To start the new year, we are going to have a short discussion of a couple of cases dealing with attorney fees in the serial plaintiff context. Then, we are going to explore the Pregnant Workers Fairness Act that was just signed by Pres. Biden as part of the massive bill to keep the government open. As usual the blog entry is divided into categories and they are: Shayler v. 1310 PCH, LLC; Garcia v. Guadalupe Alcocer; Pregnant Workers Fairness Act highlights; and Pregnant Workers Fairness Act thoughts/takeaways. It is hard to believe that the reader won’t want to read the whole blog entry, but of course the reader is free to focus on any or all of the sections.

I
Shayler v. 1310 PCH, LLC

In Shayler v. 1310 PCH, LLC, here, the Ninth Circuit in a published decision decided on October 24, 2022, winds up approving a 65% downward multiplier to the total amount of fees and a $300 per hour blended billing rate for plaintiff’s counsel because the nature of the work was turnkey. Also, the court specifically referenced abusive ADA litigation and that the serial plaintiff model allows for a quick recovery of attorney’s fees with relatively minimal difficulty. The cases also include boilerplate filing then rarely involve complex legal issues or any difficult factual discovery. Finally, the court said that $300 per hour was a sufficient figure for a case involving a run-of-the-mill repeat player ADA case lacking in legal, factual, or procedural complexity.

Comment: I know what it takes to keep my doors open even as a solo practitioner practicing virtually. $300 per hour is not much at all. I doubt the firm can make much of a profit at that figure, if any. It is a published decision, so I definitely expect defense firms to utilize this case widely in attempting to keep plaintiff’s attorney fees to the bare minimum.

II
Garcia v. Guadalupe Alcocer

In Garcia v. Guadalupe Alcocer, here, the Ninth Circuit in an unpublished decision decided on December 8, 2022, holds an award for attorney fees for a defendant involved in litigation with a serial plaintiff. The court said that there was no way the plaintiff attorney could have believed that the plaintiff had a credible intent to return, which is necessary to get injunctive relief, and therefore the defendant was entitled to its fees.

Comment: There can be real advantages for a defense attorney to notice up a deposition immediately to establish standing, an idea that my colleague Richard Hunt frequently brings up in his access defense blog. Also, on the plaintiff side, plaintiff attorneys do need to be aware of the requirement to establish an intent to return when they are prosecuting title III cases. Finally, keep in mind that how intent to return is viewed can vary considerably from jurisdiction to jurisdiction.

III
Pregnant Workers Fairness Act Highlights

I previously blogged on the Pregnant Workers Fairness Act here, but it pays to go over it as it exists when it was signed into law.

The Pregnant Workers Fairness Act can be found at the very end of the massive bill that Pres. Biden signed to keep the government open. That bill is here. The highlights of the bill follow:

  1. Applies to employers of 15 or more.
  2. Applies to Congress.
  3. Applies to State elected officials and their staff.
  4. Applies to States.
  5. Applies to federal employees.
  6. Applies to religious entities with respect to their employees.
  7. A key term is “known limitation,” which means a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions that the employee or employee’s representative has communicated to the employer whether or not such condition meets the definition of disability under the ADA.
  8. Another key term is “qualified employee,” which means an employee or applicant who, with or without reasonable accommodation, can perform the essential functions of the employment position.
  9. A person is qualified under the Act if all of the following are true: 1) any inability to perform an essential function is for a temporary period; 2) the essential function could be performed in the near future; and 3) the inability to perform the essential function can be reasonably accommodated.
  10. “Reasonable accommodation,” and “undue hardship,” have the same meaning as under title I of the ADA and its final implementing regulations, including the interactive process regulations.
  11. Unlawful employment practices include:

(1) not make reasonable accommodations to the known
limitations related to the pregnancy, childbirth, or related
medical conditions of a qualified employee, unless such covered
entity can demonstrate that the accommodation would impose an
undue hardship on the operation of the business of such covered
entity;
(2) require a qualified employee affected by pregnancy,
childbirth, or related medical conditions to accept an
accommodation other than any reasonable accommodation arrived
at through the interactive process referred to in section
102(7);
(3) deny employment opportunities to a qualified employee
if such denial is based on the need of the covered entity to
make reasonable accommodations to the known limitations related
to the pregnancy, childbirth, or related medical conditions of
the qualified employee;
(4) require a qualified employee to take leave, whether
paid or unpaid, if another reasonable accommodation can be
provided to the known limitations related to the pregnancy,
childbirth, or related medical conditions of the qualified
employee; or
(5) take adverse action in terms, conditions, or privileges
of employment against a qualified employee on account of the
employee requesting or using a reasonable accommodation to the
known limitations related to the pregnancy, childbirth, or
related medical conditions of the employee.

  1. Exhaustion of administrative remedies is required.
  2. This is a fee shifting statute.
  3. Damages are tied into title VII the of the civil rights act.
  4. Prohibits retaliation.
  5. Prohibits coercion, which term includes coercing, intimidating, threatening, and interfering.
  6. An employer’s good faith effort with respect to the interactive process is a defense to damages just as it is with title I of the ADA.
  7. EEOC has to come up with regulations within one year of Pres. Biden signing the bill. The regulations implementing the statute with respect to Congress must parallel the EEOC regulations.
  8. There is a forcible waiver of State sovereign immunity.

IV
Pregnant Workers Fairness Act Thoughts/Takeaways

  1. A disability is not necessary for person to be protected by the Pregnant Workers Fairness Act.
  2. Reasonable accommodations and undue hardship mean the same thing as the ADA and that is in the statute. Interesting question as to whether putting this in the statute would allow the Supreme Court to say that undue hardship and reasonable accommodation can mean something different with respect to religion than it does with respect to the ADA and the Pregnant Workers Fairness Act because analogous statutory language and final regulatory language do not exist in the religious accommodation area. Also, while the law theoretically applies to religious employers, don’t forget about Our Lady of Guadalupe and Hosanna-Tabor, here and here for example.
  3. Interactive process is specifically in the statute. With respect to the ADA, it only appears in the title I regulations but has been adopted widely throughout title I-III jurisprudence.
  4. In the unlawful employment practices section of the Act, the very first subsection implicitly says that the ADA’s concept of fundamental alteration found in title II and title III of the ADA is very much in play.
  5. I have said for years that employers should go slowly with respect to insisting on leave rather than engaging in the interactive process and coming up with a reasonable accommodation. Subsection 4 of the unlawful employment practices section makes clear that employers cannot do this. I would expect that ADA plaintiff side lawyers use this particular provision by analogy against employers that force people on leave instead of engaging in the interactive process to see what accommodation may work for an employee with a disability.
  6. The Act extends to terms, conditions, and privileges of employment.
  7. Good faith efforts are a defense to damages just like in the ADA.
  8. Sovereign immunity is forcibly waived. It will be interesting to see how the courts feel about that with respect to the Act’s congruence and proportionality to the harm being redressed. Keeping in mind that since women are in the intermediate class for purpose of equal protection jurisprudence, one has to figure that the odds would be quite high that courts would find sufficient congruence and proportionality and uphold the law as being constitutional.
  9. The use of the term “based on,” means that causation is but for as detailed in Bostock, discussed here.
  10. The Act means the confusion created by the Supreme Court in Young is now clarified by statute.
  11. Previously, I have said in many a presentation that it is important to think ADA when accommodating pregnancy as a matter of preventive law, this Act now mandates such thinking.

Today’s blog entry is my yearly wrap up of the most popular blog entries for 2022. As I always do, there are some additional blog entries that I keep in the greatest hits category due to what I believe is their significance even though they may not be the most popular. With respect to the most popular for 2022, we did have the blog entry discussing being careful about taking working accommodations away dropped off. The others are either in the most popular or continue to be of particular significance. Here is the list for 2022. My thanks to all my blog readers. Writing this blog, it definitely the most favorite part of my law and consulting practices from the least popular to the most popular.

 

  1. The California ESA bill received 517 views. I also recommend the blog entry discussing the Illinois approach as well.
  2. Just what is a private club received 517 views.
  3. The DOJ statement on the ADA is a nondelegable duty received 535 views.
  4. A relatively recent blog entry discussing how title III standing is undoubtedly headed to the United States Supreme Court received 572 views.
  5. What do you have to show to get compensatory damages under title II received 621 views.
  6. How sovereign immunity applies to Indian tribes received 641 views.
  7. Supreme Court cases where they have been and where they are going received 758 views. Keep in mind that the upcoming term is likely to have more cases that would be relevant to this particular blog entry.
  8. The latest HUD circular discussing animals and housing received 759 views.
  9. Where does an independent contractor turn if they are discriminated against on the basis of disability received 1037 views.
  10. Can you get compensatory and punitive damages in retaliation cases received 1553 views.
  11. Does the ADA and §504 allow for disparate impact claims received 1715 views.
  12. The Iowa Supreme Court case of Cohen v. Clark, with discusses conflict thing obligation between the owner of an ESA and people needing a no pet policy, received 1776 views.
  13. In first place, the ADA and the applicable statute of limitations with 3999 views.

 

It isn’t really surprising that the list is dominated by remedies questions. After all, law, some would say unfortunately so, is a business. Again, there are other blog entries in this greatest hits categories that do not make the list but I keep them on because of their overall significance.

 

Happy holidays y’all.

Before getting started on the blog entry of the week, a couple of housekeeping matters. First, my daughter comes home from her first semester freshman year Thursday evening. It is a long break for her. We do have travel plans the week after Christmas. There are also a few days in January before she goes back where there are travel plans. I may or may not have a business trip in January as well. So, the blog entries in terms of their timing of when they appear during the week or when they appear at all may be hit or miss for a little while. I don’t think you can expect a blog entry the week after Christmas. Also, the week of January 9 might not see a blog entry either. Otherwise, my plan is to get up blog entries over that period of time, which will go into the third week of January, but the particular day of the week it goes up may vary more than usual. After this blog entry, my next blog entry is going to be the top 10ish blog entries of the year.

 

Turning to the blog entry of the day, it is a published decision from the Eighth Circuit decided on December 1, 2022, Alberty v. United States of America, here. My thanks to Prof. Leonard Sandler, a clinical law professor at the University of Iowa for sending the case along to me. The case asks the question of what happens when a federal courthouse is not accessible to a person with a disability, a person gets injured as a result of that, and sues for personal injuries. Does the federal government get a get out of jail free card on the grounds of sovereign immunity for tort claims? As usual, the blog entry is divided into categories and they are: facts; court’s reasoning that the discretionary functions exception to the Federal Tort Claims Act waiver of sovereign immunity applies; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

Alberty is in his sixties and has a visual impairment. The building’s east exit, where Alberty fell, has concrete stairs leading down to a sidewalk. At the top of the stairs are four concrete bollards, each separated by a few feet of space. Running along either side of the stairs is a flat area, level with the top step. The parties refer to these areas as the “south walk” and the “north walk.” The walks meet the sidewalk at a twenty-six-inch vertical drop. As Alberty left the building, he noticed the concrete bollards. He presumed they were meant to deter pedestrians from proceeding past them. So he went around them, along the south walk. When he reached the end of the south walk, he fell onto the sidewalk below, breaking his leg and elbow. The injuries required two surgeries followed by several months of physical therapy. Alberty brought a tort claim against the government alleging that it was negligent in designing and maintaining the paved walkway outside the building. The federal government defended on sovereign immunity grounds.

 

II

Court’s Reasoning That the Discretionary Functions Exception to the Federal Tort Claims Act Waiver of Sovereign Immunity Applies

 

  1. The Federal Tort Claims Act (FTCA), 28 U.S.C. §1346 here, authorizes district courts to hear suits against United States for personal injury. That waiver is limited and contains an exception involving discretionary functions performed by a government agent.
  2. The discretionary exception applies when the government’s agent, in this case the Gen. Services Administration, acts pursuant to its discretion and that discretion implicates policy considerations.
  3. In figuring out whether discretion is involved there are two questions that are asked. First, whether it involves an element of judgment or choice that of being controlled by mandatory statutes or regulations. Second, whether the government employee’s judgment or choice was based on considerations of social, economic, and political policy.
  4. The discretionary decision needs only to be susceptible to policy analysis regardless of whether the employee actually engaged in conscious policy balancing and regardless of whether the discretion involved was abused.
  5. The burden is on the plaintiff to rebut the presumption that discretion is grounded in policy considerations.
  6. For a plaintiff to show subject matter jurisdiction when the discretionary exception is involved, the plaintiff must show either: 1) the government’s decisions about the south walk design did not involve an element of judgment or choice; or 2) if the government had such discretion, it was not grounded in policy considerations.
  7. While the Gen. Service Administration’s website talks about being committed to making federal buildings and facilities fully accessible to all people and ensuring the full integration of individuals with disabilities using governmental facilities, Alberty points to no statute, regulation, or policies behind that commitment. Without more, the website commitment to accessibility lacks the required specificity and mandatory language necessary to strip government employees of discretion. So, Alberty has not shown that the accessibility commitment is anything more than aspirational or a general principle. In short, whether and how to achieve the accessibility commitment are discretionary decisions.
  8. 40 U.S.C. §3312 is of no help either because the statute talks about accessibility to the maximum extent feasible as determined by the Administrator. The statute also does not even specify a particular building code, so the Administrator presumably retains discretion not only how of how to comply but over which code to comply with when codes conflict deviate from one another. Accordingly, Alberty has not pointed to any statute or mandatory regulations that constrain the Gen. Service Administration’s discretion over the building design.
  9. The design of the walkway involves social, economic, and political policy considerations like public safety, cost of design and material, and aesthetics. The GSA report that Alberty cites to show that the building’s exterior was renovated in 2003 even states some of the policy considerations behind that decision.
  10. Discretion over safety warnings are susceptible to policy choices due to the need to balance safety against governmental efforts and costs and the need for professionals on the ground to adapt to the conditions they face in determining how to expend limited resources in the effort to identify dangers.
  11. While Alberty may have been a single individual who fell in a single location, the design and warnings or lack thereof at that location goes to broader policy considerations affecting the broader public like safety, costs, and aesthetics.

 

III

Thoughts/Takeaways

 

  1. The dismissal was without prejudice.
  2. The decision is published.
  3. Unlike the case we discussed here, no state law claim was filed. An important difference between that case and the one discussed here is that there are no private parties involved in Alberty.
  4. No §504 claim was filed.
  5. No claim with the Architectural Access Barrier Board was filed before bringing suit.
  6. Whether policy analysis is involved is a very low bar for the government to meet. In other words, it would be almost impossible for a plaintiff to meet the burden of showing that policy analysis is not involved.
  7. This case is so broad that if a person is injured in a building constructed or altered by the Gen. Services Administration, you can forget about personal injury suits under the Federal Tort Claims Act.
  8. Too early to tell whether this case would be appealed to the United States Supreme Court or a rehearing en banc would be sought. However, it’s hard to believe that either approach would be successful.
  9. If other parties besides the federal government are involved when it comes to accessing the federal courthouse, there may be workarounds to this decision, such as we discussed here. Also, as we discussed some time ago it is possible to use the ADA Architectural Guidelines as a basis for a negligence per se claim in some States. See here for example.

Before getting started on the blog entry of the week, I want to congratulate the United States Soccer Men’s National Team on a valiant effort at the World Cup. Hopefully, a harbinger of good things to come. Also, things in Georgia are a bit bonkers at the moment. UGA is a number one seed in the college football playoffs, and we have an election on December 6, 2022, that just about everybody in the country is following. My family voted early. As for UGA, it is hard to explain to people that do not live in Georgia the impact that UGA has on the mindset of those in Georgia regardless of whether you attended there or not. If you do have a team in the college football playoffs, I wish you luck. For the first time in quite a while, there are two Big Ten teams in it.

 

Today’s blog entry is going to be a short one. I also expect within the next couple of weeks to do my annual most popular blog entries of the year report. The case of the day is Piotrowski v. Signature Collision Centers decided by the Eastern District of Pennsylvania on October 8, 2021, here. It talks about what does interference mean with respect to a person who sues for interfering with his or her or their’s protected rights. We previously blogged on how to prove up an interference claim, here, but that case didn’t really answer what is an interference claim in terms of its definition. This blog entry is really short. Even so, it is still divided into categories and they are: facts; court’s reasoning that plaintiff’s ADA interference claim can go forward; and thoughts/takeaways. The blog entry is so short that I can’t imagine not reading all of it.

 

I

Facts

 

In the first days of Covid-19 related shutdowns, plaintiff emailed his employer to explain that he had diabetes, was a person with a disability, and to request and propose accommodations. The employer kept moving the goalposts: 1) informed plaintiff he could use sick days or paid time off to cover absences; 2) after plaintiff reiterated his initial request and included multiple links to government issued articles addressing reasonable accommodations under the ADA in preparation for the pandemic, which included working from home and telework, telling the plaintiff that he had to be physically present to perform the essential functions of his position and that any additional days would be unpaid if not already covered by sick leave; 3) after plaintiff submitted notes from his endocrinologist stating that he was immunosuppressed due to his diabetes and to remain off for two weeks (plaintiff sent subsequent emails as well), the employer told him that his Dr.’s note did not mention a reasonable accommodation for disability; 4) after providing the employer with the second Dr.’s note, the employer told him that they would not provide him with any additional sick leave because the second Dr.’s note did not advise him to quarantine; and 5) never providing the plaintiff with exactly what the employer needed from his doctor with respect to a note even though his employer said they would get that language to him.

 

On April 1, 2020, plaintiff received an email from his employer asserting that he had abandoned his position because he failed to send a follow-up email and/or submit a third Dr.’s note to his employer. He then filed a lawsuit a little over a year later.

 

II

 

Court’s Reasoning That Plaintiff’s ADA Interference Claim Can Go Forward

 

  1. The Third Circuit has not set forth the elements of an ADA interference claim. However, the Seventh and Ninth Circuits have adopted the test for anti-interference claims under the Fair Housing Act.
  2. Citing to a case that we discussed here, the Third Circuit has held that under the Fair Housing Act, courts should give the word “interference,” its dictionary definition, which is the act of meddling in or hampering an activity or process.
  3. The employer moving the goalposts by constantly asking for more information constitutes conduct meddling in or hampering plaintiff’s ability to invoke his rights under the ADA.

 

III

Thoughts/Takeaways

 

  1. This is not the only case saying that interference refers to meddling or hampering. See this case for example: Equal Emp’t Opportunity Comm’n v. Geisinger Health, Civil Action 21-4294-KSM (E.D. Pa. Oct. 17, 2022).
  2. Common ways that I see interference claims would be a supervisor discouraging a person from requesting reasonable accommodations. In the higher education world, a professor putting obstacles in place with respect to what has been worked out between disability services and the student with a disability.
  3. Meddling or hampering is not a high standard.
  4. For proving up such a claim, Frakes, is an excellent place to start.
  5. Be wary of making excessive documentation requests. We discussed one such case here. Also, as this blog entry makes clear, asking for documentation when it isn’t necessary to do so may set the employer up for an interference claim.
  6. I really like the Samper case out of the Ninth Circuit, which we discussed here, for figuring out when telework or remote work is something that should be allowed under the ADA. That said, I do think the Samper factors need to be revised slightly in light of what we have learned over the pandemic. More specifically, those factors as amended for the Covid-19 pandemic lessons would be: 1) the employee must work in person as part of the team; 2) the job requires in person face-to-face interaction with clients and other employees; or 3) the job requires the employee to work with items and equipment that are on site. Adding the in person requirements to criteria ##1-2, is excellent preventive law in light of the pandemic.
  7. As we discussed here, unreasonable delay in granting an accommodation is actionable.

Hope everyone had a great Thanksgiving weekend.

 

Before getting started on the case of the day, I wanted to let everyone know that I have updated two blog entries in the Understanding the ADA blog. First, last week’s blog entry discussing how people in California who associate with a person with a disability have a right to have Batson challenges exercised on their behalf has been updated to also reference an earlier case, this one out of the Fifth Circuit, which said that a wheelchair user had standing to pursue inaccessibility of the courthouse claims because he had been called for jury duty in the past and likely would be called for jury duty in the future. Second, the blog entry discussing the football player who claimed disability discrimination because he was unable to wear a visor per a referee’s decision, that he needed in order to play the game safely (he did wind up suffering an injury when he could not wear the visor), was dismissed. Case was dismissed on the grounds that the Labor-Management Relations Act preempted the New Jersey Law Against Discrimination claims and that he did not file with the EEOC within 300 days so he did not properly exhaust administrative remedies per the ADA. The original blog entry on the Miles case along with the update can be found here at the end of that blog entry.

 

The case of the day is Gray v. FleetPride, Inc., 21 C 4981 (N.D. Ill. Oct. 17, 2022), here, decided by Magistrate Judge Sunil R. Harjani of the United States District Court for the Northern District of Illinois on October 17, 2022. As usual, the blog entry is divided into categories and they are: facts; court’s discussion of disability under the ADA; court’s discussion that plaintiff sufficiently alleged an actual impairment; court’s reasoning that plaintiff sufficiently alleged that he was regarded as having a disability; court’s reasoning that plaintiff sufficiently alleged a failure to accommodate an actual disability by not even engaging in discussions of reassigning him to a vacant position; plaintiff did adequately request an accommodation; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

Gray, the plaintiff, was employed by Midway Truck Parts as a Driver beginning on March 29, 1999. Midway Truck Parts was acquired by FleetPride in about 2011, and Gray remained employed as a Driver by FleetPride.  On December 22, 2016, Gray was injured on the job while making a delivery.  Almost five months later, on May 18, 2017, Gray provided FleetPride with a letter from his physician releasing him to return to work with restrictions. In particular, Gray’s physician’s letter stated that he could return to work on May 22, 2017 with permanent restrictions that he should be precluded from lifting more than 35 pounds and limited to pushing and pulling at 150 pounds. Due to his restrictions, Gray told FleetPride that he was willing and able to either work in a new position or a position in an alternative location.  Then, on May 22, 2017, FleetPride discharged Gray, stating “since your restrictions are permanent, unfortunately we are unable to accommodate.” Defendant moved to dismiss the complaint.

 

II

Court’s Discussion of Disability under the ADA

 

  1. The ADA explicitly directs at 42 U.S.C. §12102(4)(A), that disability has to be construed in favor of broad coverage.
  2. The ADA defines major life activities at 42 U.S.C. §12102(2)(A), to include lifting and working.
  3. With the amendments to the ADA, the impairment does not need to prevent or significantly or severely restrict an individual from performing a major life activity in order to be considered substantially limiting.
  4. The question is whether a plaintiff is limited as compared to most people in the general population.
  5. A plaintiff must allege that he is disabled but that he also can still do the job with or without reasonable accommodations.

 

III

Court’s Discussion That Plaintiff Sufficiently Alleged an Actual Impairment

 

  1. Plaintiff alleged an actual impairment because he stated in his complaint that he suffered an on-the-job injury on December 22, 2016, requiring him to be off work until May 22, 2017. He also said that lifting and his ability to push and pull were limited due to his injury. His physician said that he could return to work on May 22, 2017 but should not lift over 35 pounds and had a restriction of pushing and pulling at 150 pounds. He also alleged that his postinjury condition and corresponding permanent physical restrictions substantially limited daily life as well as caused him pain.
  2. Lifting and reaching are major life activities under the ADA.
  3. A substantial limitation need not be severe and the complaint adequately sets forth facts to be able to infer that plaintiff is limited in lifting and reaching as compared to most people in the general population.
  4. The facts are sufficient for the court to reasonably infer that plaintiff is unable to perform any driver position requiring deliveries. More specifically, he alleged that his physical impairment combined with pain prevented him from performing the driver position. Since he is not able to work as a driver making deliveries, it is reasonable to infer that he would not be able to perform a variety of delivery driver positions and therefore, is substantially limited in his ability to work in the class of jobs or a broad range of jobs.
  5. The fact that plaintiff believed he could still work and was qualified for several other positions at his employer is not a bar to plaintiff’s claim that he had an actual disability. The ADA does not require a plaintiff to show that he is totally unable to work to be considered substantially limited in any of his major life activities. [The interplay between SSDI and the ADA is something we discussed here].
  6. Per 29 C.F.R. §1630.2(j)(1)(ii), an impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting.
  7. The Seventh Circuit has not addressed the issue of whether lifting restrictions are substantial limitations under the standards outlined in the amendments to the ADA but they likely are: 1) the amendments make the standard for qualifying as a person with a disability more inclusive; 2) the amendments was passed to ensure that the ADA’s definition of disability with construed in favor of broad coverage; 3) the amendments made the question of whether an individual’s impairment was a disability not one for extensive analysis; 4) the term “substantially limits,” after the amendments is construed broadly in favor of expansive coverage and not meant to be a demanding standard; and 5) the appendix to the EEOC’s amended regulations specifically mention lifting as a major life activity and describes how then such a person could be substantially limited in the major life activity of working; and 6) numerous cases after the amendments to the ADA have held that a lifting restriction may substantially limit a major life activity.

 

IV

Court’s Reasoning That Plaintiff Sufficiently Alleged That He Was Regarded As Having a Disability

 

  1. After the 2008 amendments to the ADA, a plaintiff need not show that the employer regarded the plaintiff as having an impairment that substantially limits one or more life activities with respect to regarded as claims.
  2. The standard requiring a plaintiff to show that an impairment substantially limits his or her ability to perform a class of jobs or a broad range of jobs in various classes as compared to most people having comparable training, skills, and abilities with respect to the major life activity of working, only applies to the actual disability prong of the ADA. So, plaintiff does not need to claim that the employer believed he had an impairment substantially limiting the major life activity of working in a regarded as claim.
  3. Despite being told by the plaintiff that he was willing to work at other locations and of his disabilities, the employer terminated his employment two days later. The fact that the employer terminated the plaintiff as soon as it became aware of his restrictions and after requesting accommodations raises a plausible inference that plaintiff was terminated because of a perceived impairment. In fact, the termination notice said that they could not accommodate because his restrictions are permanent. All of that means that plaintiff sufficiently alleged that the employer viewed his physical condition as disqualifying from performing his specific delivery driver job and that the employer regarded him as unable to perform a broad class of jobs by not allowing him to return to work in any job or capacity.

 

V

Court’s Reasoning That Plaintiff Sufficiently Alleged a Failure to Accommodate an Actual Disability by Not Even Engaging in a Discussion of Reassignment

 

 

  1. While a person covered only under the regarded as prong is not entitled to a reasonable accommodation, this case involved actual disability claims as well.
  2. The duty to accommodate the employee with a disability may include reassignment to a vacant position.
  3. Citing to a case we have discussed previously, here, the ADA mandates an employer reassign a qualified person with a disability to a vacant position.
  4. As part of an employer’s duty to accommodate by means of job reassignment, an employer is required to identify the full range of alternative positions for which the individual satisfied the employer’s legitimate nondiscriminatory prerequisites. It also must consider transferring the employee to any of these other jobs, including those representing a demotion. In other words, the employer has a duty to assist with identifying open positions as part of the interactive process following an employee’s request for reasonable accommodations.
  5. The employer here responded to plaintiff’s request for reassignment by telling him that since his restrictions were permanent they were unable to accommodate and terminated him with no further action or communication. Those allegations plausibly reflect that the employer did not communicate with the plaintiff and attempt to ascertain whether he had a position available for what the plaintiff might have been qualified. Accordingly, such conduct may amount to refusal to engage in the interactive process. Plaintiff also made allegations that the employer had to have had a position that he was qualified for due to the nature of its operations and his working relationship with numerous locations of his employer.
  6. Since the employer did not engage in the interactive process, plaintiff was not required to actually identify in his complaint an open position at his employer. Instead, at this stage it was sufficient for the plaintiff the state that it was plausible that his employer had open positions and had refused to engage in the interactive process so as to deprive him of the opportunity to explore open positions as a reasonable accommodation.
  7. If discovery reveals no vacant position existed to which plaintiff could have been reassigned to, the employer is free to bring up that fact at summary judgment proceedings. In a footnote, the court notes that whether a vacant position exists is determined at the time the employee requested reassignment to that position.

 

VI

Plaintiff Did Adequately Request an Accommodation

 

  1. A request as straightforward as asking for continued employment is a sufficient request for accommodation.
  2. The allegations in the complaint are clear that plaintiff made a request for continued employment and sought reassignment to another position.

 

VII

Thoughts/Takeaways

 

  1. For many years now, whenever working is alleged as a major life activity, it essentially becomes an SSDI analysis. This case says that isn’t correct. Here, the focus by the court was on the type of job that the person had and then they extended that across industries. Even so, a plaintiff attorney makes a serious mistake by alleging working as a major life activity due to the broad class of jobs standard interpretation over the years. It also isn’t necessary as a general rule in light of the amendments to the ADA.
  2. The Seventh and Eighth Circuits are extremely aggressive about employers having the obligation to reassign an individual to a vacant position they are qualified for if they are no longer qualified for their current position.
  3. For regarded as claims, it is no longer after the amendments to the ADA necessary to show that the employer believed a major life activity was substantially limited. All a plaintiff has to show is that the employer regarded the person as suffering from a mental or physical impairment.
  4. A person claiming regarded as discrimination is not entitled to reasonable accommodations.
  5. In the Seventh and Eighth Circuits, the employer has an obligation, especially when asked, to identify open positions as part of the interactive process. In the 11th Circuit, as we discussed here, the rule is quite a bit different.
  6. A bit strange to me that the termination notice said that because the restrictions were permanent, the employer was unable to accommodate. The permanency of the restrictions should not matter. The question is whether the person can do the essential functions of the job with or without reasonable accommodations. Also, ignoring the reassignment option is a recipe for disaster.
  7. The case law is very clear that reassignment is an option of last resort.
  8. Of course, plaintiff will have to get by the summary judgment motion later but for now plaintiff lives for another day.
  9. Magic words are not required.
  10. This is not the first case that has said that asking for continued employment is a sufficient request for accommodations.

Previously, such as here, I have written about how Batson/Edmonson challenges could be used with respect to people with disabilities not being allowed to serve on juries. The interesting thing about Batson and its civil equivalents is that whenever I have asked litigators if they have encountered the situation of using Batson to prevent exclusion of persons with disabilities from serving on juries, they tell me they have not. On November 7, 2022. The Court of Appeals of the State of California, Second Appellate District, in Unzueta v. Akopyan, a published decision, here, holds that under California law people who associate with persons with disabilities have a right to be free from discrimination in jury selection. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning that trial court erred in denying the Batson/Wheeler challenges; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

Plaintiff alleged in her complaint that the defendant, the anesthesiologist during the birth of her child, negligently administered an epidural injection resulting in the paralysis of plaintiff’s right leg below the knee. Plaintiff lost at trial and appealed. On appeal, the appellate court held that the trial court erred in denying Batson/Wheeler (Wheeler is the California equivalent of Batson), challenges and said that the trial court had to revisit each of the challenged jurors to see if impermissible discrimination had occurred. If such impermissible discrimination occurred, the trial court was to reinstate the judgment. On remand, defendant’s attorney asserted that two of the prospective jurors were excluded because they had a family member who was disabled and the attorney feared the family member’s disability would cause the particular juror to be biased in favor of the plaintiff. One of the prospective jurors had a child with a disability. The other prospective juror had a husband who was disabled, unable to work, and had an outstanding Worker’s Compensation matter. The trial court found those justifications to be race neutral and plaintiff appealed saying that excluding the two prospective jurors based upon the disabilities of their family members was by itself discrimination based upon protected characteristics and therefore impermissible.

 

II

Court’s Reasoning That Trial Court Erred in Denying the Batson Challenges

 

  1. While peremptory challenges are a long-standing feature of both the civil and criminal systems in America, the exercise of even a single peremptory challenge solely on the basis of race or ethnicity offends the guarantee of equal protection of the laws under the 14th amendment to the U.S. Constitution. It also violates a defendant’s right to trial by a jury drawn from a representative cross-section of the community under the California Constitution.
  2. The prohibition against the exercise of peremptory challenges to include prospective jurors on the basis of group bias applies to both civil and criminal cases.
  3. Excluding evening a single prospective juror for reasons impermissible under Batson/Wheeler requires reversal.
  4. The three-step process for evaluating a Batson/Wheeler motion works like this: 1) the party objecting to the strike must establish a prima facie case by showing facts sufficient to support an inference of discriminatory purpose; 2) if the objector succeeds in establishing a prima facie case, the burden shifts to the proponent of the strike to offer a permissible nonbiased justification for the strike; and 3) if the proponent does offer a nonbiased justification, the trial court must decide whether that justification was genuine or instead whether impermissible discrimination impact motivated the strike.
  5. At the second step of the Batson/Wheeler analysis, the party exercising the peremptory challenge cannot justify an allegedly impermissible challenge with a different impermissible justification (i.e. that two of the six jurors had family members with disabilities). In other words, getting past the second step is not going to happen if what is happening is the substitution of an impermissible justification for another.
  6. When the trial court makes a sincere and reasoned effort to evaluate the proffered reasons for the strike, the reviewing court defers to its conclusions on appeal and examines only whether substantial evidence supports them.
  7. Batson/Wheeler challenges are subject to independent review on appeal.
  8. The United States Supreme Court has extended Batson/Wheeler motions to prevent the exercise of peremptory challenges to those based upon gender.
  9. The California Constitution prohibits the use of peremptory challenges on account of bias against an identifiable group distinguished on racial, religious, ethnic, or similar grounds.
  10. In 2000, California legislature expanded the list of groups subject to a Batson/Wheeler motion to race, color, religion, sex, national origin, sexual orientation, or similar grounds.
  11. In 2015, the California legislature expanded the list further by referencing §11135 of the Government Code, which specifically references mental disability, physical disability, genetic information, and medical condition among other things. §11135(d) also applies to people who associate with a person who is perceived or has any of the characteristics listed in the Government Code.
  12. Taking the 2000 and 2015 amendments together, means using peremptory challenges to exclude prospective jurors on the basis a person with whom the juror is associated with has a disability is impermissible.
  13. In a footnote, the court noted that it was clear from the legislative history that the intent of the 2000 and 2015 amendments was to align the limitations on peremptory challenges with California law prohibiting other forms of discrimination by the state, a state agency, or entities funded by the state.
  14. No dispute exists that the justification for excluding two of the jurors was their association with family members with disabilities. In fact, the attorney on remand focused specifically on the disability of the family members. The trial court in ruling on the motion likewise relied on the disability of the family members.

 

III

Thoughts/Takeaways

 

  1. While I received my J.D. degree from the University of San Diego (I also have an LL.M. in health law from Depaul), I never took the California bar. So, I am not licensed in California. Much of this decision turns on California law. When it comes to the rights of people with disabilities in California, it is important to get a California licensed attorney involved, particularly with California’s Unruh Act often being in play.
  2. As the court points out in a footnote, the United States Supreme Court and federal courts have yet to expand Batson/Wheeler to peremptory challenges based on a prospective juror’s disability. In fact, the two cases cited in the footnote by the court are cases that I have mentioned in blog entries previously here and here. The court also notes that the California Supreme Court has not addressed the application of Batson/Wheeler to jurors based upon their disability or the disability of a family member.
  3. The Second Court of Appeals talks about sole cause and it also talks about permissible reasons motivating a strike. The use of both terms in its opinion raises the question of whether Batson/Wheeler challenges in California turn on sole cause or motivating factor (I am not a licensed attorney in California). At the federal level, it would seem after Bostock v. Clayton County, Georgia, that sole cause would not be the standard.
  4. While the United States Supreme Court has not specifically weighed in on whether Batson and its civil progeny, Edmondson, applies to persons with disabilities, a plain reading of Tennessee v. Lane, which we have discussed many times, such as here, would suggest that the only logical conclusion is that Batson does apply.
  5. A plain reading of Bostock v. Clayton County, Georgia, which we discussed here, also suggests that Batson challenges would be in play for the LGBTQ community as well.
  6. The case serves as an important reminder that state laws can go further than federal laws.
  7. The disadvantage of Batson is that it relies on attorneys to make the challenge. The prospective juror has no ability to do it themselves.
  8. Another case involving a person with a disability wanting to serve on a jury is the Fifth Circuit decision in Crawford v. Hinds County Board of Supervisors, here. In that case, the Fifth Circuit said that because there was a likelihood the person with a disability would be called for jury duty to serve in an inaccessible courthouse, that gave him standing to pursue a disability discrimination claim. That case subsequently settled.

In numerous blog entries, we have talked about how magic words are not required. We have also talked about staying away from requests for excessive documentation. The question is how do the two work together. A published decision from the 11th Circuit decided on November 9, 2022, Owens v. State Of Georgia, Gov.’s Office Of Student Achievement, here, addresses both of those questions. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning explaining what an employee must do to show that a requested accommodation is reasonable; court’s reasoning that employer was within its rights to request additional information; court’s reasoning that plaintiff’s retaliation and pregnancy discrimination claims fail; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

Following a C-section in July 2018, plaintiff informed her employer that she would need to work remotely for several months. In support of that requests, plaintiff provided her employer with two notes from her physician, which noted a C-section delivery, stated she was doing well, and concluded that she may telework until November 2018. Plaintiff separately informed her employer that she was seeking telework due to childbirth -related complications but provided no detail about the nature of those complications or how they would be accommodated by teleworking. Finding that information insufficient to support plaintiff’s accommodation request, her employer asked the plaintiff to either submit additional documentation or return to the office. At that point in time, her employer started making plans to figure out how the telework would work assuming the additional documentation was submitted. Plaintiff failed to submit additional documentation or return to the office. As a result, her employer terminated her employment.

 

II

Court’s Reasoning Explaining What an Employee Must Do to Show That a Requested Accommodation Is Reasonable

 

  1. Case law and the statutory text of the ADA (the Rehabilitation Act and the ADA get interpreted the same way), established that an employee must identify her disability before an employer is obligated to engage in the interactive process about accommodating that disability.
  2. For a plaintiff to sustain a prima facie case of disability discrimination, there has to be proof that her employer knew of her disability.
  3. The Rehabilitation Act text imposes a duty on employers to accommodate only the disability known to them.
  4. Identifying a disability in most cases means the employee provides at least some information about how a physical or mental condition limits her functioning.
  5. The ADA requires employers to make reasonable accommodation only to the physical or mental limitations caused by the employee’s physical or mental condition.
  6. Putting in employer on notice of a disability means an employee must identify at least in broad strokes the limitations her mental or physical condition imposes.
  7. An employee must provide her employer enough information to assess how her proposed accommodation would help her overcome (court’s actual word), her disability’s limitations.
  8. An accommodation qualifies as reasonable only if it enables the employee to perform the essential functions of the job.
  9. The same accommodation might be appropriate for one disability and inappropriate for another, and the same disability may require different accommodations for different employees.
  10. An employee must link her disability to her requested accommodation by explaining how the requested accommodation could alleviate the workplace challenges posed by her specific disability.
  11. Employees must give employers enough information to respond effectively to an accommodation request.
  12. When an employee triggers an employer’s accommodation duties, the employer has to expend time and expense exploring the universe of reasonable accommodations, identifying one that is mutually agreeable to the parties, and implementing it. To begin that interactive process, the employer needs information about the nature of the individual’s disability and the desired accommodation.
  13. The link between the disability and the requested accommodation may often be obvious. So, an employee confined to a wheelchair would hardly need a doctor’s report to show she needed help in getting to her workstation if it were accessible only by climbing a steep staircase. In other circumstances, the link between a person’s limitations and the requested accommodation will be unclear without additional information. Since that information is typically possessed only by the individual or her physician, it is reasonable that the employee inform her employer how the accommodations she seeks will address her limitations before requiring the employer to initiate the interactive process.
  14. The court expects an employee’s informational burden to be modest. Vague or conclusory statements revealing an unspecified incapacity are not sufficient to put an employer on notice of its accommodation duties. On the other hand, an employee is not required to provide her employer with detailed or private information about a disability to initiate the employer’s duty to engage in an interactive process about the need for an accommodation.
  15. To trigger an employer’s accommodation duties, an employee with a disability only has to identify a statutory disability and explain generally how a particular accommodation would assist her.

 

II

Court’s Reasoning That Employer Was within Its Rights to Request Additional Information

 

  1. Courts and regulators have recognized that neither childbirth nor pregnancy is a disability. That said, pregnancy or childbirth -related impairment can be a disability only if that impairment substantially limits a major life activities. However, childbirth and pregnancy themselves are not disabilities.
  2. Although plaintiff unspecified childbirth related complications may have caused the disability, she never identified what the disability was. She did talk about medical procedures and treatments but not disabilities. There is no obvious limitation on functioning arising from having a C-section or a blood transfusion five or six weeks earlier.
  3. In addition to failing to identify a disability, plaintiff also failed to explain to her employer why teleworking would accommodate her disability. Although her physician’s recommendation that she telework qualifies as a demand for a specific accommodation, it does not explain how the accommodation would alleviate any physical or mental limitation.
  4. The information plaintiff provided to her employer amounts to nothing but vague or conclusory statements revealing an unspecified incapacity. Such information is not enough to trigger an employer’s duties to engage in the interactive process under the Rehabilitation Act.
  5. It isn’t necessary to decide whether plaintiff’s claim fails on the ground that she caused the breakdown in the interactive process in light of the fact that sufficient information and documentation to start the interactive process was not given by the plaintiff to her employer in the first place.

 

III

Court’s Reasoning That Plaintiff’s Retaliation and Pregnancy Discrimination Claims Fail

 

  1. Both the retaliation claim and the pregnancy discrimination claim are governed by McDonnell Douglas fee shifting paradigm. That paradigm requires a plaintiff to establish a prima facie case. If the plaintiff does that, then the burden of production shifts to the employer to articulate a legitimate, nondiscriminatory reason for its actions. Once the employer does that, the burden then shifts back to the plaintiff to show that the reason given by the employer was a mere pretext for discrimination. The ultimate burden of persuasion is always on the employee.
  2. Establishing pretext and avoiding summary judgment means the plaintiff must present significant probative evidence sufficient to permit a reasonable factfinder to conclude that the discriminatory animus was the but for cause of the adverse employment action. That means the plaintiff has to show that the evidence reveals such weaknesses, possibilities, inconsistencies, and coherency, or contradictions in the employer’s proffered legitimate reasons for its actions that a reasonable factfinder could find them unworthy of credence.
  3. An employer may fire an employee for a good reason, bad reason, a reason based on erroneous facts, or for no reason at all, so long as its action is not for discriminatory reason.
  4. If the evidence shows that the employer was dissatisfied with the plaintiff for nondiscriminatory reasons, even if mistakenly or unfairly so, the employer is entitled to summary judgment.
  5. Plaintiff has not shown that being fired for failing to return her reasonable accommodation paperwork or for failing to return to the office as requested was pretextual.
  6. Plaintiff’s failure to provide her employer with sufficient information to allow it to adequately assess her accommodation request meant that her employer was within its rights to request additional information from the plaintiff before deciding to approve her teleworking accommodation.
  7. The evidence establishes that her employer fired the plaintiff not for any discriminatory reason but rather because the plaintiff kept her employer in the dark as to when it could expect to receive her paperwork and what the paperwork would reveal about her medical condition. She never communicated with her employer directly about how telework would reasonably accommodate any childbirth -related disability. She also failed to submit a medical release that would have authorized the employer to contact her doctor directly. Finally, she did not share with her employer that her doctor had a 20 day turnaround for paperwork request.
  8. An employer is not required to wait indefinitely for necessary information supporting an accommodation request.
  9. Employer had good reason to believe, even if it was mistaken, that plaintiff had been medically released to return to work.

 

IV

Thoughts/Takeaways

  1. Putting an employer on notice means giving the employer notice of the disability in broad strokes of the limitations the mental or physical condition imposes.
  2. The court uses an unfortunate choice of words when it says that an employee must provide her employer enough information to assess how her proposed accommodation would help her “overcome,” her disability’s limitations. The use of the word “overcome,” is unfortunate because you cannot overcome a disability. You can manage it. You can also compensate for it. Overcoming a disability is not a thing. Most disabilities cannot be entirely fixed or cured. Even if they can, that is a personal question for the particular individual as to whether they want to go down that route. For example, I have no desire to fix or cure my deafness. I do compensate for my deafness with Bluetooth technology, lip reading, and advanced hearing aids but none of that is fixing or curing it.
  3. Identifying a disability means providing at least some information about how a physical or mental condition limits functioning.
  4. Accommodation qualifies as reasonable if it enables the employee to perform the essential functions of the job. The particular statement “enables the employeee…,” is a huge victory for persons with disabilities because it is the disability being accommodated and not the essential functions of the job.
  5. The court is absolutely right that the whole reasonable accommodation process is very individually based and one size does not fit all even when the same disability is involved.
  6. An employee has to link her disability to her request for the accommodation by explaining how the requested accommodation alleviates the workplace challenges posed by her specific disability. This is another big victory for persons with disabilities because it again says that it is the disability being accommodated and not the essential functions of the job.
  7. If the disability is obvious and the accommodation is also obvious, and employer needs to be very careful about what additional information it seeks. The EEOC guidance is consistent with what the court says on this point. If more documentation is needed, keep it narrowly focused and do not go on fishing expeditions. The court talks about seeking information that talks about how the accommodations address the employee’s limitations. Again, the focus is on the disability and not on the essential functions of the job. See also this blog entry.
  8. Vague and conclusory statements do not work with respect to triggering the interactive process, but the informational burden is not a high one.
  9. Considering the amendments to the ADA, identifying a statutory disability is not a high bar.
  10. Pregnancy and childbirth are not disabilities but they can give rise to conditions that are.
  11. Remember, that temporary disabilities can be actual disabilities under the ADA as amended.
  12. While it is true that whoever breaks down the interactive process loses, the plaintiff still has to provide sufficient information for the interactive process to start and to go forward.
  13. This was a case where the honest belief rule, which we discussed here, was in play and benefited the employer.
  14. Communication between the employee and the employer is always important.
  15. But for causation does not mean sole cause anymore, rather per Bostock, here, it means determining factor.
  16. The language used by the court in this opinion suggests that the plaintiff has a relatively high bar to get by summary judgment with respect to showing that an employer acted with pretext.
  17. The court’s focus on accommodating the disability is a huge victory for employees with service animals, and perhaps even emotional support animals, because those animals are most certainly accommodating the disability regardless of whatever the essential functions of the job may be.

Today’s blog entry deals with two decisions from the U.S. Court of Appeals for the Second Circuit dealing with essentially the same fact pattern. One decision, Williams v. MTA Bus Company, here, is a published decision decided August 12, 2022, while the other decision, Frilando v. New York City Transit Authority is a summary order decided on August 19, 2022, here. Both decisions have the potential to set back the ability of Deaf, deaf, and HOH individuals to be employed. I don’t see why the decision don’t have the ability to set back people with other kinds of disabilities from being employed as well. The facts are substantially similar. Both cases involve culturally deaf individuals seeking employment. Both cases involve exams needing to be taken in order to see if they were qualified for that job. Both cases involve a refusal to have an interpreter to interpret the examination and its instructions. The panel for Williams was Cabranes, Raggi, and Carney. The panel for Frilando was Cabranes, Lynch, and Chin. As usual the blog entry is divided into categories and they are: court’s reasoning in Williams; court’s reasoning in Frilando; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Court’s Reasoning in Williams

 

  1. Only qualified individuals can establish a disability discrimination claim.
  2. The term “qualified individual,” appears in the statutory section, 42 U.S.C. §12112(a), talking about how a person cannot be discriminated against on the basis of disability with respect to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment. Through the use of the term “qualified individual,” means that a person has to be able to perform the essential functions of the employment position.
  3. 42 U.S.C. §12112(b) references 42 U.S.C. §12112(a). Therefore, the term “qualified,” is equally applicable in that section as well.
  4. Doesn’t make sense that Congress would intend to permit individuals who are not qualified for their desired employment positions to maintain action for some types of employment related discrimination but not for others. Therefore, Congress intended the “qualified individual,” requirement to apply to all forms of employment discrimination under 42 U.S.C. §12112.
  5. Reading 42 U.S.C. §12112 to maintain the “qualified individual,” requirement is consistent with both the ADA and the Rehabilitation Act taken as a whole.
  6. 42 U.S.C. §§12111, 12112 work together. So, considering the interactive relationship between those two provisions, it would be nonsensical to disregard the term “qualified individual,” when reading 42 U.S.C. §12112(b)’s subparts rather than reading it all together so that only “qualified individuals,” may bring claims based upon discriminatory acts enumerated in 42 U.S.C. §12112.
  7. 504 of the Rehabilitation Act, 29 U.S.C. §794, echoes that only an “otherwise qualified individual,” can sustain a discrimination claim under that section.
  8. Since the statutory sections are clear, the EEOC guidance does not come into play. However, even if it were to come into play you still get to the same endpoint. The EEOC guidance said that an employer must provide a reasonable accommodation to a qualified applicant with a disability that will enable the individual to have an equal opportunity to participate in the application process and to be considered for the job. Accordingly, it is fair to read the guidance to say that before an employee can prevail on its failure to provide accommodations during the application process, the plaintiff must show that he was qualified for the employment position at issue.
  9. The portion of the EEOC guidance does not address the employer’s obligation regarding an applicant who cannot perform the essential functions of the position regardless of any on-the-job accommodations, and therefore is another reason why the EEOC guidance is of little assistance.
  10. Taking a test to see if they are qualified for certain jobs is not an employment position and therefore the test-taker is not entitled to accommodations in the test taking process if they are not qualified for the employment position they are seeking.
  11. An employer is perfectly within its rights to mandate that the applicant evaluate his qualifications for the job before seeking accommodation for exams. An employer does not have to allow a person to take exams for job that they are not qualified for. In other words, an applicant cannot sue successfully a potential employer under 42 U.S.C. §12112 when the individual is facially not qualified for the position sought at the time of the preemployment test.
  12. Williams simply did not have the education or experience requirements necessary for the jobs that he wanted to take the exams for.
  13. In the Second Circuit, an employer’s failure to comply with the interactive process requirement is not an independent cause of action under the ADA.

 

II

 

Court’s Reasoning in Frilando

 

  1. Plaintiff applied for the jobs of train operator, track worker and bus operator.
  2. Defendants offered to provide ASL interpretation for the exam instructions but refused to provide interpretation for the exam questions and answers.
  3. The term “qualified,” applies not just to current employees but to job applicants as well.
  4. When assessing whether a person is otherwise qualified for a job, a court must give considerable deference to an employer’s judgment regarding what functions are essential for a particular position.
  5. In a four day bench trial, the District Court found that the ability to communicate in English and the ability to hear sounds were essential functions of all three positions. Plaintiff was not qualified for any of the positions because he could not be understood in spoken English and also did not understand spoken English. He also did not have the minimum hearing standard for any position.
  6. Test taking is not an employment position. Therefore, plaintiff is out of luck for a failure to accommodate claim with respect to taking the test necessary to qualify for the various jobs.

 

III

Thoughts/Takeaways

 

  1. I often say in my trainings that an employer makes a big mistake by focusing on major life activities as an essential function of the job. These two cases say that the employer may get away with taking that considerable risk if it chooses to use a major life activity as an essential function of the job. That said, taking this approach is lousy preventive law. An employer will go much further in preventing litigation and successfully defending lawsuits when there is litigation, if the essential functions of the job do not include a major life activity.
  2. On the plaintiff side, the argument to make is that hearing is not the essential function of the job but being able to communicate is. That is an argument the plaintiff successfully made in the case we discussed in the blog entry involving Johns Hopkins, here. The Johns Hopkins case is also a cautionary tale for an employer insisting on a major life activity being an essential function of the job.
  3. Neither of the decisions are published (one is not published and the other is a summary order).
  4. In footnote 16 of the Williams decision, the court says that the employer by not evaluating the plaintiff’s qualifications before refusing to provide him with an ASL interpreter for the exam, ran the risk of denying a reasonable accommodation to a qualified individual that would have rendered the company liable for disability discrimination. Also, courts should not bless off blanket denials of accommodation by accepting specious explanations why applicants with disabilities may ultimately not be qualified for a position.
  5. Both of these cases give employers a tool now to prevent Deaf individuals in particular from even getting considered for a particular job because accommodations do not have to be offered for any testing for those jobs unless they can do the essential functions of the job first.
  6. The Second Circuit decisions play down considerably the obligation of the employer to provide reasonable accommodations. Remember, reasonable accommodations can either be in the title I context a logistical or financial undue hardship. Per 42 U.S.C. §12111(10)(B), financial undue hardship looks to the entire operations of the entity, while logistical undue hardship looks to whether essentially the nature of the business is fundamentally altered.
  7. A sign language interpreter does not do the job for a Deaf individual, rather they are just enabling communication. That said, I could see logistical undue hardship questions and possibly financial undue hardship questions as well arising depending upon the situation.
  8. Before employers just start adopting including major life activities as essential functions, mandatory reading is this blog entry. Plaintiff lawyers need to make that blog entry mandatory reading as well after these two cases.
  9. Deaf individuals frequently do not read above a fourth grade reading level because ASL is a completely different kind of language than English. It is of course a visual language and its structure is entirely different, based on French. Therefore, a Deaf person is equally unlikely to understand the exam questions as they are the instructions themselves. As such, granting ASL for instructions but not for exam questions means it is still the disability being evaluated rather than the person’s abilities.
  10. A qualified interpreter for the Deaf is strictly a communication vehicle and is not offering their own view on anything.
  11. Remember whether a person is qualified for a particular position depends upon whether they can do the essential functions of the job WITH or without reasonable accommodations.
  12. Undue hardship is an affirmative defense, though the burden of proof can get complicated with respect to whether a person is qualified or not per the ADA.
  13. Depending upon the circuit, failure to engage in the interactive process may or may not be a separate cause of action. That said, the trend is certainly in favor of a failure to accommodate being a separate cause of action.
  14. I don’t see why these decisions necessarily get limited to hearing. Why not walking or seeing, smelling, etc.?
  15. It will be interesting to see both how other circuits deal with this issue as well as how the EEOC reacts to these decisions going forward.

I was alerted to today’s case, Bledsoe v. Tennessee Valley Authority Board of Directors, a published decision from the Sixth Circuit decided on July 27, 2022, by Jon Hyman, the person behind the Ohio Employers’ Law Blog, who blogged on the case here. As is often the case, I don’t mind blogging on cases blogged upon by others if I feel like I can offer another perspective. So, here goes. As usual, the blog entry is divided into categories and they are: facts; majority reasoning that §501 causation is not the same as §504 causation; majority reasoning that the honest belief rule only goes so far and does not come into play when Cat’s Paw is involved; majority’s reasoning that district court incorrectly dismissed plaintiff’s retaliation claim; dissenting opinion; and thoughts/takeaways. Of course the reader is free to focus on any or all of the categories. As a side note, the majority opinion spends quite a bit of time on direct evidence and indirect evidence (we have talked about the direct evidence and indirect evidence conundrum before, such as here), but we are not going to get into that in this blog entry as it isn’t necessary for the issues that I want to zero in on.

 

I

Facts

 

In May 2015, the Committee appointed Bledsoe to be an NSGPO instructor. In that role, Bledsoe developed lessons, exams, and course materials. Bledsoe collaborated with both licensed and non-licensed instructors in all the training programs. Jeremy Bailey oversaw Bledsoe’s day-to-day activities in the non-licensed training program. Beginning in January 2017, Christopher Dahlman, Bailey’s supervisor, managed all training programs at the Sequoyah Training Center as the Operations Training Manager.

Bledsoe took medical leave in October 2016 to manage his liver cirrhosis. In February 2017, Bledsoe returned to work after receiving a liver transplant. Bledsoe’s condition required him occasionally to use a cane and to take medications, which he kept on his desk.

Shortly after Bledsoe returned to work, Dahlman began to comment on Bledsoe’s health and age.  Beginning in April 2017 and continuing into January 2018, Dahlman berated  Bledsoe about his disability and pressured him to retire.  The following incidents are only some examples of Dahlman’s behavior:

  • After asking Bledsoe to show him his progress in updating lesson plans, Dahlman told Bledsoe, “if you’re not at 100 percent, I can’t use you.” Dahlman then asked Bledsoe about the medications that Bledsoe kept on his desk. When Bledsoe explained that the medications treated his liver condition, Dahlman repeated, “[y]ou’ve got to be 100 percent for this job.” This was not the only time that Dahlman asked Bledsoe about his medications and their effect on his job.  One day, after asking Bledsoe to remove his medications from his desk, Dahlman asked Bledsoe, “[j]ust how disabled are you?”

 

  • While discussing lesson plans in November 2017, Dahlman again asked Bledsoe, “[a]re you 100 percent yet?” When Bledsoe responded that he was “getting there,” Dahlman replied, “[t]hat’s not good enough … I’m tired of disabilities and I’m tired of medical problems.”

 

  • Dahlman asked Bledsoe whether he had other disabilities, demanded that Bledsoe tell him about them “in detail,” and asked Bledsoe whether he was “eligible for disability.”  After Bledsoe told Dahlman about some of his medical problems, Dahlman responded that he was not “running a rehabilitation clinic.”

 

  • Dahlman asked Bledsoe his age and told him numerous times that he should consider retiring.  These suggestions eventually turned into a command. Dahlman told Bledsoe, “you need to go ahead and retire…. I’m concerned about this disability you have, your condition with your liver.”

 

  • In October 2017, after asking about Bledsoe’s lesson planning progress, Dahlman commented, “I think your disability is slowing all this down…. You’re really too old to be doing this.”

 

  • In January 2018, Dahlman questioned Bledsoe’s ability to teach. Again, after discussing Bledsoe’s lesson-plan progress, Dahlman asked, “Are you even going to be able to teach? … I wouldn’t think with your condition and—your medical condition and your age that you would want to teach.”

 

  • Dahlman also warned Bledsoe multiple times not to “piss [him] off,” telling Bledsoe that he was “vindictive” and “not patient. On one occasion, Dahlman told Bledsoe, “if you piss me off, you’re not going to be working over here. I’m just telling you.”

TVA employees observed Dahlman make similar comments related to age or disability about Bledsoe and others.

When plaintiff’s son applied for a position and classes, that created a possible conflict of interest. Plaintiff alerted his employer about that possible conflict of interest. Instead of seeking an opinion regarding the possibility of transferring the plaintiff to a different program or having him teach another non-licensed training class that his son was not in, he was told that such a transfer was not a viable option. Eventually a committee met, which included the person, Dahlman, who had made the series of disparaging comments against him, noted above, and the committee decided to demote him and reduce his salary by $28,000. Plaintiff then filed a formal complaint with the TVA’s equal opportunity commission and then a complaint in court alleging violations of the Age Discrimination in Employment Act as well as the Rehabilitation Act. District court granted summary judgment for the employer and plaintiff appealed.

 

II

Majority (Judge Moore) Opinion That §501 and §504 Causation Are Not the Same

  1. Understanding the differences between §501 and §504 of the Rehabilitation Act means examining the Rehabilitation Act’s structure and history.
  2. The first version of §501 required that federal agencies adopt affirmative action plans to hire and advance opportunity for individuals with disabilities.
  3. 504 prohibits private entities receiving federal funds from discriminating solely by reason of the disability.
  4. Although neither §501 nor §504 contained a private cause of action for federal employees at the time of enactment, all courts interpreting the Rehabilitation Act read an implied right of action into §504 but not into §501. To remedy that situation, Congress then codified a private right of action for federal employees under §501 but could have been more clear when doing so. In particular, the Senate added §504 to the Rehabilitation Act, what is now known as 29 U.S.C. §794a, which extended the remedies under title VII of the Civil Rights Act of federal employees bringing claims under §501. The Senate amendment also extended the remedies available under title VI of the Civil Rights Act to claims brought under §504. Finally, the House amendment extended §504 to any program or activity conducted by an Executive agency or by the United States Postal Service from discriminating solely by reason of disability. When strengthening the two provisions of the Rehabilitation Act, Congress could have chosen to eliminate the partial overlap between the two, but decided not to despite the overlap.
  5. In the Sixth Circuit, it has long held that persons alleging disability discrimination in employment may maintain private cause of action against their employers under both §501 and §504 of the Rehabilitation Act.
  6. The Fifth Circuit has addressed causation with respect to §501 and §504 and is the only circuit to do so. The Fifth Circuit noted that §501(f) incorporates the standards of title I of the ADA to determine whether §501 had been violated and therefore applies the ADA’s causality standard to §501 claims. The Fifth Circuit noted that the ADA, which was passed in 1990, excludes the federal government from coverage. The 1992 Rehabilitation Act amendments sought to expand ADA protection to federal employees. The Fifth Circuit also noted that the EEOC regulations implementing §501 of the Rehabilitation Act incorporate ADA standards.
  7. Causality is clearly a standard used to determine whether §501 has been violated so §501(f) of the Rehabilitation Act instructs the court to apply ADA causality standards. In other words, §501 of the Rehabilitation Act already describes the standard for causation.
  8. 501 and §504 of the Rehabilitation Act sensibly employ different causality standards because they are distinct sections of the Rehabilitation Act.
  9. The Supreme Court has recognized the distinction between §501 and §504 when it held that a plaintiff could recover monetary damages against the federal government under §501 but not §504 because Congress only waived its sovereign immunity with respect to §501.
  10. 501 and §504 have different purposes. §501 imposes affirmative action obligations going beyond the obligations set forth in §504 which only requires nondiscrimination.
  11. The affirmative action duty Congress chose to impose upon only federal employers under §501 means it is easier for federal employees to prove discrimination then for private employees.
  12. Considering Congress’s “belt and suspenders,” approach to expanding federal employee rights, the majority opinion declined to hold federal employees to a more stringent causality standard than employees of private entities receiving federal funding.
  13. Congress has clearly delineated two separate causes of actions under two separate provisions of the Rehabilitation Act. Under §501, but for is the causation standard.

 

III

 

Honest Belief Rule Does Not Extend to Situations Where Cat’s Paw Is Involved

  1. The honest belief rule does not result in a get out of jail free card for every employment discrimination action.
  2. Applying the honest belief rule only makes sense when a plaintiff relies solely on an irrational basis for an employer’s action to demonstrate pretext.
  3. In this case, plaintiff relies both on the existence of reasonable alternatives to the demotion as well as on evidence of a particular employees negative animus and influence on the committee that made the ultimate decision under a cat’s paw theory.
  4. When a plaintiff invokes the cat’s paw theory, the honesty or the sincerity of the decision-maker’s belief is irrelevant. Instead, what is relevant is that the belief is rooted in a biased recommendation. Indeed, a cat’s paw theory is premised upon an unbiased decision-maker and therefore always involves a decision-maker with sincere beliefs.
  5. Another way to look at it is that the honest belief rule not defeat a cat’s paw theory because the bias of the influencing employee influences the otherwise neutral decision. It therefore follows that an employer may still raise the honest belief rule if the decision-maker conducts an in-depth and truly independent investigation showing that the adverse action is warranted for reasons unrelated to the bias. Such an independent investigation defeats a cat’s paw claim only when the investigation determines that the adverse action was apart from the supervisor’s recommendation, entirely justified.
  6. To the extent that the decision-making committee investigated alternatives, the participation of the employee who made the disparaging comments negates any such independence and foreclosed its application of the honest belief rule.
  7. Plaintiff also offered evidence that other instructors had sons entering various training programs and were not subjected to an ethics inquiry much less demoted. Whether this particular evidence is sufficient to demonstrate pretext, will mean the plaintiff showing that the comparator is similar in all relevant respects and is a jury question. The evidence produced by the plaintiff, which showed that the licensing and non-licensing programs were similar in all relevant respects, certainly passes that bar for a jury to consider it.

 

IV

Majority’s Reasoning That The District Court Incorrectly Dismissed Plaintiff’s Retaliation Claim

 

  1. To establish a claim for retaliation, a plaintiff has to show: 1) he was engaged in a protected activity; 2) the defending party was aware that the plaintiff had engaged in that activity; 3) the defending party took an adverse employment action against the employee; and 4) there is a causal connection between the protected activity and the Emperor’s action.
  2. Plaintiff produce both evidence of temporal proximity as well as other evidence of retaliation. For example, only three months passed between plaintiff’s complaint and his demotion. Plaintiff also offered several statements showing discriminatory animus. So, a reasonable juror could believe that testimony and conclude that retaliation motivated one of the committee members to influence the others.
  3. With respect to pretext, the same facts supporting plaintiff’s discrimination claims also supported the retaliation claim.

 

V

Dissenting Opinion by Judge Nalbandian

 

  1. Cat’s paw theory of liability is not involved in this case.
  2. Agrees with the principle that the cat’s paw theory when it is involved defeats the honest belief rule.

 

VI

Thoughts/Takeaways

 

  1. This is not the first time we have brought up the issue in the blog about whether §501 causation and §504 causation on the same. In this blog entry we talked about a decision written by now Justice Brown-Jackson when she was a district court judge where she conflated §501 and §504 causation.
  2. Interesting that the case does not talk about hostile work environment, which certainly seems to have been part of the situation here, as Jon clearly zeros in on in his blog entry.
  3. Cat’s paw theory when it applies knocks out the honest belief rule.
  4. In this case, you have both discrimination based upon a disability as well as retaliation. Retaliation is a claim that can stand by itself even where you do not have discrimination based upon a disability.
  5. Independent investigation means exactly that. An employer would be wise to remove employees that are part of the situation from any committee deciding an employee’s fate.
  6. Yesterday, the Supreme Court heard oral arguments on two cases involving whether universities can use racial preferences in admissions. Depending on how those cases are worded in terms of their final decisions, which is very likely to go against use of race in admissions, one wonders what impact that will have on the federal contracting universe. Also, the affirmative action requirement of §501 plays a significant role in the majority opinion. One then also wonders about the effect of the upcoming affirmative action decisions with respect to the issues discussed in this blog entry.

If you have a team in the World Series tonight, good luck. My teams, the Atlanta Braves, Chicago Cubs, or Chicago White Sox are not in it. So, I will just be watching for fun.

 

Today’s blog entry is the introduction of the Websites and Software Applications Accessibility Act by Democratic Senator Duckworth of Illinois and Democratic representative John Sarbanes of Maryland. The Senate version of the bill was referred to the committee on health education labor and pensions. The house version of the bill was referred to the education and labor committee as well as to the judiciary committee. Whether the bill continues to go forward in the shape that it takes may or may not depend upon the results of the elections in a couple of weeks. Keep in mind that disability is not partisan, so it is not easy to tell how the bill will proceed after the election depending upon the result. A whole bunch of disability organizations have gotten behind the bill. Regardless of how the bill moves forward, it is a useful undertaking to explore the bill to see where disability rights oriented legislators and disability rights oriented organizations are going with respect to clearing up the wild West of Internet accessibility (I quite often make presentations on the wild West of Internet accessibility litigation). I will discuss the bill by sections. So, the blog entry is not divided into the usual categories. In each section, I cover the highlights of that section. Where I offer my own thoughts, I will pre-face it with the word “comment.”

 

§2: Findings and Purposes

 

  1. The digital economy accounts for nearly 10% of the United States gross domestic product.
  2. 85% of United States adults visit the Internet at least once per day.
  3. A purpose of the Act is to require websites and applications to be readily accessible and usable by individuals with disabilities regardless of whether the entity has a physical location or is digital only.
  4. Comment: a physical location is no longer required. Therefore, this legislation adopts the approach of the cases saying that title III websites must be accessible to persons with disabilities if what is going on is of the type in 42 U.S.C. §12181(7).
  5. In title III litigation over Internet sites, meaningful accessibility rules. However, this legislation uses the term “readily accessible,” and also references WCAG concepts, as seen below. Both “readily accessible,” and the WCAG concepts are quite arguably different standards than the “meaningful accessibility,” standard that currently prevails.

 

§3: Definitions

 

  1. The term accessible or accessibility borrows heavily from the underpinnings of the WCAG standards. In particular, accessibility means the website is perceivable, operable, understandable, and robust and has to allow persons with disabilities to access the same information, to engage in the same interactions, and to communicate and to be understood as effectively with the same privacy, independence, and ease-of-use as persons without disabilities.
  2. Comment: WCAG is not mentioned but the principles of WCAG underpin the definition of accessible and accessibility.
  3. The term “application,” applies to software as a service. In particular it applies to any software designed to run on a device (including smart phones, tablets, self-service kiosks, wearable technology items, laptops, desktop computers, or another device), that is designed to perform or helps the user perform a specific tasks.
  4. Comment: the Architectural Accessibility Board has issued a notice of proposed rulemaking regarding kiosks. It is not clear how this legislation affects that rulemaking. Of course, there is no guarantee that this legislation will ever turn itself into law or what the final legislation may look like.
  5. “Covered entity,” means an employment entity, public entity, public accommodation, or testing entity.
  6. Comment: §3(5) notably does not use the term, “place of public accommodation.” It is quite clear that §3(5) is talking about entities covered by title I, title II, title III, and §309 of the ADA.
  7. The Act applies to title III entities and to testing entities regardless of whether either owns, operates, or utilizes a physical location for covered use.
  8. Disability tracks the definition of disability in 42 U.S.C. §12102.
  9. Employer tracks the definition in 42 U.S.C. §12111, which means an employer have to have 15 or more employees to be subject to the Act.
  10. The Act applies to unions.

 

§4: Access to Websites and Applications

 

  1. Entities subject to the Act have to ensure that communications with applicants, employees, participants, customers, and other members of the public with disabilities are as effective communications and interactions with individuals without disabilities.
  2. Comment: §4(1) is a clear reference to the DOJ title II and title III effective communication rules. It remains to be seen whether the title III approach, interactive process with the entity making the final call, or the title II approach, primary consideration rule, is what the regulators push.
  3. Undue burden and fundamental alteration are defenses. Presumably, they are affirmative defenses.

 

§5: Rulemaking

 

  1. EEOC gets the responsibility for rulemaking with respect to the employment provisions and DOJ gets go down 50 the responsibility for rulemaking with respect to nonfederal governmental entities and public accommodations (title III entities). In both cases a notice of proposed rulemaking has to occur within 12 months after the enactment of the Act and a final rule must be put in place 24 months after enactment of the Act.

 

§6: Periodic Review

 

  1. Each federal agency receiving complaints or engaging in enforcement must submit a report on the complaints and activities to DOJ and to the EEOC.
  2. DOJ and the EEOC have to update their accessibility regulations every three years following the date of issuance of the initial accessibility regulations.

 

§7: Enforcement and Administrative Action, and Private Right of Action

 

  1. With respect to title II, title III, and §309 entities, DOJ enforces those regulations.
  2. DOJ has the ability to receive complaints and to investigate on its own violations of the Act.
  3. An individual seeking to sue under the Act regardless of the entity involved need not exhaust administrative remedies.
  4. With respect to title I entities, EEOC enforces those regulations.
  5. EEOC has the ability to receive complaints and to investigate on its own violations of the Act.
  6. As with title I of the ADA, if a nonfederal governmental entity is involved, DOJ is the enforcement mechanism on the administrative side.
  7. A plaintiff can get injunctive relief and damages, regardless of context, including compensatory and punitive damages, in a private cause of action.
  8. Comment: interesting question as to whether compensatory damages would include emotional distress, especially after Cummings. It would appear from this legislation that the intent is that emotional distress damages are available.

 

§8: Recommendations

 

  1. The DOJ and the EEOC have to establish a standing advisory committee on accessible websites and applications.
  2. Comment: it is unclear, from a literal review of the Act, whether there are two separate advisory committees or just one. Logically, you would think there would be two separate committees but that is far from clear. See §8(5) below.
  3. The composition of the standing committee is listed out in the Act. Interestingly enough, there is no mention of Deaf only deaf, which are two very different things.
  4. The purpose of the committee is to provide responsive, advice, and guidance to DOJ and the EEOC for carrying out the Act.
  5. The committee has to conduct public meetings twice per year at a minimum; submit reports and recommendation to DOJ and to the EEOC and make those reports and recommendations publicly available every two years at a minimum, and assist the DOJ in the EEOC in identifying and understanding the impact and implications of innovations with regard to accessible websites and applications.

 

§9: Technical Assistance

 

  1. This section of the Act essentially creates a Job Accommodation Network dealing with website accessibility.

 

§10: Study and Report on Emerging Technologies

 

  1. The National Council on Disability has to conduct a study and prepare report on the effect that emerging technologies have on the ability of individuals with disabilities to participate in employment, education, government, healthcare, commerce, culture, and other aspects of society. That report must also report on the effectiveness of the Act in achieving its purpose.

 

§11: Rules of Construction

 

  1. Nothing in the Act can be construed to affect the scope of obligations imposed by any other provisions of law, including §504 of the Rehabilitation Act, title II of the ADA, title III of the ADA, §1557 of the Patient Protection and Affordable Care Act. §508 of the Rehabilitation Act, and §255 of the Communications Act of 1934.
  2. Comment: I am not sure why §501 of the Rehabilitation Act is missing from §11(1).
  3. Nothing in the Act can be construed to limit the remedies, rights, and procedures of any federal law or the law of any state or political subdivision of any state or jurisdiction providing greater or equal protection for the rights of individuals with disabilities than what is provided in this Act.
  4. Any regulations promulgated under this Act cannot have a standard less protective of individuals with disabilities contained in title I, title II, title III, and the regulations issued by the Federal Communications Commission for video programming and communication services provided via websites and applications.
  5. The regulations cannot contain any requirement that a person with a disability must notify a covered entity of an allegation of a violation of the Act prior to commencing a civil action.

 

§12: Authorization of Appropriations

 

  1. $5 million gets authorized for fiscal years 2024-2028 to carry out the rulemaking review, enforcement, and the recommendations of the advisory committee sections of the Act.
  2. $15 million gets authorized for fiscal years 2024-2028 to create this Act’s version of the “Job Accommodation Network.”
  3. $150,000 gets authorized for fiscal years 2024-2028 to carry out the study by the National Commission on Disability.

 

§13: Effective Date

 

  1. The Act goes into effect six months after it is signed by the president. It is 12 months for §4: Access to Websites and Applications.
  2. Comment: elections are coming up shortly. Regardless of your political persuasion and beliefs, go out and vote. Very unclear as to how this bill will proceed regardless of who takes the majority in each house of Congress because disability is not a partisan issue. Also, many constituencies are not at all happy with the wild West of Internet litigation that currently exists. All of this makes it very interesting to follow the course of this bill in the future.