of,” “by reason of,” “on the basis of,” and “because of,” are not equivalent to each other. That is, while on the basis of, “because of,” “by reason of,” may mean the same thing, “solely by reason of,” definitely means something different, as discussed here.
  6. Healthcare professionals will need to undergo substantial retraining with respect to the worth of individuals with disabilities and how curing or fixing the disability is not necessarily the name of the game when it comes to treating people with disabilities.
  7. Associational discrimination is a thing under these proposed regulations.
  8. Current user of the illegal use of drugs is incredibly complicated.
  9. With respect to service animals, it is two inquiries and not two questions. HHS really needs to avoid the unnecessary confusion in its final rule that presently exists in the proposed regulation and its discussion of same.
  10. Undue burden requires a certification from the entity.
  11. Expect lots and lots of comments to come in from industry groups and persons with disabilities on the proposed regulation.
  12. The proposed regulations certainly would be covered by the major question doctrine, which we discussed here. Is the grant of authority for the regulations sufficient to allow HHS to come up with such game changing regulations?
  13. Criteria that screen out people with disabilities, including any technical standards, need to be reviewed very closely.

Yesterday was 9/11 and certainly thinking of everyone.  Also, I appreciate everyone bearing with me on my two week hiatus while my wife and I were abroad. We came back Friday and back to the grind now.

 

Today’s case is an unpublished decision. Lee v. L3Harris Technologies, Inc., from the Ninth Circuit decided August 18, 2023, which can be found here. It asks the question of what happens when you terminate someone for conduct related to the disability and do not factor that into the analysis. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning summary judgment not warranted on disability discrimination claim; court’s reasoning summary judgment was warranted on retaliation claim; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts (Taken from the Lower Court Opinion and Also Summarized as Well)

 

On March 13, 2019, Lee, the plaintiff, participated in a meeting with the human resources representative where they discussed that he was diagnosed with PTSD and that he did not need accommodation to perform his job.

 

On November 6, 2019, Igne witnessed Lee pressure-washing while wearing shorts and asked Lee to change into rain pants. [L3Harris’s CSOF ¶ 16; Lee’s CSOF ¶ 16.] Because Lee could not hear Igne’s requests due to the pressure washer’s noise, Igne attempted to get Lee’s attention by yelling and honking a vehicle’s horn. [Lee Depo. Trans. at 30-31; L3Harris’s CSOF, Decl. of Lindsay Haen (“Haen Decl.”),[3] Exh. O (Lee’s written statement to Martin regarding the 11/6/19 events, dated 11/7/19).] A coworker then walked over to Lee and gave him a pair of rubber rain pants. [Lee Depo. Trans. at 24.]

Later during the day of the pressure-washing incident, Lee went to the office where Igne was. According to Lee, he did not yell at Igne, but he admits he swore at Igne because Igne swore at him first. Lee states he told Igne that, if he had to wear his personal protective equipment (“PPE”), then Igne needed to wear his. Lee then told Igne that, if he did not bring his PPE the following Monday, then he would turn Igne in. According to Lee, it was at this point when Igne swore at Lee and Lee swore back at Igne. [Id. at 39-40.] They exchanged swear words “twice, maybe three times,” then Lee walked away. [Id. at 40.] Lee contends in his deposition testimony that he did not yell at Igne. [Id. at 39.] But, in his written statement to Martin the day after the incident, Lee wrote that he yelled at Igne. [Haen Decl., Exh. O (“that’s when I started yelling and swearing at him”).]

The next day, Igne submitted a written complaint to Martin. [L3Harris’s CSOF, Decl. of Rodney Martin (“Martin Decl.”) ¶ 4.] Martin states Igne expressed to him that he “felt threatened by” Lee and “did not feel comfortable working with [Lee] after” their interaction. [Id.] Martin investigated the incident by speaking with Lee and the other workers present and took statements from those involved. [Id.] Although Lee and Igne “had somewhat differing versions of the interaction,” Martin states “the statements by [Lee’s] co-workers generally supported Mr. Igne’s version of events and that Mr. Lee was swearing, angry and aggressive towards Mr. Igne.” [Id.]

One of Lee’s coworkers, David Hesapene (“Hesapene”), submitted a written statement to Martin the day after the incident.[4] [Haen Decl., Exh. P (Hesapene’s written statement to Martin regarding the 11/6/19 events, signed 11/7/19).] There, Hesapene states that, around 5:45 p.m., he heard Lee “going off, yelling at [Igne].” [Id.] Hesapene heard Lee “swearing the F word at [Igne] and [Igne] yelled back in defense.” [Id.] Although Hesapene “couldn’t hear everything that was being said clearly,” he states Lee “was extremely loud and angry and not acting in a civil manner.” [Id.] The day after the incident, Lee said to Hesapene, “`I don’t care if I going to lose my job, I just going to punch [Igne] through his face.'”[5] [Id.] After Hesapene told Lee, “I thought you guys settled this years ago,” Lee said “`F—- [Martin], F—- [Igne], nobody can touch me, not [Martin], not [Igne] or HR.'” [Id.] However, Hesapene testified in his deposition that he did not believe Lee was going to punch Igne. [Lee’s CSOF, Decl. of Joseph T. Rosenbaum (“Rosenbaum Decl.”), Exh. B (excerpts of trans. of 9/22/21 Hesapene depo.) (“Hesapene Depo. Trans.”) at 44.[6]]

Another coworker, Mark Vegas (“Vegas”), also submitted a written statement to Martin the day after the incident. [L3Harris’s CSOF, Haen Decl., Exh. Q (Vegas’s written statement to Martin regarding the 11/6/19 events, dated 11/7/2019).] Vegas states that, around 5:45 p.m., he could hear Lee “explode in anger with [Igne] about something to do with having to wear pants. [Lee’s] voice was very loud as he yelled and swore at [Igne] and seemed to get louder. . . .” [Id.] Vegas also states “[t]here was such a flurry of words coming out of [Lee’s] mouth that it was difficult to remember everything [Lee] was saying plus [he] was in another office with the door closed but [he] could still hear [Lee] yelling.” [Id.] The next day, Vegas heard Lee “bragging in the shop out loud that [Igne] tried and he cannot touch me, [Martin] cannot touch me and HR cannot touch me.” [Id.]

The last coworker present during the incident, Gilbert Castro (“Castro”), also wrote a statement to Martin. [Haen Decl., Exh. R (Castro’s written statement, dated 11/7/19).] Castro “heard [Lee] yelling at [Igne] in an angry tone” and “swearing.” [Id. at PageID #: 530.] Although Castro “could not hear all the details that were being said because [he] was in another room and the office door was closed[,]” he “could tell that [Lee] was very angry and was very loud.” [Id. at PageID#: 530-31.]

Martin states that, during his investigation, Lee’s coworkers expressed their concerns about Lee’s “volatile conduct,” and that they were concerned Lee “was a loose cannon and they did not know when [Lee] was going to snap because of how angry he would become about little things.” [Martin Decl. ¶ 5] However, Hesapene testified in his deposition that he did not believe Lee’s aggressive behavior created a hostile work environment for him, Igne, Martin, or in general. [Hesapene Depo. Trans. at 39-41.] Castro testified similarly. [Rosenbaum Decl., Exh. A (excerpts of trans. of 9/22/21 depo. of Castro) (“Castro Depo. Trans.”) at 63.[7]]

A subsequent meeting with HR led to Lee saying that his supervisor had been stealing gas. That investigation did not lead to a confirmation of those charges but did reveal how the relationship between Lee and his supervisor was beyond repair.

When Lee was terminated, he eventually brought suit alleging that he was terminated on the basis of his PTSD and was retaliated against for reporting his supervisor’s alleged misconduct.

 

II

Court’s Reasoning Summary Judgment on the Disability Discrimination Claim Was Not Warranted

  1. Establishing a prima facie case means showing: 1) plaintiff is disabled; 2) plaintiff is qualified to hold his job if provided reasonable accommodation; and 3) plaintiff suffered an adverse employment action because of his disability.
  2. Lee supplied competent evidence that he had been employed for 26 years in various positions without performance issues by U.S. Navy contractors at the Pacific Missile Range facility.
  3. A reasonable trier of fact could find that the threatening language used by Lee with reference to his supervisor in a conversation with a coworker did not constitute a serious and credible threat of violence. Further, the defendant did not point to any other undisputed evidence requiring a rational trier of fact to find in its favor.
  4. Lee’s receipt of disability benefits from the Department of Veterans Affairs is not inconsistent with him being qualified vis-à-vis the ADA. Further, nothing he stated in connection with his benefits application to the Veterans Administration is irreconcilable with his contention that he is qualified to do his job per the ADA.
  5. A trier of fact could reasonably conclude that the concerns leading to Lee’s employment termination was based upon his PTSD.
  6. Conduct resulting from a disability is considered to be part of the disability rather than a separate basis for termination. A rational trier of fact could conclude that Lee’s conduct during the November incident resulted from his PTSD.
  7. A reasonable trier of fact could find that the defendant’s evaluation of the November 2019 incident was controlled by stereotypical thinking about persons with PTSD.
  8. Since the decision to fire Lee was made in January of 2020, the temporal sequence of events is consistent with a rational inference of causation.
  9. The defendant was aware of Lee’s PTSD, and his PTSD was mentioned prominently in an internal communication regarding whether to take disciplinary action against him after the November 2019 incident. Given conflicting inferences, a reasonable trier of fact could find that the defendant’s decision to terminate Lee based upon the November incident was pretextual.

III

Court’s Reasoning Summary Judgment Was Properly Granted on the Retaliation Claim

  1. Since the defendant had already begun its investigation into the November 9, 2019 incident by the time Lee had already made his report, no reasonable trier of fact could conclude that the investigation was undertaken in retaliation for the report. Further, plaintiff did not point to any evidence supporting a reasonable inference that his report of the alleged gas stealing was what caused him to be fired, outside of arguments he made about the timing of the report involving his supervisor.

IV

Thoughts/Takeaways

  1. Big mistake to stereotype disability diagnosis at any stage of the employment process.
  2. The interactive process can go a long way towards dispelling any unconscious or conscious bias with respect to disability diagnosis.
  3. Early disclosure of disability by the employee is always better.
  4. Employees with disabilities are in a bit of a box. If they don’t disclose, they do not get the protections of the ADA if they need accommodations. On the other hand, evidence exists that if they do disclose, the worksite becomes much more uncomfortable to work in.
  5. As to what goes on in the mind of a person with a disability in deciding to disclose, see this Federal Bar Association blog entry.
  6. As we discussed here, a disability does not excuse bad conduct. However, this decision says that conduct relating from a disability is part of the disability rather than a separate basis for termination. So, if disability related conduct is involved, get with legal counsel to thoroughly review the record to see how the separation between the disability related conduct and workplace conduct rules pan out in a particular circumstance. Also, different jurisdictions may view differently just how much mileage a plaintiff can get from saying that conduct resulting from the disability is considered part of the disability rather than a separate basis for termination.
  7. We discussed here for example, how filing for disability benefit does not necessarily lead to a not qualified per the ADA finding. As the court notes in our case of the day, what is said in those applications can be very important. Further, failure of an attorney to understand just how important what is said in the application is and to advise the client on the possible consequences of filing for disability benefits, may be legal malpractice, as we discussed here.
  8. The decision is unpublished, so mileage on this case may vary.

Before getting started on the blog entry of the day, a couple of housekeeping matters in order. First, congratulations to the women of Spain for winning the World Cup. Second, my wife and I will be taking a very special trip abroad starting August 29 and returning September 8. So, this will be the last blog entry until the week of September 11.

 

The case of the day, Hamilton v. Dallas County, here, is actually not an ADA case at all. Rather, it is an en banc decision from the Fifth Circuit talking about what is an adverse action for purposes of title VII. The Fifth Circuit throws out its prior jurisprudence saying that an adverse action could only be an ultimate employment decision and then adopts a different test. The decision has implications for the question of whether a failure to accommodate is an adverse action, which is why I am blogging on this case. As usual, the blog entry is divided into categories and they are: majority opinion that ultimate employment decision is necessary for an adverse action is not good law; Judge Ho concurring opinion; Judge Jones concurring in the judgment only opinion; and thought/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

The Dallas County Sheriff’s Department gives its detention service officer two days off each week. The department uses a sex-based policy to determine the two days an officer can pick. Only men can select the weekends off-women cannot do that. Instead, female officers can pick either two weekdays off or one weekend day plus one weekday. Bottom line: female officers never get a full weekend off.

 

Nine female detention service officer sued alleging that this policy violate title VII prohibition against sex discrimination. A panel of the Fifth Circuit held that its prior case law demanded an ultimate employment decision before an adverse action could be found. However, it also noted that it had severe reservations with that line of cases and invited the court as a whole to revisit that line of cases en banc. The 11th Circuit agreed to do so, and in this opinion they overturn that prior line of cases.

 

II

Majority Opinion That Ultimate Employment Decision Is Necessary for an Adverse Action Is Not Good Law

 

  1. 42 U.S.C. §2000e-2(a) makes it an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against an individual with respect to his compensation, terms, condition, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.
  2. For decades in the Fifth Circuit, disparate treatment liability was limited to ultimate employment decisions.
  3. The Fifth Circuit decision setting forth an ultimate employment decision rule was actually based upon a misinterpretation of a prior Fourth Circuit decision. Nevertheless, the ultimate employment decision line of cases persisted for decades.
  4. Nowhere in title VII does it say implicitly or explicitly that employment discrimination of lawful is limited to non ultimate employment decisions.
  5. While it is true that the statute prohibits discrimination in ultimate employment decisions, the statute also makes it unlawful for an employer to otherwise discriminate against an employee with respect to terms, condition, or privileges of employment.
  6. Restricting liability under the statute only to ultimate employment decisions renders the statute catchall provision superfluous, which is something the court will not do.
  7. Absent persuasive indication to the contrary, it must be presumed that Congress says exactly what it means and means what it says. Here, Congress did not say that title VII liability is solely limited to ultimate employment decisions.
  8. The Supreme Court confirmed this approach. The Supreme Court has held that an adverse employment action need only be a term, condition, or privilege of employment. Also, it has been clear that a title VII plaintiff may recover damages even for discrimination in the terms, condition, or privileges of employment not involving a discharge, loss of pay, or other concrete effect on their employment status.
  9. Title VII’s coverage is also not limited to economic or tangible discrimination because it covers not only terms and conditions in the narrow sense, but also evinces a congressional intent to strike at the entire range of disparate treatment of men and women in employment. That is, any benefits comprising the incidents of employment, or forming an aspect of that relationship between the employer and the employee falls within title VII’s ban on discrimination.
  10. No other United States Court of Appeals has taken such a narrow view of an adverse employment action.
  11. The ultimate employment doctrine standard lies on fatally flawed foundations and must be overturned.
  12. Adverse action is not a statutory term but rather a judicially created term. Adverse action is utilized as a shorthand for the statutory phrase, “compensation, terms, conditions, or privileges of employment.”
  13. To show an adverse employment action, a plaintiff need only allege facts plausibly showing discrimination in hiring, firing, compensation, or in the terms, condition, or privileges of their employment.
  14. Terms, conditions, or privileges of employment is a very broad phrase not limited to economic or tangible discrimination and covers more than terms and conditions in the narrow contractual sense.
  15. The days and hours that a person works are classic terms or conditions of employment. In fact, those details go to the very heart of the work for pay arrangement.
  16. The complaint’s allegations also support a plausible inference that the right to pick work shifts based on seniority is a privilege of employment within the county.
  17. A benefit that is part and parcel of the employment relationship may not be handed out in a discriminatory fashion.
  18. The county’s position that a shift change, without more, is not an adverse employment action simply doesn’t hold up for two reasons. First, the Supreme Court has said that title VII is not limited to economic or tangible discrimination. Second, to accept this line of thinking would render superfluous the key phrase “terms, conditions, or privileges,” as the very same section already prohibit discrimination with respect to an employee’s compensation.
  19. Title VII does not permit liability for de minimis workplace trifles. Even so, it is plausible that requiring female officer to work weekends but not male officers is a tangible, objective, and material instance of sex discrimination in the terms, conditions, or privileges of employment and is far more than de minimis. Same can be said for denying seniority privileges to female officers while allowing male officers to exercise theirs.
  20. The court leaves for another day the precise level of minimum workplace harm that a plaintiff must allege on top of showing discrimination in one’s terms, conditions, or privileges of employment. The court reiterates this in a footnote when it says that nothing in the opinion or in the citation to other opinions should be read to forecast the Fifth Circuit view on what level of materiality is required for an adverse action.

 

III

Judge Ho Concurring Opinion

 

  1. When circuit court precedent is erroneous, it shouldn’t matter if overturning that precedent leads to more questions. The precedent needs to be overturned regardless, which is exactly what the en banc decision does (only an en banc decision has the authority to overturn erroneous circuit precedent).
  2. To phrase it another way, fidelity to text sometimes requires overturning a precedent. Overturning precedent sometimes results in unanswered questions the court may need to address in future cases. However, that is exactly what courts are for and it is not a reason to ignore text. The Supreme Court did exactly this in both Groff v. DeJoy, which we discussed here, and in the recent affirmative-action decisions.

 

IV

Judge Jones Concurring in the Judgment Only Opinion

 

  1. The majority gets the result right but makes a mistake by not laying out what is an adverse action so that courts and others can have guidance. So, the majority essentially says that speeding is illegal but does not give a speed limit.
  2. The Supreme Court will resolve next term a Circuit Court split in a case asking similar questions as to what an adverse action is. So, it would have been more prudent to continue with the ultimate employment line of precedents until the Supreme Court comes down with a decision.
  3. A possible standard would be to say that actionable discrimination must entail a materially adverse change in working conditions when viewed objectively by a reasonable observer. Such a standard is supported by the provisions of §703(a)(1) and title VII cases dealing with hostile work environment, retaliation, and constructive discharge claims.
  4. Title VII does not effectuate a general civility code for the workplace. However, the majority opinion heads down that road because it has no baseline for discrimination based on terms or conditions of employment.

 

V

Thoughts/Takeaways

 

  1. It is hard to believe in 2023 that a county would have such a policy. Nevertheless, they do.
  2. We have previously discussed the emerging issue of terms, condition, or privileges of employment here for example.
  3. The ADA has very similar language to 42 U.S.C. §2000e-2(a), but it uses “on the basis of,” or “by reason of,” for causation. As we discussed here, causation has the same meaning despite the different terminology used in the statutes.
  4. More than de minimis can mean a lot of different things. For example, undue hardship/burden and fundamental alteration per the ADA. It also could mean what the Supreme Court talks about in Groff v. DeJoy, which we discussed here.
  5. A broad reading of what is an adverse action would certainly support the proposition that a failure to accommodate is an adverse action. Some circuit courts are already taking that position.
  6. Judge Jones is quite correct when she says that the Supreme Court next term will have two cases before it dealing with the adverse action question when it comes to title VII (a least one of them if not both-I would have to check-involved the question of transfer to another position).
  7. Judge Jones opinion lays out an idea that other courts, particularly the Supreme Court, might utilize as a standard.
  8. Judge Ho is also quite correct that the current Supreme Court doesn’t hesitate to overturn prior precedent it feels is erroneous regardless of what questions might arise when taking that approach.
  9. One wonders whether this case would not be appealed to the Supreme Court because the majority opinion sets forth such an amorphous standard. As a result, that arguably creates a Circuit Court split in courts that have a more concrete standard and take a narrower view of what an adverse action is.
  10. The cases before the Supreme Court next term as well as this one (one wonders if this case would not get folded into the other two cases perhaps), definitely bear watching because of the implications of the cases have on whether failure to accommodate requires an adverse action.

Today’s blog entry is a twofer with respect to proposed rules that have come down from two different agencies in the last week. The first is the proposed rule for the Pregnant Workers Fairness Act. The second is the proposed rule from the FCC concerning accessibility of videoconferencing platforms. The blog entry is divided into categories of the Pregnant Workers Fairness Act proposed rule and the FCC proposed rule on video conferencing accessibility. The blog entry is really short, so you will probably want to read the whole thing.

 

I

PWFA Proposed Rule

 

Robin Shea, here, in her blog does a fabulous job of discussing the PWFA proposed rule (the proposed rule itself goes 279 pages and can be found here). I do want to add a few thoughts/points of emphasis of my own, so here goes:

 

  1. A lot of the proposed rule resembles the ADA but not entirely. For example, the concept of undue hardship and the interactive process are the same. The concept of essential functions is the same to a point. The big difference is temporary waiver of essential functions is in play, which is not the case with the ADA.
  2. Any accommodation has to be the result of the interactive process. One wonders if the EEOC will not get more aggressive on this point when it comes to disability related accommodations.
  3. PWFA focuses on known limitation related to pregnancy, childbirth, or related medical conditions (a big list is given by the EEOC and it includes infertility for example). So “known limitation,” leads you to different places than the ADA with respect to the accommodation process. Proving up “known limitation,” so to speak is going to be much easier than proving up disability, which after the amendments to the ADA should not be all that hard but is still harder than proving up “known limitation.”
  4. In the ADA world, the prohibition on excessive documentation can be a bit ambiguous. The rules are more certain on the title I side, but less clear on the title II and title III side. The latter (title II and title III),  just having a prohibition on unnecessary medical inquiries in the applicable Technical Assistance Memorandum. The proposed rule for PWFA illustrates that the EEOC is going to be really serious about looking at situations where employers seek documentation to justify an accommodation per the Pregnant Workers Fairness Act. It is not going to be simple to defend any such cases. There are a few accommodations that must be automatically granted, i.e you can’t even seek documentation when those conditions are involved. With respect to other conditions, employers are going to want to be very very careful about when they seek documentation and to be sure that the scope of the documentation the employer seeks is very limited. One has to wonder if the EEOC won’t start looking at documentation requests for accommodations under the ADA in a similar manner. If I am on the plaintiff side, I would certainly be making that argument that disability related documentation for demonstrating the need for a reasonable accommodation should operate the same way as this proposed rule does when it comes to seeking further documentation.
  5. Very interesting about how the proposed rule says that there is no confidentiality requirement. However, that isn’t the end of the story. The ADA mandates that medical information be kept confidential. Since everyone covered by the Pregnant Workers Fairness Act is also covered by the ADA, the information that comes out in the accommodation process under the Pregnant Workers Fairness Act (which is necessarily medical information), must be kept confidential per the ADA.
  6. People have until October 10, 2023, to comment on the rule in the EEOC specifically asks for comments on a bunch of things related to the proposed rule.

 

II

FCC Proposed Rule and Video Conferencing Accessibility

 

  1. The FCC proposed rule can be found here.
  2. I use video conferencing platforms all the time. In particular, I use my Bluetooth technology as well as automatic speech recognition to effectively access the videoconferencing platform.
  3. The rule seems to suggest that the FCC wants to move away from dial in access to the ability to just use the platform with captioning. I sincerely hope they don’t do that because it would be a disaster for me as a deaf person functioning entirely in the hearing world with Bluetooth technology, lip reading, and advanced hearing aids. I really do need to be able to dial in and use my Bluetooth technology to effectively access video conferencing platforms.
  4. The other thing about the rule is that I didn’t see anything that said the ASR on must be the default option. Currently, it is for Google Meets and for Microsoft teams but is not for Zoom. I can’t tell you how many times Zoom not having the ASR on as the default option has caused me problems.
  5. People have until September 6, 2023, to comment on the rule, and the FCC specifically asks for comments on a bunch of things related to the proposed rule.

Last week, DOJ came out with a proposed rule for title II entities with respect to mobile apps and their Internet sites, here. Certainly big news, so we are going to talk about it. As usual, the blog entry is divided into categories and they are: purpose of proposed rule, need for the rule, and benefits of the rule; the text of the proposed rule; and 60+ questions. Please note that my thoughts/takeaways/questions appear underneath the applicable section of the proposed rule.

 

I

Purpose of Proposed Rule, Need for the Rule, and Benefits of the Rule

 

  1. DOJ since 1996, consistently has taken the viewpoint that title II of the ADA applies to all services, programs, and activities of the public entities, including those provided by the way of the web.
  2. Governmental entities use apps and websites all the time and members of the public frequently access governmental entities through their website and through associated apps in a myriad of different ways. Therefore, it is critical to ensure that people with disabilities can access web content and mobile apps quickly, easily, independently, and equally (the proposed rule contains numerous examples of the ways that people access governmental entities by way of the web and mobile apps).
  3. While many public health mandates addressing Covid-19 are no longer in place, durable changes to State and local governmental entities operations and public preferences necessitating greater access online services, program, and activities remain and are likely to be permanent.
  4. Millions of individuals in the United States have disabilities affecting their use of the web and mobile apps. Many of those individuals use assistive technology, such as speech recognition and screen readers, to enable them to navigate websites or access information contained on those websites.
  5. Voluntary compliance with the web content accessibility guidelines has not resulted in equal access for people with disabilities.
  6. DOJ and other federal agencies have taken enforcement action against public entities regarding the lack of access for people with disabilities to their websites.
  7. Web Content Accessibility Guidelines 2.0 has been consistently used by DOJ as the basis for settlements.
  8. A 2021 study found that 71% of county websites did not conform to Web Content Accessibility Guidelines 2.0 and the remaining 29% only partially conformed to the standards. Given the minimal progress in web accessibility over the last 20 years, DOJ does not expect compliance with Web Content Accessibility Guidelines 2.1 level AA to improve significantly in the absence of a rule.
  9. The rule will foster increased independence, flexibility, and dignity for persons with disabilities when accessing the services, programs, and activities of title II entities electronically.
  10. The rule will foster increased privacy for persons with disabilities when accessing the services, programs, and activities of title II entities electronically.
  11. The rule will reduce frustration experienced by people with disabilities when accessing the services, programs, and activities of title II entities electronically.
  12. The rule will decrease the need for persons with disabilities to rely on others while they attempt to access title II entities by ways of electronic means.
  13. The rule will increase program participation for persons with disabilities.
  14. The rule will increase civic engagement and inclusion.
  15. The rule will increase certainty about what constitutes an accessible website under the ADA and potentially reduce litigation.

 

II

The Proposed Rule Text (my thoughts//takeaways/questions appear within).

PART 35—NONDISCRIMINATION ON THE BASIS OF DISABILITY IN STATE AND LOCAL GOVERNMENT SERVICES

  1. The authority citation for part 35 continues to read as follows:

Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510; 42 U.S.C. 12134, 12131, and 12205a.

Subpart A—General

  1. Amend § 35.104 by adding definitions for Archived web content, Conventional electronic documents, Mobile applications (apps), Special district government, Total population, WCAG 2.1, and Web content in alphabetical order to read as follows:

Definitions.

* * * * *

Archived web content means web content that—

(1) Is maintained exclusively for reference, research, or recordkeeping;

(2) Is not altered or updated after the date of archiving; and

(3) Is organized and stored in a dedicated area or areas clearly identified as being archived.

* * * * *

Conventional electronic documents means web content or content in mobile apps that is in the following electronic file formats: portable document formats (“PDF”), word processor file formats, presentation file formats, spreadsheet file formats, and database file formats.

* * * * *

Mobile applications (“apps”) means software applications that are downloaded and designed to run on mobile devices, such as smartphones and tablets.

* * * * *

Special district government means a public entity—other than a county, municipality, or township, or independent school district—authorized by State law to provide one function or a limited number of designated functions with sufficient administrative and fiscal autonomy to qualify as a separate government and whose population is not calculated by the United States Census Bureau in the most recent decennial Census or Small Area Income and Poverty Estimates.

* * * * *

Total population means the population estimate for a public entity as calculated by the United States Census Bureau in the most recent decennial Census or, if a public entity is an independent school district, the population estimate as calculated by the United States Census Bureau in the most recent Small Area Income and Poverty Estimates.

* * * * *

WCAG 2.1 means the Web Content Accessibility Guidelines (“WCAG”) 2.1, W3C® Recommendation 05 June 2018, https://www.w3.org/​TR/​2018/​REC-WCAG21-20180605/​ [ https://perma.cc/​UB8A-GG2F]. WCAG 2.1 is incorporated by reference elsewhere in this part (see § 35.200 and 35.202).

Web content means information or sensory experience—including the encoding that defines the content’s structure, presentation, and interactions—that is communicated to the user by a web browser or other software. Examples of web content include text, images, sounds, videos, controls, animations, and conventional electronic documents.

Subpart H—Web and Mobile Accessibility

  1. Add new subpart H to read as follows:

Subpart H—Web and Mobile Accessibility

35.200

Requirements for web and mobile accessibility.

35.201

Exceptions.

35.202

Conforming alternate versions.

35.203

Equivalent facilitation.

35.204

Duties.

35.205–35.209

[Reserved]

Requirements for web and mobile accessibility.

  • A public entity shall ensure that the following are readily accessible to and usable by individuals with disabilities:

(1) Web content that a public entity makes available to members of the public or uses to offer services, programs, or activities to members of the public; and

(2) Mobile apps that a public entity makes available to members of the public or uses to offer services, programs, or activities to members of the public.

Thoughts/takeaways/Questions: the standard is readily accessible and usable. What does that mean? Currently, title II litigation, as well as a title III litigation for that matter, turns on whether there is meaningful accessibility for a particular person with a disability.

(b) Requirements

(1) Effective two years from the publication of this rule in final form, a public entity, other than a special district government, with a total population of 50,000 or more shall ensure that the web content and mobile apps it makes available to members of the public or uses to offer services, programs, or activities to members of the public comply with Level A and Level AA success criteria and conformance requirements specified in WCAG 2.1, unless the public entity can demonstrate that compliance with this section would result in a fundamental alteration in the nature of a service, program, or activity or in undue financial and administrative burdens.

(2) Effective three years from the publication of this rule in final form, a public entity with a total population of less than 50,000 or any public entity that is a special district government shall ensure that the web content and mobile apps it makes available to members of the public or uses to offer services, programs, or activities to members of the public comply with Level A and Level AA success criteria and conformance requirements specified in WCAG 2.1, unless the public entity can demonstrate that compliance with this section would result in a fundamental alteration in the nature of a service, program, or activity or in undue financial and administrative burdens.

(3) WCAG 2.1 is incorporated by reference into this section with the approval of the Director of the Federal Register under 5 U.S.C. 552(a) and 1 CFR part 51. All approved incorporation by reference (“IBR”) material is available for inspection at the U.S. Department of Justice and at the National Archives and Records Administration (“NARA”). Contact the U.S. Department of Justice at: Disability Rights Section, Civil Rights Division, U.S. Department of Justice, 150 M St. NE, 9th Floor, Washington, DC 20002; ADA Information Line: (800) 514–0301 (voice) or 1–833–610–1264 (TTY); website: www.ada.gov. For information on the availability of this material at NARA, visit www.archives.gov/​federal-register/​cfr/​ibr-locations.html or email fr.inspection@nara.gov. The material may be obtained from the World Wide Web Consortium (“W3C®”) Web Accessibility Initiative (“WAI”), 401 Edgewater Place, Suite 600, Wakefield, MA 01880; phone: (339) 273–2711; email: contact@w3.org; website: www.w3.org/​TR/​2018/​REC-WCAG21-20180605/​ [ https://perma.cc/​UB8A-GG2F].

Thoughts/takeaways/questions:

  1. WCAG is not static. I know there has been talk about a WCAG 3.0 that might have a radically different look. What happens as the WCAG evolves?
  2. Level AA and level A both need to be complied with.
  3. The years a title II entity has to comply depends upon the population of where the title II entity is and not the population of what the particular title II entity serves.
  4. Undue financial and administrative burden is going to be very difficult to show because you look to the entire resources of the title II entity and because a high-level person in the governmental entity will have to certify that such a burden exists. Further, everything short of undue financial and administrative burden must be done first.

Exceptions.

The requirements of § 35.200 of this chapter do not apply to the following:

(a) Archived web content. Archived web content as defined in § 35.104 of this chapter.

(b) Preexisting conventional electronic documents. Conventional electronic documents created by or for a public entity that are available on a public entity’s website or mobile app before the date the public entity is required to comply with this rule, unless such documents are currently used by members of the public to apply for, gain access to, or participate in a public entity’s services, programs, or activities.

Thoughts/takeaways/questions:

  1. This particular provision deals with conventional electronic documents created by or for a public entity available on the website or mobile app for the date the public entity is required to comply with the rule. After that date, those conventional documents need to be accessible to persons with disabilities.

(c) Web content posted by a third party. Web content posted by a third party that is available on a public entity’s website.

(d) Linked third-party web content. Third-party web content linked from a public entity’s website, unless the public entity uses the third-party web content to allow members of the public to participate in or benefit from the public entity’s services, programs, or activities.

Thoughts/takeaways/questions:

  1. The second clause is critical. That is, third-party web content has to be accessible to persons with disabilities if the third-party web content is being used to allow the members of the public to participate in or benefit from the public entity’s services, program, or activities.
  2. The DOJ specifically says when talking about this particular section that a public entity may not delegate away its obligations under the ADA. See also this blog entry.

(e) Public postsecondary institutions: password-protected course content. Except as provided in paragraphs (e)(1) and (2) of this section, course content available on a public entity’s password-protected or otherwise secured website for admitted students enrolled in a specific course offered by a public postsecondary institution.

(1) This exception does not apply if a public entity is on notice that an admitted student with a disability is pre-registered in a specific course offered by a public postsecondary institution and that the student, because of a disability, would be unable to access the content available on the public entity’s password-protected or otherwise secured website for the specific course. In such circumstances, all content available on the public entity’s password-protected or otherwise secured website for the specific course must comply with the requirements of § 35.200 by the date the academic term begins for that course offering. New content added throughout the term for the course must also comply with the requirements of § 35.200 at the time it is added to the website.

(2) This exception does not apply once a public entity is on notice that an admitted student with a disability is enrolled in a specific course offered by a public postsecondary institution after the start of the academic term and that the student, because of a disability, would be unable to access the content available on the public entity’s password-protected or otherwise secured website for the specific course. In such circumstances, all content available on the public entity’s password-protected or otherwise secured website for the specific course must comply with the requirements of § 35.200 within five business days of such notice. New content added throughout the term for the course must also comply with the requirements of § 35.200 at the time it is added to the website.

(f) Public elementary and secondary schools: password-protected class or course content. Except as provided in paragraphs (f)(1) through (4) of this section, class or course content available on a public entity’s password-protected or otherwise secured website for students enrolled, or parents of students enrolled, in a specific class or course at a public elementary or secondary school.

(1) This exception does not apply if the public entity is on notice of the following: a student with a disability is pre-registered in a specific class or course offered by a public elementary or secondary school and that the student, because of a disability, would be unable to access the content available on the public entity’s password-protected or otherwise secured website for the specific class or course. In such circumstances, all content available on the public entity’s password-protected or otherwise secured website for the specific class or course must comply with the requirements of § 35.200 by the date the term begins for that class or course. New content added throughout the term for the class or course must also comply with the requirements of § 35.200 at the time it is added to the website.

(2) This exception does not apply if the public entity is on notice of the following: a student is pre-registered in a public elementary or secondary school’s class or course, the student’s parent has a disability, and the parent, because of a disability, would be unable to access the content available on the password-protected or otherwise secured website for the specific class or course. In such circumstances, all content available on the public entity’s password-protected or otherwise secured website for the specific class or course must comply with the requirements of § 35.200 by the date the term begins for that class or course. New content added throughout the term for the class or course must also comply with the requirements of § 35.200 at the time it is added to the website.

(3) This exception does not apply once a public entity is on notice of the following: a student with a disability is enrolled in a public elementary or secondary school’s class or course after the term begins and that the student, because of a disability, would be unable to access the content available on the public entity’s password-protected or otherwise secured website for the specific class or course. In such circumstances, all content available on the public entity’s password-protected or otherwise secured website for the specific class or course must comply with the requirements of § 35.200 within five business days of such notice. New content added throughout the term for the class or course must also comply with the requirements of § 35.200 at the time it is added to the website.

(4) This exception also does not apply once a public entity is on notice of the following: a student is enrolled in a public elementary or secondary school’s class or course after the term begins, and the student’s parent has a disability, and the parent, because of a disability, would be unable to access the content available on the public entity’s password-protected or otherwise secured website for the specific class or course. In such circumstances, all content available on the public entity’s password-protected or otherwise secured website for the specific class or course must comply with the requirements of § 35.200 within five business days of such notice. New content added throughout the term for the class or course must also comply with the requirements of § 35.200 at the time it is added to the website.

(g) Individualized, password-protected documents. Conventional electronic documents that are: (1) about a specific individual, their property, or their account; and (2) password-protected or otherwise secured.

Thoughts/takeaways/questions:

  1. I find the password protection exceptions a bit strange because they go against the principles of universal design. Basically, if an educational institution has a password protection system in place, it doesn’t have to worry about accessibility for persons with disabilities so long as it is not on notice that a person with a disability is taking that class or needs that password. Same for parents. Universal design would suggest that you always focus on disability accessibility. It will be interesting to see how this plays out.
  2. The exception puts a premium on the person with the disability or the parent notifying the public entity of the need for an accommodation due to a disability. In dealing with this principle, remember magic words are not required.
  3. DOJ in their discussion of this particular section of the proposed rule talks about whether a person would be unable because of a disability to access the content posted on the password-protected website for that class or course. It goes on to say that the phrase “unable to access,” is intended to cover situations where a student’s disability would limit or prevent their ability to equally access the relevant content. DOJ also uses “on the basis of,” in this document as well. The two concepts arguably mean the same thing. See this blog entry.
  4. There are specific timing requirements as to when the material appearing in the password-protected course must be made accessible to persons with disabilities.

Conforming alternate versions.

  • A public entity may use conforming alternate versions of websites and web content, as defined by WCAG 2.1, to comply with § 35.200 only where it is not possible to make websites and web content directly accessible due to technical or legal limitations.

Thoughts/takeaways/questions:

  1. The DOJ makes clear that this is not a favored approach and should only be used rarely.
  2. Separate but equal is not a thing and DOJ recognizes that. See also this blog entry where the Department of Transportation specifically ruled out such an approach.
  3. This particular provision bears watching to see if separate but equal becomes a thing. DOJ actually has a specific question it seeks common on with respect to this issue (see the 60+ questions section below).

(b) WCAG 2.1 is incorporated by reference into this section with the approval of the Director of the Federal Register under 5 U.S.C. 552(a) and 1 CFR part 51. All approved incorporation by reference (“IBR”) material is available for inspection at the U.S. Department of Justice and at the National Archives and Records Administration (“NARA”). Contact the U.S. Department of Justice at: Disability Rights Section, Civil Rights Division, U.S. Department of Justice, 150 M St. NE, 9th Floor, Washington, DC 20002; ADA Information Line: (800) 514–0301 (voice) or 1–833–610–1264 (TTY); website: www.ada.gov. For information on the availability of this material at NARA, visit www.archives.gov/​federal-register/​cfr/​ibr-locations.html or email fr.inspection@nara.gov. The material may be obtained from the World Wide Web Consortium (“W3C®”) Web Accessibility Initiative (“WAI”), 401 Edgewater Place, Suite 600, Wakefield, MA 01880; phone: (339) 273–2711; email: contact@w3.org; website: www.w3.org/​TR/​2018/​REC-WCAG21-20180605/​ [ https://perma.cc/​UB8A-GG2F].

Equivalent facilitation.

Nothing in this subpart prevents the use of designs, methods, or techniques as alternatives to those prescribed, provided that the alternative designs, methods or techniques result in substantially equivalent or greater accessibility and usability of the web content or mobile app.

Duties.

Where a public entity can demonstrate that full compliance with the requirements of § 35.200 would result in a fundamental alteration in the nature of a service, program, or activity or in undue financial and administrative burdens, compliance with § 35.200 is required to the extent that it does not result in a fundamental alteration or undue financial and administrative burdens. In those circumstances where personnel of the public entity believe that the proposed action would fundamentally alter the service, program, or activity or would result in undue financial and administrative burdens, a public entity has the burden of proving that compliance with § 35.200 would result in such alteration or burdens. The decision that compliance would result in such alteration or burdens must be made by the head of a public entity or their designee after considering all resources available for use in the funding and operation of the service, program, or activity, and must be accompanied by a written statement of the reasons for reaching that conclusion. If an action would result in such an alteration or such burdens, a public entity shall take any other action that would not result in such an alteration or such burdens but would nevertheless ensure that individuals with disabilities receive the benefits or services provided by the public entity to the maximum extent possible.

 

Thoughts/takeaways/questions:

 

  1. When an individual on the basis of a disability cannot access or does not have equal access to a service, program, or activity through a public entity’s web content or mobile app that conform to WCAG 2.1 level AA, the public entity still has the obligation to provide the individual an alternative method of access to that service, program, or activity unless the public entity can demonstrate that the alternative methods of access results in a fundamental alteration in the nature of the service, program, or activity or in an undue financial and administrative burden.
  2. Just because an entity is in full compliance with the rule’s web or mobile app accessibility standard, that does not mean it has met all of its obligations under the ADA or other applicable laws.
  3. Remember, the ADA always requires an individualized analysis.

 

III

60+ questions

 

  1. The proposed rule contains over 60 questions for people to comment on. The questions are quite elaborate. Accordingly, considering the thousands and thousands of comments likely to come in on this rule, the need for DOJ to evaluate those comments, and then the need to formulate a final rule based upon the comments that come in, one wonders whether this proposed rule will not suffer the same fate as the Obama proposed rules depending upon the 2024 election results. Is there simply enough time to complete the process? I am not so sure.
  2. Now is the time for anyone interested or affected by the proposed rule to get in their comments. You have 60 days from August 4 to submit those comments. Once a rule becomes finalized, it is much harder to affect the rule.
  3. The 60 questions include the following topics:
    1. Whether DOJ should craft a more flexible definition of what is a conventional electronic document or stick with their list, which is exhaustive and focuses on specific file types.
    2. Whether any refinement to the definition of web content is in order.
    3. Is there a technical standard or performance standard other than WCAG 2.1 that the DOJ should consider? (I am doubtful that such a thing exists unless you want to look to the European Union).
    4. What are the compliance costs and challenges that small public entities would face in conforming with the rule and what resources do such entities have to comply with the rule. A related question is whether a different WCAG version or conformance level should be required for small public entities or for a subset of such entities.
    5. How do public entities use social media platforms and how do members of the public use content made available by public entities on their social media platforms and what are the barriers people with disabilities encounter.
    6. Several questions going to the viability of the tiered approach to when entities must comply with the rule and whether something other than population size might be used as the standard.
    7. With respect to live audio content and captioning of same, whether the DOJ should consider a different compliance date. Also, what types of live audio content do public entities and small public entities post and what are the costs associated with same.
    8. How do public entity currently manage content maintained for reference, research, or record-keeping.
    9. What is the impact of the exceptions on people with disabilities and how will foreseeable advances in technology affect those exceptions.
    10. What types of external mobile apps if any, do public entities use to offer the services, programs and activities to members of the public, and how accessible are those apps. (For example, the town that I live in uses a third-party mobile parking app).
    11. Any issues relating to accessibility of digital books and textbooks that DOJ should consider when finalizing the rule. Any impact of the rule on libraries.
    12. With respect to the exceptions, how difficult is complying with the rule if the exceptions are not there at all.
    13. Just how far do educational institutions go with the utilization of password-protected websites and mobile apps with respect to students and parents. Several other related questions.
    14. Do elementary and secondary schools have a system allowing a parent with a disability to provide notice of their need for an accessible class or course content (they absolutely should if they don’t already).
    15. The kind of individualized conventional electronic document that public entities make available and how are they made available. What is the difficulty of making those documents accessible.
    16. How significant is the separate but equal risk.
    17. How is compliance to be measured. Are there particular approaches that are better than others.
    18. What should be considered sufficient evidence to support an allegation of noncompliance with the technical standard for purposes of enforcement actions and what should be considered in that process. A slew of related question regarding how actual compliance will be determined.