Yesterday was the 32nd anniversary of the ADA. People with disabilities and disability rights have certainly come a long way, but there is certainly much more to go.

 

Today’s blog entry is the result of a case that was sent to me in a discussion that I had with several colleagues about breed restrictions. We also talked about the HUD circular, which I have previously talked about before, here. I have also quite frequently taken the position that the circular simply would not survive Kisor, which case we discussed here. A published case from the Southern District of Florida, Warren v. Delvista Towers Condominium Association, here, that Marcy LaHart, a Florida attorney focusing on animal law, litigated back in 2014 has caused me to reconsider whether the circular would not get judicial deference under Kisor. The circular may also even survive the major questions doctrine. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning that emotional support animals/service animals are reasonable accommodations under the Fair Housing Act; court’s reasoning that the Fair Housing Act preempts the Miami-Dade breed restriction ordinance; why the HUD circular just might control even after Kisor; why the HUD circular might survive the major questions doctrine; and thoughts/takeaways. Of course, the reader is free to concentrate on any or all of the categories.

 

I

Facts

 

Plaintiff owned and resided in a condominium with a no pet policy, with the exception of birds and fishes. Plaintiff’s psychiatrist diagnosed plaintiff with severe recurrent major depression disorder as well as PTSD. On June 12, 2013, plaintiff’s psychiatrist strongly recommended to the Condominium Association it make a reasonable accommodation to its no pet policy pursuant to the Fair Housing Act so that plaintiff could live with his assistance animal, Amir, because of the dog’s therapeutic use and function. Plaintiff sent a letter to the Condominium Association explaining his disorder and attaching the letter from his psychiatrist and requesting a reasonable accommodation to the no pet policy. Subsequent to that letter, the Condominium Association’s legal counsel sent correspondence to the psychiatrist and to the plaintiff requesting additional information to properly evaluate plaintiff’s claim that he required a reasonable accommodation. The letter also threatened plaintiff with the possibility of a lawsuit if the information was not provided within 10 days. So, plaintiff retained legal counsel who again petitioned for the accommodation on plaintiff’s behalf. The Condominium Association never granted the accommodation, but plaintiff did continue to keep his dog in his dwelling. Miami-Dade County had a pit bull dogs prohibited ordinance, and the Condominium Association argued that the accommodation was per se unreasonable because of that fact.

 

II

Court’s Reasoning That Emotional Support/Service Animals Are Reasonable Accommodations.

 

  1. Prevailing on a failure to accommodate claim under the Fair Housing Act means a plaintiff has to establish: 1) he is disabled or “handicapped,” within the meaning of the Fair Housing Act; 2) he requested a reasonable accommodation; 3) such accommodation was necessary to afford him an opportunity to use and enjoy his dwelling; and 4) the defendant refused to make the requested accommodations.
  2. Discrimination under the Fair Housing Act includes a refusal to make reasonable accommodations to its rules, policy, practices, or services, when such accommodation may be necessary to afford a person equal opportunity to use and enjoy a dwelling.
  3. The 11th Circuit has held that an accommodation is unreasonable if it imposes an undue financial and administrative burden on the housing provider or if it fundamentally alters the nature of the provider’s operations.
  4. The Sec. of HUD has the authority and responsibility for administering the Fair Housing Act. In exercising that authority, HUD promulgated 24 C.F.R. §100.204, which provides two examples of situations where an accommodation has been found to be reasonable. In particular, §100.204(b) says that a building with a no pets policy must accommodate a blind person and his seeing-eye dog, otherwise the blind person does not have an equal opportunity to use and enjoy a dwelling. That example specifically demonstrates that an alteration to a no pet policy building to allow for an assistance animal is a reasonable accommodation.
  5. Since an essential element of both 42 U.S.C. §3604(f)(3)(b) and 24 C.F.R. §100.204(a) is that the accommodation be reasonable, it follows that allowing a person with a disability to keep a dog in a housing unit with a no pet policy is a reasonable accommodation.
  6. Defendant made no allegation that allowing plaintiff to have an assistance animal would impose an undue burden or fundamentally alter the nature of the provider’s operations.
  7. HUD has previously said that emotional support animals are in play when it comes to allowing people with disabilities to compensate for their disabilities to enjoy and use dwellings. So, it simply doesn’t matter whether plaintiff’s dog is especially trained.
  8. HUD does allow for the denial of a reasonable accommodation in the form of an assistance animal where the animal’s behavior poses a direct threat and its owner takes no effective action to control the animal’s behavior so that the threat is mitigated or eliminated. Such a risk requires the existence of a significant risk and not a remote or speculative risk.
  9. An assistance animal can be denied where the specific assistance animal in question poses a direct threat to the health or safety of others that cannot be reduced or eliminated by another reasonable accommodation. It also can be denied if the specific assistance animal in question would cause substantial physical damage to the property of others that cannot be reduced or eliminated by another reasonable accommodation.
  10. Whether the animal is a direct threat is distinctly a question of fact.

 

III

Court’s Reasoning That the Fair Housing Act Preempts the Breed Restrictions in the Miami-Dade Ordinance

 

  1. State laws interfering with or contrary to the laws of Congress made in pursuance of the Constitution are invalid.
  2. The Fair Housing Act specifically provides that any law of the state, political subdivision, or other such jurisdiction purporting to require or permit any action that is a discriminatory housing practice is invalid.
  3. Complying with the Fair Housing Act includes altering a building’s no pet policy to accommodate a blind person and his seeing-eye dog because without that accommodation, a blind person will not have an equal opportunity to use and enjoy the dwelling that a person without a disability would have.
  4. The clear and manifest purpose of Congress is to provide individuals with disabilities equal use and enjoyment of their dwelling.
  5. Any state or local ordinance that prevents the Fair Housing Act from achieving its purpose of equal housing opportunity to individuals with disabilities can’t stand. Therefore, the Miami-Dade County ordinance is preempted by the Fair Housing Act and the particular breed of plaintiff’s dog is completely irrelevant.

 

IV

Thoughts on Why the HUD Circular Just Might Survive Kisor

 

  1. Previously we talked about Kisor v. Wilkie, here. In that blog entry, we discussed how the Supreme Court will look at whether agency interpretations of their regulations is entitled to judicial deference. Let’s do a deeper dive into that by looking at the factors laid out in that decision.
  2. Is 24 C.F.R. §100.204(b) genuinely ambiguous? It certainly is. We do know that seeing-eye dogs are protected under the HUD final regulations, but what about dogs used by people with disabilities that act as service dogs for other kinds of disabilities? What about what HUD calls assistance animals? What about emotional support animals? All of that is far from clear from just looking at the regulation.
  3. Is the circular a reflection of HUD’s authoritative, expertise-based, fair, or considered judgment? You certainly could argue that it is. After all, Justice Kagan in her opinion specifically mentioned ADA regulations as being within an agency’s authoritative, expertise-based, fair, or considered judgment, and Fair Housing Act is a similar kettle of fish to the ADA.
  4. Uncertainty certainly exists when looking at the regulation, and more than one right answer also exists when looking at the regulation.
  5. The text, structure, history, and purpose of the regulation certainly leads to the circular as being one possibility.
  6. The circular is certainly an authoritative or official position of HUD and it implicates HUD’s expertise in some form. Finally, HUD certainly has expertise in this area of the law, and the circular quite arguably reflects the fair and considered judgment of HUD.
  7. The current circular did not create any unfair surprise to regulated parties, even if it did make a mess of things.

 

V

Thoughts on Why the HUD Circular Might Survive the Major Question Doctrine

 

  1. Justice Gorsuch listed several criteria in EPA v. West Virginia, here, about when would the major question doctrine apply, including: 1) doctrine applies when an agency’s claim to power involves a matter of great political significance; 2) doctrine may apply when seeking to regulate a significant portion of the American economy; and 3) doctrine may apply when an agency seeks to intrude into an area that is a particular domain of state law.
    1. Unclear whether animals and dwellings involves a matter of great political significance.
    2. The circular certainly regulates a significant portion of the American economy.
    3. Animals in housing is not a particular domain of state law.
    4. Unclear what other factors Justice Gorsuch might think is important.

 

  1. Justice Gorsuch also said that when figuring out congressional intent the following factors must be looked at: 1) the legislative provisions that which the agency seeks to rely with a view to their place in the overall statutory scheme. Oblique or elliptical language will not supply a clear statement; 2) examination of the age of focus of the statute the agency invokes in relation to the problem the agency seeks to address; 3) examination of the agency’s past interpretation of the relevant statute. A contemporaneous and long-held executive branch interpretation of the statute is entitled to some weight as evidence of the statute’s original charge to an agency; and 4) skepticism is merited when there is a mismatch between an agency’s challenged action and its congressionally assigned mission and expertise. That is when an agency has no comparative expertise in making certain policy, Congress presumably would not task it with doing so.
    1. The legislative provisions with respect to the Fair Housing Act is just the general grant of authority that one typically sees with respect to agencies having the ability to make regulation to carry out the legislation.
    2. The Fair Housing Act has been around for some time and is clearly focused on preventing discrimination so that people can find, use, and enjoy their dwellings.
    3. The original circular came out in 2013. So, the idea of emotional support animals/service animals in dwellings has been around for some time. While the current circular has made a mess of things, it wasn’t really a surprise in light of the 2013 circular and in light of case law that has evolved over time.
    4. There is no mismatch between the circular and HUD’s congressionally assigned mission and expertise as HUD certainly has comparative expertise in making policy in this area.

VI

Thoughts/Takeaways

 

  1. With NFL season starting shortly, it is perfectly appropriate to conduct further review. Upon further review, an argument can be made that the circular does survive Kisor and very well is entitled to judicial deference for the reasons mentioned above.
  2. My thanks to Marcy LaHart for sending me this case.
  3. I don’t recommend sending a lawsuit possibility letter, as the Condominium Association lawyer did, when a tenant makes a request for reasonable accommodation as that might be construed as retaliation, which the Fair Housing Act prohibits.
  4. The opinion uses the term emotional support animals and assistance animals and also cites to the regulation talking about a service dog. As we know from the circular, all of those terms are in the HUD circular and mean different things to HUD.
  5. Remember that with respect to the common areas, as we know from previous blog entries, the ADA has its own rules with respect to service animals, see here for example.
  6. It would take a lot of money for a Condominium Association to argue that the circular should not get deference after Kisor. Further, it is not a slam dunk that the circular will not receive deference per Kisor. So, when it comes to animals and dwellings, preventive law would demand that the circular be the first authority that is looked at if an animal is requested as a reasonable accommodation in order to allow a person with a disability to enjoy his or her or they dwelling.
  7. The Fair Housing Act still uses the term “handicapped,” unfortunately. “Handicapped,” under the Fair Housing Act is defined in the same way as the ADA and the Rehabilitation Act, though there is a dispute about whether the ADA amendments, which amended how certain definitional terms must be interpreted, are applicable to the Fair Housing Act.
  8. This is not the only case discussing breed restrictions. We previously discussed a similar case here.
  9. Pitbulls can make good pets/therapy dogs/service animals. Over the weekend, I saw a show on the NFL network discussing the rise and fall and rise of Michael Vick. In that show, the owner of a pit bull rescue place talked about how many of the pitbulls rescued from Michael Vick’s dogfighting operation wound up making excellent pets and even therapy dogs.
  10. It is unclear whether the major question doctrine would apply to the circular because the case establishing the doctrine involves a regulation and not an agency interpretation of its regulation. Logically speaking, it would seem Kisor would be the case that would apply to the circular and not EPA v. West Virginia.
  11. Marcy informs me that the case settled for $100,000 and attorneys fees and that the settlement was not confidential.
  12. Here is a picture of plaintiff with Amir, the emotional support animal discussed in our case of the day. My thanks to Marcy LaHart for sending it along.
Plaintiff with Amir. Pic sent by plaintiff’s attorney, Marcy LaHart.

Last week, both EEOC and the Department of Transportation came out with guidances related to people with disabilities. The EEOC added to their running guidance on Covid-19, while the DOT came out with a bill of rights for airline passengers with disabilities. The blog entry is divided into two categories: latest amendment to the long-running EEOC document on Covid-19; and the DOT Bill of Rights for airline passengers with disabilities. With respect to the DOT Bill of Rights, what I did for that is cut and paste the entire Bill of Rights and then add my thoughts where appropriate, which is a tactic I have done before in this blog with other guidances.

 

I

Latest Amendment to the Long-Running EEOC Document on Covid-19

 

With respect to the EEOC guidance, Robin Shea in her blog, here, does a fabulous job of breaking down the new additions to the EEOC document. I am just going to add a few of my own thoughts. Otherwise, you can’t go wrong by looking at Robin’s discussion of the latest additions to the EEOC document. The EEOC document can be found here. My thoughts are immediately below:

 

  1. CDC guidance has changed radically over time and so has American behavior. The CDC guidance combined with American behavior means that direct threat is really more of a macro issue in a way that it wasn’t before. Direct threat is still going to be an issue with respect to a particular individual that is at increased risk of consequences should they get Covid-19. Otherwise, the CDC guidance, which really can only focus on hospitalization because so few people are reporting Covid-19 due to utilizing home tests, becomes very difficult to apply as a matter of practice.
  2. The CDC guidance can all change in a matter of moments. The BA5 omicron variant is becoming quite prevalent, and so everyone has to be prepared for changes at any moment in time.
  3. The interactive process is more critical than ever. The do’s and don’ts of the interactive process we discussed here.
  4. While the EEOC talks about how accommodation process might be delayed because of the pandemic, you do need to remember, as we discussed here, that an unreasonable delay in granting an accommodation is actionable.
  5. I recently read that 60% of legal professionals no longer want to work in the office full-time. I also recently read that for all kinds of employees the number is close to 50% for those not wanting to work in the office full-time. So, expect a lot of telecommuting reasonable accommodation requests.
  6. Direct threat to others in light of American behavior and the latest CDC guidance is almost impossible now to divine. The current CDC guidance and the direct threat analysis get a bit easier with respect to direct threat to self.
  7. The EEOC document talks about fully vaccinated. What does that even mean? Two shots? Two shots and a booster? Two shots and two boosters? I recently read an Israeli study that found a second booster was very helpful for individuals over 50. It wouldn’t surprise me at some point if the CDC says everybody should get a second booster. Even so, “fully vaccinated,” is a really uncertain term, especially if it is meant to convey a certain level of Covid-19 protection.

 

 

II

DOT Bill of Rights (Here)

 

Airline Passengers with Disabilities Bill of Rights

This Bill of Rights describes the fundamental rights of air travelers with disabilities under the Air Carrier Access Act and its implementing regulation, 14 Code of Federal Regulations (CFR) Part 382.

Please click this link to download the latest version of the Bill of Rights.

The Bill of Rights consists of:

  1. The Right to Be Treated with Dignity and Respect.
  2. The Right to Receive Information About Services and Aircraft Capabilities and Limitations.
  3.  The Right to Receive Information in an Accessible Format.
  4. The Right to Accessible Airport Facilities.
  5. The Right to Assistance at Airports.
  6. The Right to Assistance on the Aircraft.
  7. The Right to Travel with an Assistive Device or Service Animal.
  8. The Right to Receive Seating Accommodations.
  9. The Right to Accessible Aircraft Features.
  10. The Right to Resolution of a Disability-Related Issue.

Click on any of the rights above to be linked to an explanation of that right in this document. The Bill of Rights does not expand or restrict the rights of air travelers with disabilities. Rather, it provides a convenient summary of existing law. Because the explanations in this document may not be as precise as the regulations themselves, the explanations link to the actual regulatory text for your reference.

Important Information About the Bill of Rights

Does the Bill of Rights reflect current information?

  • The Bill of Rights is a living document. DOT will update the Bill of Rights as regulations change.
  • DOT published this Bill of Rights in July 2022.

My thoughts: interesting question as to whether the Bill of Rights, which interprets DOT Air Carrier Access Act’s regulations, will be given deference per Kisor v. Wilkie, here.

Does the Bill of Rights apply to me?

  • The Bill of Rights applies to individuals with a disability which is defined in Part 382 as persons with a physical or mental impairment that permanently or temporarily impacts a major life activity such as walking, hearing, or breathing.

My thoughts: the Air Carrier Access Act doesn’t always work the same way as the ADA. For example, it is possible that a temporary disability under the ADA may not be protected. We have talked about temporary disabilities and the ADA numerous times before, such as here. It also makes sense that temporary disabilities would be protected under the Air Carrier Access Act because it is quite foreseeable that a person with a temporary disability could be flying and need assistance.

Does the Bill of Rights apply to my trip?

  • The Bill of Rights applies to all flights of U.S. airlines, and to flights to or from the United States by foreign airlines.

My thoughts: what is a U.S. airline? The Air Carrier Access Act actually applies to all carriers, see here, which is a far broader term than what we think of as U.S. airlines.

  • The obligation to comply with government safety and security laws is a general exception to airlines’ obligations described in this Bill of Rights.
  • Also, some airlines are approved by DOT to use an alternative method to comply with a regulation when it provides an equivalent level of accessibility or it meets the objective of Part 382. Visit the docket for the Equivalent Alternative Determinations and Conflict of Law Waivers for more information.

Are airline contractors subject to the same obligations as airlines?

  • Airlines must make sure their contractors that provide services to the public meet regulatory obligations. Airlines are legally responsible for the action or inaction of their contractors.

My thoughts: there are several Different Air Carrier Access Act regulatory provisions, such as here, that make it crystal clear that airline responsibility to persons with disabilities is a nondelegable duty.

 1. The Right to Be Treated with Dignity and Respect.

An airline, including its employees and contractors, may not discriminate against an individual with a disability because of his or her disability.

My thoughts: what does “because of,” mean? The answer is no longer simple after Bostock, as we discussed here.

  • For example, an airline may not refuse transportation or other services because of one’s disability or resulting appearance or involuntary behavior.
  • An airline cannot require air travelers with disabilities to accept special services or subject them to restrictions that do not apply to other passengers, except passengers with disabilities may need to check-in early, provide advanced notice or documentation, or pre-board to receive certain disability-related services.
  • Airline personnel who deal with the traveling public must be trained to be aware of passengers with disabilities’ needs and how they can be accommodated safely and with dignity.
  • Airline employees and contractors must receive refresher training at least once every three years. Complaint Resolution Officials (the airlines’ experts in resolving disability-related issues) must receive refresher training annually.

My thoughts: get someone knowledgeable to do the training (providing training on ADA and on ADA related laws is a big part of my practice). Keep in mind, that there are several intersecting laws when it come to airlines dealing with people with disabilities and they are: Airline Deregulation Act, Air Carrier Access Act, Americans with Disabilities Act, and state negligence laws. It may be worthwhile for a trainer to have a background in each of these laws because the obligations vary depending upon the law involved. Making it even more complicated is that issues of preemption are also involved as a result of the Airline Deregulation Act.

Reference links (14 CFR): Section 382.11 (General Discrimination Prohibitions); Section 382.19 (Prohibition on Refusal to Transport); Section 382.23 (Medical Certificates); Section 382.27 (Advance Notice to Obtain Certain Services); Section 382.33 (Discriminatory Restrictions); Section 382.141 (Training of Airline Personnel and Contractors); Section 382.143 (Recurrent Training of CRO).

Click Back to The Bill of Rights Section

 2. The Right to Receive Information About Services and Aircraft Capabilities and Limitations.

Airlines must provide air travelers with disabilities information upon request about the facilities and services available to them. The information must be
specific to the aircraft scheduled for the flight, unless unfeasible (for example, an unpredictable aircraft substitution occurs).

The information airlines must provide includes:

  • any aircraft-related, service-related, or other limitations on the ability to accommodate passengers with a disability, such as limitations on level-entry boarding (Airlines must provide this information to any passenger who states that he or she uses a wheelchair for boarding, even if he or she did not request the information.).
  • any limitations on the availability of storage on the aircraft
  • for assistive devices.
  • the specific location of seats with movable aisle armrests.
  • whether the aircraft has an accessible lavatory.
  • the types of services that are not available on the flight.

Reference link (14 CFR): Section 382.41 (Advance Information).

Click Back to The Bill of Rights Section

 3. The Right to Receive Information in an Accessible Format.

An airline’s primary website must be accessible if the airline uses an aircraft with more than 60 seats. In addition, airlines must ensure that automated kiosks they install after December 2016 at U.S. airports with 10,000 or more enplanements per year are an accessible model, until 25% of kiosks at each airport location are the accessible model.

My thoughts: we discussed this issue in this blog entry, here.

Passengers who identify as needing visual or hearing assistance must receive prompt access to the same trip information as other passengers at the gate, ticket area, customer service desk, and on the aircraft (so long as it does not interfere with airline employees’ safety duties).

My thoughts: with respect to the Deaf, deaf, and hard of hearing communities, I can assure you that this is simply not happening, especially with respect to the aircraft (don’t even get me started on the lack of captioning with respect to the behind the seat viewing options), if my experience flying recently is any indication.

Airlines must train personnel to recognize requests for communication accommodation. The personnel must be trained to use the most common methods for communicating with individuals who are blind, deaf, or hard of hearing that are readily available, such as writing notes, for example. Personnel must also be trained to use established means for communicating with deaf-blind passengers when they are available, such as passing out Braille cards if available, reading an information sheet that a passenger provides, or communicating through an interpreter, for example.

My thoughts: I simply do not understand the focus on deaf-blind in this regulation apart from other disabilities that have communication challenges. Perhaps, DOT was rather inartfully trying to say that airlines must also be aware of deaf-blind passengers and their needs, which is absolutely true. It could have been phrased a lot better.

Reference links (14 CFR): Section 382.43 (Website Accessibility); Section 382.53 (Information for Blind, Deaf, or Hard of Hearing at Airports); Section 382.57 (Kiosk Accessibility); Section 382.119 (Information for Blind, Deaf, or Hard of Hearing on Aircraft); Section 382.141 (Training of Airline Personnel and Contractors).

Click Back to The Bill of Rights Section

 4. The Right to Accessible Airport Facilities.

Airlines and U.S. airport operators are both responsible for the accessibility of airport facilities. The Air Carrier Access (ACAA) and Department’s implementing regulation in 14 CFR Part 382 cover airlines’ obligations. Various other federal statutes and regulations apply to U.S. airport operators, for example, the Americans with Disabilities Act (ADA), Section 504 of the Rehabilitation Act of 1973, and their implementing regulations. Airlines and airport operators have concurrent obligations to ensure accessibility of airport facilities.

My thoughts: airports are invariably but not always owned and operated by nonfederal governmental entities. As such, most airports, which are owned by nonfederal governmental entities, are subject to title II of the ADA and to §504 of the Rehabilitation Act because they take federal funds. If it is a private airport, the airport would be subject to title III of the ADA and to §504 of the Rehabilitation Act as you have to assume a private airport would take federal funds. The obligations of the title II or title III entity are nondelegable, as we discussed in this blog entry and in this blog entry.

This Bill of Rights describes the obligations of airlines under the ACAA. In general, airlines must ensure that terminal facilities that they own, lease, or control are readily accessible and usable by passengers with disabilities at U.S. airports, and readily usable at foreign airports. Airports are responsible for ensuring compliance of facilities that they own, operate, or lease to other parties, including airlines.

Airlines must ensure an accessible route between the gate and the aircraft boarding location. When level-entry boarding is not available, such as boarding via a jet bridge, airlines and U.S. airports must ensure ramps or mechanical lifts are available to service most flights. Airlines, in cooperation with airport operators, must also provide service animal relief areas at the airport.

My thoughts: I am consulting on several cases where a person with a disability under the care of an airline suffers a personal injury. When that happens, you have to deal with the intersection of the Airline Deregulation Act, the ADA, the Air Carrier Access Act, and state negligence laws. There are also issues of preemption, so it can all get pretty complicated.

Reference links (14 CFR, unless otherwise noted): Section 382.51 (Accessibility of Airport Facilities); Section 382.95 (Assistance With Respect to Boarding and Deplaning); Section 382.99 (Agreements Between Airlines and Airports); Section 382.101 (Other Boarding and Deplaning Assistance); 28 CFR 35 (Nondiscrimination on the Basis of Disability in State and Local Government Services); 49 CFR 27 (Nondiscrimination on the Basis of Disability-Receipt of Federal Financial Assistance); 49 CFR 37 (Transportation Services for Individuals with Disabilities).

Click Back to The Bill of Rights Section

 5. The Right to Assistance at Airports.

Passengers with disabilities must be provided prompt and timely enplaning and deplaning assistance, upon request, from properly trained airline personnel.

 

My thoughts: the Air Carrier Access Act regulations, such as here for example, make it quite clear that “upon request,” is not parenthetical. Also, the phrasing is confusing because it is upon request of the person with a disability and not the airline or its subcontractor’s personnel that is the critical question.

 

This must include:

  • the services of personnel and the use of ground wheelchairs, accessible motorized carts, boarding wheelchairs, on-board wheelchairs, and ramps or mechanical lifts, as needed.
  • assistance with moving from the curb to the departing flight, assistance with transportation between gates to make connections, and assistance with moving from the arriving flight to the curb for pick-up.
  • assistance with accessing key functional areas of the terminal such as the ticket counter or baggage claim, or to a restroom entrance (if time allows).
  • escorting a passenger with a service animal to an animal relief area at a U.S. airport.

Passengers who request assistance in advance of arriving at the airport need to identify to airline personnel once they arrive at the airport or the gate to receive the assistance.

Airlines cannot require the passenger to accept a specific form of assistance that he or she does not request (ex: requiring a wheelchair when a sight guide was requested).

In addition, the airline cannot leave a passenger unattended for more than 30 minutes in a wheelchair or other device, in which the passenger is not independently mobile.

Reference links (14 CFR): Section 382.11 (General Discrimination Prohibitions); Section 382.91 (Assistance in Moving Within Terminal); Section 382.95 (Assistance With Respect to Boarding and Deplaning); Section 382.103 (Prohibition on Unattended Immobile Wheelchair Passenger).

Click Back to The Bill of Rights Section

 6. The Right to Assistance on the Aircraft.

Airlines must allow a passenger with a disability who self-identifies at the gate as needing additional time or assistance to board, stow accessibility equipment, or be seated, the opportunity to board before all other passengers.

  • Except, an airline with an open seating policy has been approved by DOT to accommodate extra-time passengers after an initial group of passengers have boarded, but early in the boarding process.

Passengers with disabilities must be provided prompt and timely boarding and deplaning assistance, upon request, from properly trained airline personnel.

  • This includes assistance with moving to and from seats.
  • If level loading bridges are not available, a lifting device must be provided to assist persons with limited mobility safely on and off the aircraft at most U.S. airports, except when boarding smaller aircraft (less than 19 seats).
  • For smaller aircraft and non-primary U.S. airports or foreign airports, airlines must ensure boarding and deplaning assistance by any available means acceptable to the passenger.
  • However, airlines must never hand-carry a passenger (directly pick up a passenger’s body in the arms of airline personnel) on or off an aircraft, except in an emergency.

Once a passenger with a disability has boarded, airlines must provide assistance, if requested, such as:

  • moving to or from the lavatory, including using an on-board chair to assist, if requested.
  • stowing and retrieving carry-on items, including assistive devices.

Reference links (14 CFR): Section 382.93 (Preboarding); Section 382.95 (Assistance With Respect to Boarding and Deplaning); Section 382.101 (Other Boarding and Deplaning Assistance); Section 382.111 (Services Required On the Aircraft); Section 382.113 (Services Airlines are Not Required to Provide On the Aircraft).

Click Back to The Bill of Rights Section

 7. The Right to Travel with an Assistive Device or Service Animal.

Traveling with Assistive Devices on Aircraft

Airlines must allow assistive devices as carry-ons in the cabin free of charge consistent with safety rules.

  • This includes medical devices and/or a personal amount of medication that assist the passenger with his or her disability.
  • Assistive devices must not count against the passenger’s carry-on limit.
  • Priority in-cabin stowage (either a closet or a row of seats designated for seat strapping) must be available for at least one normal-sized collapsible manual wheelchair in any aircraft with 100 or more passenger seats.
  • Airlines that use seat strapping should provide space for at least two of these wheelchairs if stowing the second wheelchair would not displace passengers.
  • The priority stowage requirements do not apply to older aircraft.

Manual wheelchairs that cannot be transported in the cabin must be transported in the cargo compartment consistent with safety and security requirements. Airlines must accept a battery powered wheelchair, if it fits in the cargo compartment and can be transported consistent with safety and security requirements. Airlines must also provide for the checking and timely return of assistive devices at the gate for use in the terminal. Should an airline lose, damage, or destroy the wheelchair or other assistive device, the airline must provide compensation in an amount up to the original purchase price of the wheelchair or device.

Reference links (14 CFR): Section 382.67 (Priority Stowage of Wheelchairs In-Cabin); 382.121 (Assistive Devices In-Cabin); Section 382.125 (Stowage of Assistive Devices In Cargo); Section 382.131 (Liability for Loss, Damage, or Delay of Assistive Devices).

Traveling with Service Animals

Airlines must permit a service dog to accompany a passenger with a disability in the aircraft cabin unless:

  • the dog poses a direct threat to the health or safety of others;
  • the dog causes a significant disruption or misbehaves in the cabin or at an airport gate area;
  • the dog’s carriage would violate a U.S. or foreign law;
  • current DOT forms weren’t provided as required by the airline for the trip.

A decision by airline personnel to refuse transportation of a service dog with the passenger must be based on an individualized and objective assessment of the dog that considers the nature of the risk and the likelihood that harm will actually, or continue to, occur. The assessment should also consider whether mitigations are available.

Airlines cannot deny transportation of the service dog if there are means that would mitigate the problem.

Reference link (14 CFR): Sections 382.72 -382.80 (Service Animals).

Click Back to The Bill of Rights Section

My thoughts: we discussed the DOT final rule when it comes to animals on airplanes here.

 8. The Right to Receive Seating Accommodations.

Airlines must provide specific seats to the following passengers who identify to airline personnel as needing the seat, if the seat exists on the same class of service on the aircraft:

  • Movable Aisle Armrest–When the passenger uses an aisle chair to board and cannot transfer readily over a fixed aisle armrest.
  • Bulkhead Seat or Other Seat–When the passenger travels with a service animal that is best accommodated at a particular seat.
  • Greater Leg Room–When the passenger has a fused or immobilized leg.
  • Adjoining Seat–For a companion providing a certain type of assistance, such as:
    • A personal care attendant who performs a function that is not required to be performed by airline personnel, for example assisting a passenger with a disability with eating;
    • A reader for a passenger who is blind or low vision;
    • An interpreter for a passenger who is deaf or hard of hearing; or
    • A safety assistant if a passenger with a disability cannot assist with their own evacuation.

For passengers not specified above, airlines must provide a seat assignment that best accommodates his or her disability if the passenger meets the airline’s procedures.

Airlines must provide seating accommodations using one of three methods: the block method, the priority method, or preboarding (if the airline does not provide advance seat assignments). Visit our Seating Accommodation Methods page to learn more about these seating methods and for the seating methods of the largest U.S. airlines and their operating partners, which account for approximately 95 percent of domestic passenger air traffic. Information regarding seating methods of certain foreign air carriers is also provided.

Reference link (14 CFR): Sections 382.81-382.87 (Seating Accommodations).

Click Back to The Bill of Rights Section

 9. The Right to Accessible Aircraft Features.

New aircraft delivered to U.S. airlines after April 1992 and to foreign airlines after May 2010 must have accessible features that include:

  • Movable aisle armrests on half of the aisle seats, if the aircraft has 30 or more seats.
    • DOT has approved some airlines to meet the purpose of this requirement by alternative means that provide substantially the same or greater accessibility to passengers with disabilities.
  • Priority stowage space for wheelchairs in the cabin for aircraft with 100 or more seats.
  • At least one accessible lavatory, if the aircraft has more than one aisle.
  • An on-board wheelchair, if the aircraft has an accessible lavatory, or the passenger gives the airline advance notice that he or she can use an inaccessible lavatory and needs an on-board chair to reach it.

Airlines with older aircraft with 30 or more seats that replace the aisle seats, must ensure half of these seats have movable aisle armrests. Also, if an airline replaces a lavatory on a twin-aisle aircraft, there must be an accessible lavatory.

Reference links (14 CFR): Section 382.61 (Movable Aisle Armrests); Section 382.63 (Lavatories); Section 382.65 (On-Board Wheelchairs).

Click Back to The Bill of Rights Section

 10. The Right to Resolution of a Disability-Related Issue.

Airlines must make available a Complaint Resolution Official (CRO) in a timely manner, this may be by phone.

  • The CRO should be trained as an expert in resolving disability-related issues and be able to resolve disability-related issues on the spot.
    • Passengers with disabilities who are not satisfied with air travel services, may file a complaint with the airline or DOT. Complaints concerning issues under the airport’s responsibility can be filed with the airport, FAA or DOJ.
  • Airlines must respond and directly address the disability related issues in your complaint in writing within 30 days, but airlines are not required to address complaints sent more than 45 days after the incident unless the complaint is referred to the airline by DOT.
  • DOT will refer all disability-related complaints it receives within 6 months of the incident for response by the appropriate carrier.
  • DOT investigates all disability-related complaints it receives to determine whether a violation of the Air Carrier Access Act occurred.
  • Passengers with disabilities who have pressing questions about their rights should ask to speak with the airline’s CRO. Airlines must have a CRO available at each airport they serve during all times the airline is operating at that airport. Passengers may also contact the DOT Disability Hotline at 1-800-778-4838. The hours for the hotline are 8:30am to 5:00pm Monday-Friday.

Reference links (14 CFR): Section 382.151 (CROs); Section 382.155 (Carrier Responses to Complaints); Section 382.159 (Filing a Complaint with DOT).

 

My thoughts: as we have discussed previously in the blog, here for example, no private cause of action exists for violations of the Air Carrier Access Act regulations.

An emerging issue is whether when it comes to accommodating a person with a disability in an employment situation, are you accommodating the disability or are you accommodating the essential functions of the job. The easy scenario where that matters is when dealing with an employee with a service dog. Recently, Hobby Lobby was sued by the EEOC for denial of letting an employee use a service dog, here. However, there are other situations where the distinction between accommodating the essential functions of the job v. accommodating a person’s disability can matter a great deal. Our case of the day, Wilson v. Sec. of Veterans Affairs, an unpublished decision from the 11th Circuit decided June 3, 2022, is such a case. As usual the blog entry is divided into categories and they are: facts; court’s reasoning reversing summary judgment on the failure to accommodate claim; court’s reasoning affirming summary judgment on the retaliation claim; and thoughts/takeaways. Of course, the reader is free to concentrate on any or all of the categories.

 

I

Facts (taken directly from the opinion with very very minor changes for readability and flow).

 

Wilson, a veteran, suffers from degenerative disc disease and partial paralysis in both feet. In February 2009, Wilson started as a probationary Veteran Claims Examiner (VCE) for the Atlanta VA Regional Office. At the time, the Atlanta VA Regional Office only permitted permanent employees to use the on-site parking deck. Probationary VCEs could park at an off-site parking area roughly one mile from the office, from which they could either take a shuttle or walk to work. The VA shuttle ran for one hour in the morning and one hour in the evening. It ran sporadically at best and could only hold up to 25 individuals at a time—even then, there were only 15 seats. And because the shuttle lacked handlebars, standing passengers were forced to either be “pressed against an individual” or “use [their] body as a stance” to avoid falling over. Roughly 80 probationary VCEs commuted per day. Because of the shuttle’s shortcomings, Wilson effectively faced the option of either walking to work—which “put enormous pressure on her nerves” and caused her legs and feet to swell—or parking in unassigned handicapped spaces in the on-site parking deck.1 Wilson made the latter choice, leading to numerous parking tickets and counseling memos about her unauthorized parking.

 

As an employee with a disability, Wilson was told to bring any requests she may have for workplace accommodations to Celesta Chapin, her Vocational Rehabilitation Counselor with the VA’s Rehabilitation and Employment Division. Between March and July 2009, Wilson communicated her needs for a parking accommodation on six occasions to VA personnel—in all instances, Wilson stated that the VA refused to accommodate her requests in violation of the Rehabilitation Act. Wilson identified six distinct failures by the VA to accommodate or respond to her requests for an accommodation, occurring on the following dates in 2009: (1) March 31, (2) April 13, (3) April 17,2 (4) May 12, (5) July 7, and (6) July 8 and thereafter. The record evidence shows the following regarding these events.

 

With respect to the first failure, Wilson emailed her vocational rehabilitation counselor with the VA’s rehabilitation and employment division that the parking situation at the VA aggravated her disability and that she needed a parking accommodation. The rehabilitation counselor told Wilson that she would make a workplace accommodation request to human resources on her behalf, but Wilson never received follow-up from that meeting.

 

With respect to the second failure, Wilson stated that she met with Eboni White, her direct supervisor, after receiving a counseling memo for unauthorized parking in the on-site parking deck. During the meeting, Wilson explained that her disability forced her to park on-site and that she was working with Chapin to obtain permission to park in the onsite parking deck, for which she needed White’s assistance. White then said that she would communicate with Chapin. However, White did not relay Wilson’s request to Chapin or anyone in HR, nor did White follow up with Wilson regarding her request.

 

With respect to the third failure, Wilson stated that she emailed Praileau Young, an HR assistant, to ask where she could find the paperwork necessary to submit a parking accommodation request. Young responded that she had forwarded Wilson’s email to the “appropriate person,” but Wilson never received the requested information. On the same day, Wilson emailed Chapin again to confirm the status of her request. Chapin responded that she thought Wilson dropped the matter, but then requested from Wilson the name of her supervisor so that Chapin could request an assessment. Wilson responded and asked Chapin to submit the request on her behalf.

 

With respect to the fourth failure, in the same affidavit, concerning the fourth instance, Wilson stated that she met again with Chapin on May 12, 2009. At this meeting, Chapin reminded her to discuss her request with her supervisor. Wilson testified that she believed management was ignoring her since she had already spoken with White to no avail.

 

With respect to the fifth failure, on July 1, 2009, union representative Rebecca Manning gave her own parking badge to Wilson with permission to use it to park at the on-site parking deck. Because the badge did not work, Wilson asked an HR Liaison, Vivian DeLoach, for help. On July 7, 2009, DeLoach informed Wilson that she was not authorized to park there. Making this the fifth occasion, Wilson testified that she believed then that her request had been denied after all.

 

With respect to the last failure, Wilson testified that she emailed DeLoach on July 8, 2009, to request “the appropriate paperwork to file for reasonable parking accommodations due to my service-connected disability,” which she identified as “degenerative disc disease, with [herniated] discs and partial paralysis in both of [her] feet.” Wilson stated that she would be willing to provide medical documentation and facilitate contact with her doctor if necessary. On July 16, 2009, Unit Chief John Clayton Smith—who replaced White as Wilson’s direct supervisor—followed-up to verbally inform Wilson that he consulted with HR and that they “d[id] not see a connection [between parking privileges] and the essential function of you performing your job.” (Emphasis mine). Wilson interpreted this as the sixth instance of the VA’s failure to accommodate. Wilson then emailed DeLoach for written confirmation of Smith’s “denial” of her request for accommodations. Smith followed up with Wilson via email and reiterated that neither he nor HR saw the need for an accommodation but did not deny the request outright. DeLoach responded that although she was not the approving official for accommodation requests, she would assist Smith in helping Wilson understand how to properly submit a request.

 

On July 22, 2009, Wilson filed a complaint with the Equal Employment Opportunity Commission (EEOC) alleging discrimination by the VA. Within hours of filing the complaint, Wilson received a letter from Smith titled “Certification of Need for a Reasonable Accommodation.” Smith therein acknowledged Wilson’s accommodation request and requested, inter alia, medical documentation to evaluate her request. The letter also reminded Wilson yet again that “parking is not a condition of employment, nor related to the essential functions of your position.” This was the same language that Smith used in previously denying her request. (Emphasis mine). Wilson testified that she never provided the documentation because she understood the letter to be a preemptive denial. Wilson did not receive any follow-up.

 

Wilson testified that she soon thereafter suffered harassment. This harassment consisted, in part, of what she considered a pretextual disciplinary reprimand for leaving overtime work 45 minutes early because she felt ill. Wilson also applied for a Rating Veteran’s Service Representative position (RVSR) around this time but was not selected despite her allegation that she was more qualified than the selected applicant. On September 3, 2009, Wilson withdrew her EEOC complaint on advisement from her EEOC counselor. Her EEOC counselor discussed the matter with DeLoach, who responded, “if [parking] was going to be a problem [Wilson] might want to reevaluate her decision to work there.” Wilson stated that she continued to park in on-site handicapped spaces and amassed several parking tickets and letters of counseling because she believed that the VA unlawfully denied her accommodations request. Wilson also received a negative performance appraisal during this time, to which she filed a union grievance. Shortly thereafter, Jeannie Daniel, the VA Regional Assistant Education Officer, recommended to the VA regional Director Alfred Bocchicchio that Wilson be terminated for poor performance. The VA terminated Wilson on December 18, 2009, with a letter citing both her parking violations and poor performance as justification. Wilson applied again for the RVSR position in 2011, and was again not selected, despite her allegation that here, too, she was the most qualified candidate. Wilson stated that she believed she was not selected on either occasion because the decisionmakers knew of her disability and her EEOC complaint.

 

Wilson brought suit alleging both discrimination against terror and the terms and conditions of her employment and retaliation. The District Court granted summary judgment in favor of the Veterans Affairs administration and Wilson appealed.

 

II

Court’s Reasoning Reversing Summary Judgment on the Failure to Accommodate Claim

 

  1. An employer’s obligation to provide a reasonable accommodation is triggered when the employee makes a specific demand for a reasonable accommodation.
  2. After the employer is placed on notice of the employee’s disability and request for an accommodation, the employer has to make a reasonable effort to determine the appropriate accommodation.
  3. Determining an appropriate reasonable accommodation may mean going through the interactive process.
  4. It is when the employer fails to provide the accommodation after it was demanded that the plaintiff can sustain a discrimination claim under the Rehabilitation Act.
  5. Wilson made repeated requests (see §I of this blog entry), for the specific accommodation to park in the VA parking deck. She repeatedly explained her reasoning and her request to many different people at the VA who either discouraged, ignored, or provided inadequate follow-up to those requests.
  6. A reasonable juror could find that Wilson’s first two communications with the VA were requests for an accommodation.
  7. It is sufficient that Wilson requested to park on site and justified her request by informing the VA about her mobility limitations and her belief that an accommodation would resolve the issue.
  8. It took the VA four months to even attempt to initiate the interactive process, despite being repeatedly placed on notice of Wilson’s disability and her request. As such, a jury could find that the VA’s four month long inaction in addressing Wilson’s request constitutes a failure to accommodate in violation of its obligations under the Rehabilitation Act regardless of Wilson’s subsequent failure to provide the documentation.

 

III

Court’s Reasoning Affirming Summary Judgment on the Retaliation Claim

 

  1. Wilson’s argument that her parking requests were independent protected activity is new on appeal. Since a court will generally not consider an issue raised for the first time on appeal, Wilson waived the argument.
  2. Wilson does not demonstrate that the VA’s other basis for termination, i.e. her subpar work performance, was pretextual. The VA produced evidence that the regional VA director considered Wilson’s failing to meet the minimum monthly expected and products and produce numerous errors in her work that had to be corrected by supervisors. She also requested overtime pay for hours that she did not work and received a counseling memo for doing so. Wilson did not dispute that her record was unsatisfactory and did not produce evidence that would lead a reasonable jury to find pretext. She therefore cannot show that the protected activity was causally connected to the adverse employment action and the rich allegation claim fails.

 

IV

Thoughts/Takeaways

 

  1. The VA’s focus on the essential functions of the job rather than on accommodating her disability got the VA in a bunch of trouble here. As a matter of preventive law, per Felix-which we discussed here-, it is much better to focus on accommodating the disability rather than focusing on accommodating the essential functions of a particular job. Taking this approach will certainly prevent litigation down the road and make the person with the disability feel valued so that he/she/they will want to succeed.
  2. You want to make sure at trial that all arguments are preserved for appeal.
  3. Magic words, as we have discussed numerous times in our blog, such as here, are not required for activating the interactive process.
  4. Always utilize the interactive process whenever a request for a reasonable accommodation/modification is made. The interactive process is not optional in my opinion despite the court’s use of the word, “may.”
  5. Don’t forget about the do’s and don’ts of the interactive process, which we discussed here.
  6. An unreasonable delay in granting a reasonable accommodation, as we discussed here, is actionable.
  7. Since this involved a federal employee, it was §501 of the Rehabilitation Act that was involved and not the ADA. However, by statute §501 of the Rehabilitation Act, 29 U.S.C. §791, here, tracks title I of the ADA.
  8. The trend is very much that a failure to accommodate claim as a separate cause of action.
  9. Case illustrates how an underlying disability discrimination claim can go forward even where a retaliation claim does not. I have also seen cases where it would to allegation act claim goes forward but the underlying disability discrimination claim does not.
  10. Negative reports on an employee can of course be done at any time. However where an employee has initiated a request for reasonable accommodation, you want to make sure such a report is part of your regular processes and not an attempt to justify disciplinary proceedings after a reasonable accommodation request has been made. Such an action could also rate the question over whether the performance issued would have been cured if reasonable accommodations have been granted in the first place.

Happy Fourth of July everyone.

 

Last week, I was in Chicago visiting family. I also had a chance to participate in a panel discussing the Federal Bar Association’s disability inclusion success story as part of the ABA’s Collaborative Bar Leadership Academy. I had a great time doing that. I did not get back until Wednesday late afternoon and spent Thursday and Friday catching up. So, I did not get a chance to put up a blog entry for last week. I don’t often skip a week so to speak. The blog entry for this week is West Virginia v. EPA, here, which is a case everyone is talking about. I thought I would add my own perspective. The case is 89 pages but the reasoning can be broken down pretty easily. The case is not about the ADA at all, but it certainly has relevance because there is an awful lot of administrative regulations, guidances, etc. associated with the ADA and the Rehabilitation Act and related laws. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning that the EPA rule went too far in the absence of explicit legislative authority; Justice Gorsuch’s opinion discussing when the major question doctrine gets activated and how to go about applying it; Justice Kagan dissenting opinion; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

The facts are really simple. The EPA came up with a rule to require electrical companies to shift to renewables. The EPA analyzed the regulation and decided that the regulation went too far. The Biden administration said there would be new rules issuing. However, that didn’t stop various State Atty. Gen.’s from suing to stop the original rule.

 

II

Court’s reasoning that the EPA rule went too far In the Absence of Explicit Legislative Authority (C.J. Roberts)

 

  1. Extraordinary grants of regulatory authority are rarely accomplished through modest words, vague terms, or subtle devices.
  2. Congress typically does not use oblique or elliptical language to empower an agency to make a radical or fundamental change to a statutory scheme.
  3. The major question doctrine took hold because it refers to an identifiable body of law developed over a series of significant cases all addressing a particular and recurring problem: agencies asserting highly consequential power beyond what Congress could reasonably be understood to have granted.

 

III

Justice Gorsuch’s (joined by Justice Alito), Opinion Discussing When the Major Question Doctrine Gets Activated and How to Go about Applying It

 

  1. Major question doctrine applies when an agency’s claim to power involves a matter of great political significance.
  2. The major question doctrine may apply when seeking to regulate a significant portion of the American economy.
  3. The major question doctrine may apply when an agency seeks to intrude into an area that is a particular domain of state law.
  4. ¶ II 1-3 is not necessarily an exclusive list of factors.
  5. In figuring out whether congressional intent is sufficiently clear, the following factors must be looked to:
    1. the legislative provisions on which the agency seeks to rely with a view to their place in the overall statutory scheme. Oblique or elliptical language will not supply a clear statement.
    2. An examination of the age and focus of the statute the agency invokes in relation to the problem the agency seeks to address.
    3. An examination of the agency’s past interpretation of the relevant statute. A contemporaneous and long-held executive branch interpretation of a statute is entitled to some weight as evidence of the statute’s original charge to an agency.
    4. Skepticism is merited when there is a mismatch between an agency’s challenged action and its congressionally assigned mission and expertise. That is when an agency has no comparative expertise in making certain policy, Congress presumably would not task it with doing so.

 

IV

Justice Kagan Dissenting Opinion (Justice Breyer and Justice Sotomayor joining).

 

  1. The case should not have been decided by the Supreme Court at all because the EPA said they would propose new rulemaking and the rule at issue was never on the table for the future. As such, the majority opinion is nothing more than an advisory opinion on the scope of any new proposed rule by the EPA, which is not something the courts are supposed to do.
  2. The statute at issue allowed for generation shifting as it refers to, “systems.”
  3. The major question doctrine is a new concept and has never been used before by the Supreme Court.
  4. The case the majority relies on is about Chevron deference and not the doctrine of major questions.
  5. The administrative state serves a valuable purpose because members of Congress often don’t know enough and often they know that they don’t know enough to regulate sensibly on an issue.

 

V

Thoughts/Takeaways

 

  1. Everybody is now trying to channel Justice Scalia, both the majority and the dissent do that. Undoubtedly Justice Scalia will go down in history as one of the more influential Justices.
  2. It is unclear just how far this major question doctrine is going to go. I am usually not a fan of the slippery slope argument as it is generally a logical fallacy, but sometimes the worry is justified. For example, when Justice Gorsuch says that the major question doctrine may apply when an agency seeks to regulate a significant portion of the American economy, one has to wonder just how far it goes. After all, virtually all regulations regulate a significant portion of the American economy.
  3. I spent a legislative session working for the Illinois Joint Committee on Administrative Rules. That entity has a dual purpose. First, proofreading the regulations. Second, and more importantly to my mind, assessing whether the regulations exceeded legislative authority. The Joint Committee on Administrative Rules is actually within the legislative branch and not the executive branch. If the Joint Committee on Administrative Rules decided that a set of regulations exceeded legislative authority, then the legislators on that committee could vote as such. Voting that the regulations exceeded legislative authority would put the courts on notice that the regulations were in a bit of trouble. During my tenure there, which admittedly was many many years ago, I don’t recall the legislators of that committee ever voting that a regulation exceeded legislative intent. I do recall agencies backing down occasionally from a proposed regulation when they were advised by Joint Committee on Administrative Rules staff that unless the regulations were changed in such a way, a vote against that particular regulation would occur. One wonders if it isn’t a good idea as a preventive law matter for every legislative body to create a Joint Committee on Administrative Rules after this decision.
  4. The major question doctrine is a way to sidestep the issue of the continuing viability of Chevron deference.
  5. Legislators going forward are going to want to be as specific and explicit as possible when it comes to delegating regulatory authority to executive agencies when it comes to their legislation. I recognize that such specificity is not always easy with respect to the legislative sausage making process so to speak.
  6. I would not be surprised to see the highest courts of various states follow this case. One wonders how such cases will play out with respect to the question of legislative authority in a state where an entity like the Illinois Joint Committee on Administrative Rules exist and that committee did not find that a particular regulation exceeded statutory authority.

What if an entity slow walks the reasonable accommodation process with the hope that the person with the disability will, for example, graduate, age out of the program, simply go away? Is an unreasonable delay in granting a reasonable accommodation actionable under the ADA? Two cases out of the jurisdiction of the Seventh Circuit say that it is. It is interesting that it is two cases from Illinois as the Seventh Circuit is not generally speaking, particularly generous to people with disabilities with the exception of mandatory reassignment, which we discussed here, and unreasonable delay. The cases of the day are McCray v. Wilkie decided by the Seventh Circuit on July 16, 2020, here, and DiFranco v. City of Chicago decided by the Northern District of Illinois on March 7, 2022, here. As usual, the blog entry is divided into categories and they are: McCray facts taken from the opinion; McCray’s reasoning that a delay in providing an adequate replacement van was actionable; McCray’s reasoning with respect to failing to reassign plaintiff or give him a new office; DiFranco facts taken from the opinion; DiFranco’s reasoning that failure to accommodate claims can proceed; DiFranco’s reasoning that the ADA and the Illinois Human Rights Act discrimination claims get tossed; and McCray DiFranco thoughts/takeaways . Of course, the reader is free to concentrate on any or all of the categories.

 

I

McCray Facts

 

McCray is an employee of the Department of Veterans Affairs (“VA”). McCray worked at the Milwaukee VA Vet Center as a readjustment counselor from July 1997 until September 2000, when he left for graduate studies. After earning a Master’s degree in Educational Psychology/ Community Counseling and practicing as a community psychologist, he returned to the VA in March 2004 as a Mental Health Case Manager. In that capacity, McCray provides a variety of support services for military veterans, among them engaging in one‐on‐one counseling (including drug and alcohol counseling), conducting clinical groups, helping to complete benefits applications, making in‐home visits in at‐risk neighborhoods, providing case management for veterans with severe mental illness, and transporting clients to clinical appointments.

 

McCray alleges that he was subject to multiple forms of workplace discrimination. Two of the three claims he has pursued on appeal are claims that the VA failed to accommodate his disabilities; the third is a disparate treatment claim positing that other VA employees received more favorable accommodations than he did based on their race. (McCray is African American; the comparators are white women.) No. 19‐3145 3

 

McCray served in the Army for a period of eight years in the 1980s (achieving the rank of Sergeant prior to his honorable discharge), and in the course of his service sustained injuries to his big toes, ankles, knees, lower back, and shoulders. He also sustained mental injuries and has been diagnosed as having an adjustment disorder with depressed moods. As of February 2013, his VA disability rating was 100 percent. In addition to his service‐related disabilities, McCray suffers from hypertension, arthritis, diabetes, sarcoidosis (which is in remission), and post‐traumatic stress disorder (“PTSD”). McCray’s physical disabilities have a substantial negative impact on his ability to bend, stoop, climb, reach, twist, carry, sleep, and walk; pain attributed to McCray’s arthritis also causes him to experience difficulty with concentration. His mental disabilities likewise affect his ability to concentrate and in addition his breathing ability; they also contribute to a sense of extreme fatigue.

 

In July 2012, McCray asked his supervisor, Dr. Erin Williams, that the van he was using to transport VA clients to their appointments be replaced, because the van was hurting his knee. Since his return to the VA in 2004, McCray had not previously needed an accommodation in order to perform his duties. After a preliminary meeting between McCray and an ergonomics employee in August, the van was evaluated in October by a specialist, who concluded that the “knot” on McCray’s knee seemed to be caused by a lack of leg room in the van. (McCray is 6 feet 3 inches tall and weighs 390 pounds.) In November, the van began to “buck and jerk” in traffic. Although the motor pool evaluated the van and told McCray they could find nothing wrong, a co‐worker who drove the van one day experienced the same problem and told McCray the van was unsafe. In December, he was offered a temporary replacement van which he eventually accepted, but the replacement van allegedly had a cracked windshield, no rear brakes, inoperable power steering and horn, and was too small: McCray described it as worse than the original. McCray continued to ask for an appropriate replacement van as he had since he first made the request in July, but he did not get it until June 2013, 19 days after he told Williams that he was going to file an EEO complaint over the matter. In 2014, shortly after a white female coworker complained about her van bucking and jerking, all of the case managers received new vans.

 

In August 2013, McCray filed a charge (his second) with the Equal Opportunity Employment Commission (“EEOC”) complaining that he had improperly been denied a promotion to a higher grade level and that the VA had not reasonably accommodated him when he had requested a replacement van.

 

In October 2013, McCray experienced difficulty concentrating at work, which he attributed to various acts of discrimination and retaliation committed by co‐workers in the wake of the charges he had filed with the EEOC. He was initially granted a two‐week leave of absence, after which he returned to work and suffered a series of panic attacks. He asked that he be reassigned to another position as a reasonable accommodation; he also was prescribed (and granted) a second leave of 30 days. The following month, he was advised that the VA was unable to find him a reassignment.

 

In response, McCray indicated that he could probably manage to continue working without reassignment if he were to be given an office on a lower floor as an accommodation to his disabilities. That request was denied, notwithstanding the fact that there were vacant offices two floors down in the building. By contrast, when a white female co‐worker requested in February or March 2014 that her office be moved due to a medical condition, her request was granted.

 

II

McCray’s Reasoning That a Delay in Providing an Adequate Replacement Van Was Actionable

 

  1. Rehabilitation Act requires a federal employer to reasonably accommodate the known physical and mental disabilities of a qualified employee.
  2. The Rehabilitation Act incorporate the standards of the ADA when determining whether an employer had discriminated against an employee. Therefore, cases under both statutes are looked to in evaluating an employer’s compliance with that duty.
  3. Plaintiff alleged that he had a variety of physical and mental conditions that could obviously affect major life activities. He also alleged that prior to 2012, he had been able to perform the essential functions of the job without any accommodations, and that all he needed to continue was a new van to resolve the difficulty have begun to experience with his knee.
  4. An unreasonable delay in providing an accommodation for an employee’s known disability can amount to a failure to accommodate his disability that violates the Rehabilitation Act.
  5. Whether a particular delay qualifies as an unreasonable one necessarily turns on the totality of the circumstances, including but not limited to looking at such factors as: 1) the employer’s good faith in attempting to accommodate the disability; 2) the length of the delay; 3) the reason for the delay; 4) the nature, complexity, and burden of the accommodation requested; and 5) whether the employer offered alternative accommodations.
  6. Plaintiff informed his supervisor that the van he was driving was causing him pain when he was driving and an ergonomics specialist agreed that he needed a different van. Replacing the van was not an especially complex or burdensome accommodation since new vans were given to all counselors in the following year. Plaintiff also raised the issue at weekly staff meetings with his supervisor, and yet the only interim accommodation he was offered was a van that was even worse in material respects.
  7. The employer had no dialogue with the plaintiff about what else could be done and on what timeline. Such a lack of dialogue could be understood to violate the employer’s duty to engage in the interactive process with its employee to arrive in an appropriate accommodation. It is also evidence of the employer’s lack of good faith.
  8. None of the other cases cited by the defendant, which were summary judgment matters, suggest that a delay in granting a reasonable accommodation of any particular duration will be invariably reasonable regardless of the surrounding circumstances.

II

McCray’s Reasoning with Respect to Failing to Reassign Plaintiff or Give Him a New Office

 

  1. It is unclear whether the failure to reassign or to give plaintiff a new office is a failure to accommodate claim or a retaliation claim.
  2. Such confusion can be cleared up because the case is remanded for further proceedings and plaintiff can then clarify and support that claim.

III

Di Franco Facts Taken Directly from the Opinion

 

Marco suffered from cystic fibrosis, a permanent and progressive lung disease, and cystic fibrosis-related diabetes. Doc. 1 at ¶ 9. At the time of his death, he was employed by the City as a CPD police officer. Id. at ¶ 1. Marco informed the City of his cystic fibrosis and cystic fibrosis-related diabetes when he began working for CPD in May 1998. Id. at ¶ 11. In 2005, Marco was assigned to the Narcotics Division, which required him to work at CPD’s Homan Square facility and in the field. Id. at ¶¶ 12-13.

On March 9, 2020, in response to the COVID-19 outbreak, the Governor of Illinois issued a Disaster Proclamation, and on March 13, the President declared a National Emergency. Id. at ¶¶ 19, 21. COVID-19 can lead to “serious, long-term complications in some cases, including inflammation and clogged air sacs in the lungs, restriction of the body’s oxygen supply, blood clots, organ failure, liver damage, intestinal damage, heart inflammation, neurological malfunction, and acute kidney disease.” Id. at ¶ 15. According to the Centers for Disease Control and Prevention (“CDC”), individuals with underlying medical conditions, such as lung disease and diabetes, face an increased risk of severe illness and death from COVID-19. Id. at ¶ 16.

On March 19, 2020, Marco received an email from CPD’s Chief Communications Officer advising all CPD employees of the CDC’s guidance that individuals with “health conditions like heart disease, diabetes, and lung disease are more likely to have serious illness” if they contract COVID-19. Id. at ¶ 22; Doc. 1-2 at 9. The email instructed employees who “believe[d] that [their] . . . medical condition places [them] at a higher risk of serious illness from COVID-19” to “contact the Medical Section of the Chicago Police Department to discuss next steps.” Doc. 1 at ¶ 22; Doc. 1-2 at 9. The Medical Section oversees and approves medical and sick leaves for CPD employees. Doc. 1 at ¶ 23. The email further instructed “[s]worn [m]embers” like Marco to “have your healthcare provider provide documentation related to your condition to medical.section@chicagopolice.org,” and stated that, “[o]nce your documentation is reviewed by the Medical Director, you will be contacted by Medical Services staff for instructions.” Id. at ¶ 25; Doc. 1-2 at 9.

Less than two hours after Marco received the email, his doctor sent a letter to the Medical Section stating that Marco had cystic fibrosis and cystic fibrosis-related diabetes. Doc. 1 at ¶ 26; Doc. 1-2 at 11. The letter further stated that, “[w]ith this underlying lung condition and these comorbidities, [Marco] is at higher risk of developing serious illness from COVID-19,” and asked that he “be given the opportunity to work remotely or be provided with alternative accommodations to distance himself from others while at work.” Doc. 1 at ¶ 26; Doc. 1-2 at 11.

While that request was pending, Marco was required to and did continue reporting for work at Homan Square and in the field. Doc. 1 at ¶ 27. On March 20, Marco called the Medical Section about his accommodation request and was told that someone would call him back. Id. at ¶ 28. He did not receive a call back that day. Id. at ¶ 29. On March 21, Marco called the Medical Section six times, but nobody answered his calls, and he could not leave a voicemail because the Medical Section’s voicemail inbox was full. Id. at ¶¶ 30-31. Also on March 21, Marco emailed the Medical Section a signed “Employee Self-Certification of Medical Condition” form certifying that he had a serious chronic medical condition placing him at an increased risk for contracting or suffering from complications of COVID-19. Id. at ¶ 32; Doc. 1-2 at 13. Later that day, a non-medical member of the Medial Section told Marco that a doctor employed by the City would review his accommodation request and contact him. Doc. 1 at ¶ 33. No City doctor contacted Marco on either March 21 or March 22. Id. at ¶ 34.

On March 23, Marco received a call from his commanding officer, Commander Ronald Kimble, who had learned from CPD’s Human Resources Department about his accommodation request. Id. at ¶ 36. Kimble “berated” Marco for submitting the request and accused him of trying to draw attention to himself. Id. at ¶ 37. Marco explained the severity of his cystic fibrosis and cystic fibrosis-related diabetes, and said that his sister, who had the same conditions, had died after being infected by a communicable virus. Id. at ¶ 38. Kimble continued to berate Marco, telling him to retire or to go on disability instead of seeking medical leave or placement on “sworn medical roll,” which “has a negative stigma” at CPD. Id. at ¶ 39. Kimble then ordered Marco to advise his sergeant, Sergeant Mark Vanek, of his conditions and of his request for an accommodation, which Marco did that day. Id. at ¶¶ 40-42.

After speaking to Vanek, Marco went to the Medical Section to inquire about the status of his accommodation request, as he still had not been contacted by a City doctor. Id. at ¶ 43. Marco was again advised by non-medical staff that a City doctor would review his request and contact him. Id. at ¶ 44.

From March 19 through March 27, despite his continued inquiries, Marco was not contacted by a City doctor regarding his accommodation request. Id. at ¶¶ 45-46. During that time, as required by CPD policy, Marco continued to report to work at Homan Square, as he had neither received information about his accommodation request nor received clearance from the City to take medical leave. Id. at ¶¶ 45, 47. To access the Homan Square facility, Marco had to place his palm on a biometric palm scanning system, which was used by hundreds of individuals per day and was not sanitized between uses. Id. at ¶¶ 48-51. Marco also had to take communal elevators, in which he came into contact with individuals from other CPD departments who were not wearing masks. Id. at ¶ 52.

On March 28, Marco began experiencing COVID-19 symptoms. Id. at ¶ 53. Around the same time, he was told that three individuals with whom he had been in contact at Homan Square during the previous week had tested positive for COVID-19. Id. at ¶ 54. At least one other detective in the building had also tested positive. Ibid. The next day, on March 29, Marco tested positive for COVID-19. Id. at ¶ 55. Between March 29 and April 2, Marco continued to attempt to contact CPD and the Medical Section about his accommodation request, but he was ignored. Id. at ¶¶ 57, 59, 61. He was never contacted by a City doctor about his accommodation request, nor was his request approved. Id. at ¶ 60. The City and CPD did grant accommodation requests made by other officers and employees, some of which had been submitted after Marco’s. Id. at ¶ 62.

Marco died on April 2 of COVID-related complications. Id. at ¶ 56. CPD classified his death as being in the line of duty. Id. at ¶ 58. On September 18, 2020, in her capacity as the independent administrator of Marco’s estate, Maria cross-filed charges with the Illinois Department of Human Rights (“IDHR”) and the U.S. Equal Employment Opportunity Commission (“EEOC”), alleging ADA and IHRA violations. Id. at ¶ 5. The IDHR and EEOC sent Maria right-to-sue letters, id. at ¶¶ 6-7, after which Maria timely filed this suit.

IV

DiFranco’s Reasoning That Failure to Accommodate Claims Can Proceed

  1. Under the ADA, discrimination includes not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability in the absence of an undue hardship on the operation of its business.
  2. Establishing a claim for failure to accommodate, means that a plaintiff has to show: 1) he is a qualified individual with a disability; 2) the employer was aware of his disability; and 3) the employer failed to reasonably accommodate the disability.
  3. An unreasonable delay in providing an accommodation for an employee’s known disability can amount to a failure to accommodate his disability.
  4. Citing to McCray, above, the court said that whether a particular delay qualifies as unreasonable turns on the totality of the circumstances and cited to the McCray factors.
  5. Plaintiff’s allegations give rise to a plausible inference that the City’s delay in responding to plaintiff was unreasonable given the circumstances presented by Covid-19 pandemic and was also in bad faith. In particular, plaintiff alleged: 1) that the medical section failed to respond to his request for an accommodation despite his repeated and diligent effort to follow up on his initial request; 2) plaintiff also alleged that the City was aware that Covid-19 posed serious health risk individuals with lung disease and diabetes; 3) the City knew that plaintiff suffered from those conditions; 4) Cmdr. Kimble berated him for requesting an accommodation; and 5) the City managers in the pertinent timeframe did grant other employees’ accommodation requests. Therefore, these allegations are such that the court cannot hold on the pleading that the City’s failure to take action on plaintiff’s accommodation request within 10 days was not unreasonable.

V

DiFranco’s Reasoning That the ADA and IHRA Discrimination Claims Get Tossed

  1. failure to accommodate claims are separate and distinct under the ADA from claims alleging disparate treatment because of a disability.
  2. The essence of a failure to accommodate claim is that the plaintiff asked to be treated differently based on his disability-to be allowed to work remotely or socially distant from his co-workers-but that the Chicago Police Department failed to grant his request. Such allegations cannot be repackaged as a discrimination claim because the claim’s focus is that the Chicago Police Department did not treat plaintiff differently based on his disability.
  3. Plaintiff’s allegation that she was berated for requesting an accommodation by a commanding officer does not support a discrimination claim either because a single hostile call from a supervisor does not rise to the level of materially adverse employment action.

Separately, the defense argued that the Illinois wrongful death act was preempted by the Illinois pension code, but the court wasn’t buying it.

 

 

 

VI

Thoughts/Takeaways From McCray and DiFranco

 

  1. In the Seventh Circuit, a failure to accommodate claim is a separate cause of action.
  2. Slow walking a delay in processing a reasonable accommodation request is a very bad idea. Even a short amount of time for processing the request may be an unreasonable delay as seen in DiFranco.
  3. McCray does a good job of laying out factors that can be used to figure out whether an unreasonable delay in granting a reasonable accommodation exists.
  4. A failure to accommodate claim cannot be repackaged as a disparate treatment claim without more.
  5. The ADA definitely applies to hostile work environment, see this blog entry for example, but what is a hostile work environment can be a moving target.
  6. You run into trouble when you treat people in protected groups differently from other protected groups in a way that doesn’t make any sense, such as being selective about when you grant accommodations.
  7. The Rehabilitation Act and the ADA get treated the same way. There are differences between the two laws (§504 causation, emotional distress damages if it is a matter involving title II or title III, and program accessibility for example), but the differences are not many.
  8. Undue hardship can either be financial (very difficult to show), or operational (best to think of that as a fundamental alteration).
  9. A bad idea to prorate an employee for requesting a reasonable accommodation. Such conduct raises the issue of hostile work environment. It also raises the issue of retaliation as well.
  10. Otherwise qualified (Rehabilitation Act), and qualified (ADA), mean the same thing.
  11. Remember the do’s and don’ts of the interactive process, here, and be sure to engage in the interactive process.
  12. While both of these cases discussed in this blog entry are title I cases, I see no reason why an unreasonable delay being actionable could not extend to title II and title III cases as well.

There must be an art to reading what is really going on by the questionings of Justices at oral argument. If there is such an art, I haven’t mastered it yet. Case in point, we previously discussed a case that appeared to raise the question of whether Chevron deference would survive, here. On June 8, 2022, Justice Kavanaugh wrote a unanimous opinion for the court completely ignoring the Chevron question and holding that the case could be resolved strictly by a matter of statutory interpretation. So, we will have to wait for another day to see if the Supreme Court wants to take on Chevron deference in a way that it took on Auer deference in Kisor, which we discussed here.

 

The case of the day, Pierre v. Midland Credit Management, Inc. is actually a dissenting opinion filed in response to the denial of a request for an en banc rehearing denial and its dissenting opinion here, involving the question of whether emotional distress was sufficient to confer standing on a plaintiff when the defendant violated her rights under the FDCPA (FDCPA), in trying to collect zombie debts- debts where the defendant knew the statute of limitations had expired. The panel had said there was not standing and the plaintiff asked for a rehearing en banc. A majority of the Seventh Circuit decided against granting the rehearing but four judges dissented. The dissenting opinion as to why emotional distress justify standing in FDCPA cases is instructive because it become crystal clear that such arguments will not carry over to title III or for that matter to title II of the ADA. As usual the blog entry is divided into categories and they are dissenting opinion as to why emotional distress justifies standing under the FDCPA, and thoughts/takeaways. The nature of this blog entry pretty much assumes that the reader will read the whole thing, but I suppose you could have a reader that focuses on either of the categories as well.

 

I

Dissenting Opinion as to Why Emotional Distress Justifies Standing under the FDCPA

 

  1. The Supreme Court has made clear that an intangible injury can be a concrete injury for purposes of standing. The question is when is an intangible injury sufficiently concrete.
  2. In figuring out whether an intangible injury is sufficiently concrete, both history and the judgment of Congress play important roles. In particular, courts have to consider whether an alleged intangible harm has a close relationship to a harm that has traditionally been regarded as providing a basis for a lawsuit in English or American courts. Courts also have to treat the judgment of Congress as, “instructive and important.”
  3. Plaintiff proved all elements of a FDCPA claim for deceptive and unfair practices. She also offered evidence of harms lying close to the heart of the protection Congress reasonably offered consumer debtors in the FDCPA. Also, those harms bear a very close relationship to harms long recognized under the common law and constitutional law.
  4. The FDCPA in its statutory finding talks about marital instability and the prohibitions on using threats, obscene language, and harassing calls. As such, Congress recognized how such abusive practices can upset the lives of those targeted by debt collectors.
  5. The emotional distress, confusion, and anxiety suffered by the plaintiff in response to the zombie debt collection effort fits well within the harms expected from many of the abusive practices listed in the statute.
  6. The opinion cited another Seventh Circuit concurring opinion that highlighted Congress’s judgment about the need to protect consumers from abusive debt collection practices and its choice to rely on private enforcement. In particular, it ignores the findings of Congress, constitutes a direct affront to a congressional prerogative at the core of legislative function, and ignores the reality of everyday life when a person receives a letter demanding money that is not owed. The failure to recognize an injury that Congress saw and addressed testifies to the failure of courts to appreciate how the people courts judicially govern live. It also testifies to the court’s failure to defer to congressional appreciation as to how citizens live.
  7. The emotional distress, anxiety, fear, and stress experienced by the plaintiff was foreseeable, even intended, responses to defendant’s attempt to collect a zombie debt. Congress authorized damages for such harms and that demand is well within congressional legislative power over interstate commerce to go beyond the common law.
  8. Other FDCPA violations parallel the tort of invasion of privacy, including its branches for intrusion upon seclusion, unreasonable publicity given to a person’s private life, and false light. None of those torts involve tangible injuries and all of those have been around for some time.
  9. The tort of assault is the fear and emotional distress of being attacked and standing is never an issue there.
  10. With respect to intentional and reckless conduct, the common law has long supported damages for emotional distress.
  11. Congress is not required in its enactments to have congruence with the common law.
  12. The fear, anxiety, confusion, and more general emotional distress fits comfortably within the common law of torts.
  13. The Seventh Circuit’s pattern jury instruction for §1983 claims say jurors have to consider mental and emotional pain and suffering.
  14. Damages for intangible injuries are appropriate for denials of free speech, free exercise of religion, or due process of law as well. They are also available for intrusions on privacy and for excessive force cases under the fourth amendment.
  15. The general rule is that nominal damages are available and even presumed where a plaintiff proves a violation of her legal rights. If that is correct under both the common law and on the constitutional law, it is difficult to see why Congress cannot authorize a modest damage remedy under the FDCPA when a plaintiff’s statutory rights are violated.
  16. The idea that intangible harms like emotional distress are not sufficient to support article III standing is simply wrong-especially when Congress has authorized such claims under a federal statute.
  17. The Seventh Circuit cases of late have restricted standing so sharply that the FDCPA very close to being completely neutered in Illinois, Wisconsin, and Indiana.
  18. Plaintiff testified in detail about the letter demanding that she pay a debt that was known longer owed and her reaction to that letter.
  19. The panel got it wrong when it said that emotional distress and other psychological states can never support standing under the FDCPA.
  20. With respect to figuring out when nominal damages are authorized under a statute, a good idea would be to look to Justice Thomas’s opinions in the Supreme Court cases of Spokeo and TransUnion (TransUnion we discussed here). In those opinions, Justice Thomas talked about private rights and public rights with courts having jurisdiction over actions without a showing of actual damages for rights privately held by an individual and not for rights broadly owed to the community. Adopting Justice Thomas’s private versus public right distinction could go a long way to clearing up Supreme Court precedents on nominal damages with its recent opinions on standing for intangible injuries. It also provides a clear and manageable line between standing when a private right under the statute is involved v. the universal standing feared by the panel in this case and similar cases.

 

II

Thoughts/Takeaways

 

  1. It is absolutely true that the Supreme Court has held that testers have standing when it comes to the Fair Housing Act. However, the Fair Housing Act has specific references to foreseeable emotional harms within its statute (see this blog entry for a further discussion).
  2. Title III of the ADA only allows for injunctive relief and attorney fees.
  3. As we discussed here, the Rehabilitation Act does not allow for emotional distress damages.
  4. Hard to believe that in a title II or III matter that a court could find a history showing how damages for discrimination against a person with a disability have been around for a long time. A court is also going to have a problem with the judgment of Congress prong as well because of the statutory provisions of both the Rehabilitation Act and title III of the ADA. The statutory provisions of the Rehabilitation Act are important because title II of the ADA specifically hooks into Rehabilitation Act for its remedies. The remedy provisions for §504 of the Rehabilitation Act, 29 U.S.C. §794a, do not mention emotional distress damages being available for §504 violations.
  5. There isn’t anything in 42 U.S.C. §12101 (the ADA’s findings section), explicitly addressing intangible harms. You simply do not see language like you do in the FDCPA that foreseeably leads to the conclusion that emotional distress is in play.
  6. Applying Justice Thomas’s private versus public right distinction is of no help because disability discrimination would be a public right.
  7. One can expect that defense counsel when dealing with architectural accessibility cases or website accessibility cases under title III of the ADA in particular to reflectively take the position that an ADA tester can never have standing. They could also do that with respect to title II, assuming a tester is involved, because of the remedies for title II linking to the Rehabilitation Act remedies, which the Supreme Court has held emotional distress damages are not available, as we discussed in this blog entry. To phrase it another way, the argument against testers having standing under the ADA or §504 of the Rehabilitation Act is that the injury being alleged as the basis for standing is not something contemplated as an injury allowed by the statute or by Supreme Court decision.
  8. With respect to employment matters, assuming testers can be in play in that situation, you get to a completely different place because the relevant statutory provisions do authorize emotional distress damages as we discussed when mentioning the petition for rehearing in Cummings, here. Whether that petition gets granted is anybody’s guess. If that petition gets granted, what the Supreme Court opinion would look like is also anybody’s guess.

Last week my schedule was completely impossible, so I was not able to get a blog up during the work week. Finally, I got some time to do it now. The blog entry for the last week is a Statement of Interest filed by the DOJ in A.V. v. Douglas County School District Re-1. If the name Douglas County School District is familiar, that is because it frequently comes up in disability rights matters. For example, the Endrew decision, here, involved the Douglas County School District. In the Statement of Interest, the DOJ goes all in on the ADA being a nondelegable duty. That the ADA is a nondelegable duty should not surprise readers of this blog because we previously discussed that here, and I return to the concept frequently. The principle is so important that I continually list the ADA being a nondelegable duty blog entry in my greatest hits section even though it is never one of the 10 most popular blog entries of a particular year. As usual, the blog entry is divided into categories and they are: facts; DOJ reasoning that the ADA is a nondelegable duty; and thoughts/takeaways. Of course, the reader is free to concentrate on any or all of the categories. Finally, there are a couple of times in this blog entry where I am paraphrasing very closely DOJ interpretive guidance stated in the Statement of Interest, so you do not see quotations there but very close paraphrasing.

 

I

Facts

 

In this particular case, three school resource officers behaved in a way that arguably violated a student rights as a person with the disability by doing among other things interrupting the de-escalation process with the school psychologist, arresting him, and leaving him handcuffed and locked in a patrol car for several hours. The original complaint alleged that the school district was a joint employer, but the court threw that complaint out. The student then filed an amended complaint saying that the school district had a nondelegable duty to the student and was therefore liable for the actions of the security guards.

 

II

DOJ’s Reasoning That the ADA Is a Nondelegable Duty

 

  1. Title II of the ADA creates an affirmative obligation on a public entity to avoid discrimination in the provision of any of services, programs, and activities. This obligation remains when providing its services, programs, or activities either directly or through contractual or other arrangements.
  2. School districts cannot divest themselves of responsibility for the lawful administration of any of their programs by contracting with school resource officers, private security guards, or any other contractors.
  3. Title II of the ADA covers all services, programs, or activities of the public entity and draws no distinction between a program provided directly by the public entity and a program provided through a contractual or other arrangement.
  4. 28 C.F.R. §35.130(b)(1) provides that a public entity may not discriminate in the provision of its services, programs, and activities whether directly or through contractual licensing, or other arrangements. 28 C.F.R. §35.130(b)(3) [there is a typo in the Statement of Interest whereby this is listed as §36.130(b)(3), which is not correct].
  5. The title II regulations are entitled to substantial deference per Chevron.
  6. Commentary to the title II implementing regulations, 28 C.F.R. part 35, app. B (commentary §35.102, states: all governmental activities of public entities are covered, even if they are carried out by contractors. For example, a state is obligated by title II to ensure its services, programs, and activities of a state park that is operated under contract by a private entity are in compliance with title II’s requirements. The private entity operating the inn would also be subject to the obligation to public accommodations under title III of the act and the department’s title III regulations at 28 C.F.R. part 36.
  7. Similarly, DOJ has elaborated in the context of correctional facilities at 28 C.F.R. part 35, app. A (commentary §35.152), that: title II requirements apply to correctional facilities used by State or local governmental entities, irrespective of whether the public entity contracts with another public or private entity to build or run the correctional facility. If a prison is occupied by State prisoners and is inaccessible, the State is responsible under title II of the ADA. The same is true for a county or city jail. In essence, the private builder or contractor operating the correctional facility does so at the direction of the governmental entity. Further, even if the State enters into a contractual, licensing, or other arrangement for correctional services with a public entity having its own title II obligations, the State is still responsible for ensuring the other public entity complies with title II in providing the services.
  8. The department’s regulatory guidance reflects the agency’s authoritative, expertise-based, fair and considered judgment per Kisor v. Wilkie, which we discussed here. In fact, in Kisor, the majority opinion used DOJ’s regulatory guidance to the ADA as an example of where Auer deference applies after Kisor.
  9. The plain text of the ADA, its implementing regulations, and regulatory guidance make clear that a public entity cannot contract away its legal obligations. Instead, a public entity maintains its legal duty and remains liable for harm in its services, programs, and activities regardless of how it decides to structure or staff those services.
  10. The 10th Circuit has held with respect to the Colorado Department of Corrections, that a public entity cannot contract away at liability under title II of the ADA, and that the State Department of Corrections could be held liable for discrimination by a subcontractor, a community correction program. In that case, the 10th Circuit said that the state entity’s services include a program undertaken to third parties by means of contracting and other arrangements. The 10th Circuit also said that while the state entity could farm out operation to others, doing so would not prevent liability under the ADA or the Rehabilitation Act. Further, that particular decision did not even discuss joint employees because such a finding was not necessary to find Colorado liable.
  11. The Ninth Circuit has also said that the State of California continued with its title II duty to state inmates who were housed in county jails and could be held liable for a county’s failure to provide those inmates with reasonable accommodation for their disabilities.
  12. A District Court in Indiana held that title II obligations apply to the State of Indiana when it contracted with a private company to provide medical services to inmates. Other district courts have held similarly in a variety of situations.
  13. Douglas County’s reliance on a title I case doesn’t work because this is not a title I case but a title II case. (See also thought/takeaways #3).
  14. DOJ has made clear in a regulatory guidance that even if a State enters into a contractual, licensing or other arrangement for services with a public entity that has its own title II obligations, the State is still responsible for ensuring that the other public entity complies with title II in providing those services. As such, the fact that the sheriff’s office also has responsibility under title II, and may be liable for the security resource officer’s action does not negate the school district’s own legal responsibility to ensure that all of its activities, including a school safety program, are carried out in a nondiscriminatory manner. In this kind of situation, imposing title II obligations on both entities is entirely consistent with the text and the purpose of the ADA.
  15. The school district trying to carve out certain types of contracts from its liability doesn’t hold up because there is no textual basis in the ADA or in its implementing regulations to support such a limitation.
  16. While a school district is certainly primarily responsible for providing educational services, and engages in many other services, programs, or activities, including transporting children, preparing and serving food, promoting student health, and constructing and maintaining buildings, a school district can no more allow the contractors it selects to provide those services to discriminate then it could allow discrimination by a person contracted by the school to proctor its examinations.
  17. A school district is required to use all its authority to address and fight discrimination occurring within any of its programs, services, or activities. The amended complaint alleges that the security resource officers program is a program of the school district and that the building principal is responsible for the supervision and implementation of that program.

 

III

Thoughts/Takeaways

 

  1. This is not the first time we have talked about nondelegable duty. As I mentioned above, one of my most important blog entries even if it is not the most popular from year to year is this one where the Nevada Supreme Court held that the ADA was a nondelegable duty, here. That case did not involve a public entity but rather an architectural firm, which is a title III entity.
  2. The DOJ with this Statement of Interest has gone all in on the ADA being a nondelegable duty.
  3. In addition to the title II regulations discussed in this blog entry, title III’s final implementing regulations, 28 C.F.R. §36.204, and title I’s final implementing regulations, 29 C.F.R. §1630.6, both prohibit using contracting to discriminate against persons with disabilities with respect to individuals served by the covered entity.
  4. It is not unusual for entities to contract out for all kinds of reasons. If doing so, an entity should strongly consider a reimbursement agreement rather than indemnification agreements. A reimbursement agreement involves the entity paying out everything as a result of what went wrong and then seeking reimbursement later. Whereas an indemnification agreement involves an entity shifting off its responsibility to somebody else. The former may very well work, see here for example, but the latter, see here, definitely will not.
  5. As a result of Kisor explicitly using the DOJ regulatory guidance as an example of regulatory interpretations passing Auer deference, the DOJ interpretations of their final implementing regulations of the ADA have to be taken very seriously. It also means that DOJ’s ADA final implementing regulations get Chevron deference.
  6. Can you be both a title II and a title III entity simultaneously? I don’t see it unless the title III entity is a state actor per this case.
  7. The DOJ Statement of Interest discussed in this blog entry has huge implications with respect to the relationship between licensing boards and professional recovery programs, which is a topic we discussed here.
  8. As a matter of preventive law, it would be wise to just assume that the ADA imposes a nondelegable duty regardless of whether a title I, title II, or title III is involved.

Earlier today, I counted the number of cases I had in my pipeline. It came to two dozen. Ultimately, I chose the case of Panarra v. HTC Corporation et. al., here. It is a cutting edge case exploring whether the programming offered in virtual reality headsets needs to be accessible to the Deaf, deaf, and hard of hearing communities. As usual, the blog entry is divided into categories and they are: facts taken directly from the opinion; plaintiff sufficiently alleged that Viveport Infinity is a place of public accommodation; plaintiff sufficiently alleged denial of access in contravention of the ADA; plaintiff sufficiently alleged that Vivepoint Infinity owns, leases, and/or operates a place of public accommodation; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

I

Facts Taken Directly from the Opinion

Plaintiff is profoundly deaf and his hearing and speaking abilities are limited. ECF No. 39 ¶ 6. He is a “big fan” of video games and has played them “all his life.” Id. ¶ 20. Plaintiff owns a device called an Oculus Rift which is a VR headset he uses to play VR video games and experience VR content.[1] Id. ¶ 21.

Defendants “are one of the biggest electronics companies in the world” and they “operate an online VR subscription service called Viveport Infinity.” Id. ¶ 14. Viveport Infinity is “the Netflix of VR” and offers “unlimited access to . . . thousands of VR content, including games, videos, and other apps and programs.” Id. ¶ 14-15. Like Netflix, subscribers can access Viveport Inifinity’s content from the comfort of their own homes. ECF No. 39 ¶ 19.

In addition to access to “more than $10,000 worth of critically acclaimed titles,” Viveport Infinity subscribers get “exclusive offers.” Id. ¶ 15. Currently, Viveport Infinity is the only subscription-based platform offering VR content. Id. ¶ 16.

Plaintiff’s Oculus Rift headset is compatible with Viveport Infinity. Id. ¶ 21. He would like to subscribe to Viveport Infinity and use its content but has not done so “because Defendants have failed to provide closed captioning on its VR content.” Id. ¶¶ 35-36. Closed captioning “is a system that displays text on video content,” and, as such, it allows “deaf and hard of hearing individuals [to] have the opportunity to enjoy movies or videos by reading the captioned text.” ECF No. ¶ 17. Since Plaintiff is deaf, he “requires closed captions to meaningfully access and understand any video content that has audio portions.” Id. ¶ 20.

While some of Viveport Infinity’s content does offer closed captioning, many titles in its catalog do not—unlike Netflix which “provides closed captions or subtitles for all its content.” Id. ¶ 18. Viveport Infinity’s failure to provide closed captioning renders much of its content inaccessible to Plaintiff and “other deaf and hard of hearing individuals.” Id. ¶¶ 20, 23. Without closed captions, Plaintiff cannot “understand and follow the audio portions of various VR content” and he therefore “cannot fully and equally enjoy [Viveport Infinity’s] services.” Id. ¶ 24. This “increas[es] the sense of isolation and stigma” felt by Plaintiff and others like him as they “cannot enjoy VR and video games and cannot share the experience with their families or friends.” ECF No. 39 ¶ 31. Furthermore, it prevents Plaintiff from participating in the “latest . . . trends and issues” in the VR game-playing community. Id. ¶ 33. This causes Plaintiff “frustration, anxiety, humiliation, loss of enjoyment, and anger.” Id. ¶ 34.

II

Plaintiff Sufficiently Alleged That Viveport Infinity Is a Place of Public Accommodation

  1. The ADA defines a place of public accommodation as anything fitting into one of the categories listed in 42 U.S.C. §12181(7).
  2. While the Second Circuit has not yet considered a case where a defendant operated no physical space open to the public but nevertheless provided goods or services to the public, a handful of district courts in the Second Circuit have interpreted analogous cases to imply that title III of the ADA extends to online fora offering goods and services.
  3. The court adopts and agrees with the statutory interpretation discussed at length in National Federation of the Blind v. Scribd Inc., which we discussed the settlement of here. Regarding that decision, which we discussed here, the court said as follows: 1) the meaning of public accommodation under the ADA is ambiguous; 2) adopting a narrow interpretation of what is a place of public accommodation by requiring a physical structure or some connection to a physical threshold results in arbitrary treatment; 3) the ADA’s legislative history requires a resolution of any ambiguity in favor of the plaintiff because the Internet plays such a critical role in the personal and professional lives of Americans so that excluding persons with disabilities from access to covered entities that use it as their principal means of reaching the public defeats the purpose of the ADA; and 4) adopting such a narrow interpretation would run afoul of the purposes of the ADA and severely frustrates Congress’s intent that individuals with disabilities fully enjoy the goods, services, privileges, and advantages available indiscriminately to other members of the general public.
  4. In a footnote, the court says that a limiting principle is required otherwise everything on the Internet would be a place of public accommodation. This case involves a service akin to Netflix, which involved services for streaming movie and television programming. It is also akin to Scribd, which involved services for accessing collection of e-books, academic papers, legal filings, and other user-uploaded digital documents.
  5. The virtual reality programming could be: 1) a service establishment in that it provides customers with the ability to stream video programming through the Internet; 2) a place of exhibition in that it displays movies, television programming, and other content; or 3) a rental establishment in that it engages customers to pay for the rental of video programming.

 

 

III

Plaintiff Sufficiently Alleged Denial of Access in Contravention of the ADA.

  1. The ADA regulates access to goods and services but not the kind of goods and services offered by the regulated entity.
  2. Even for goods and services, the ADA requires that regulated entities ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps fundamentally alters the nature of the good or service or results in an undue burden.
  3. Where equal access is in question, the ultimate decision as to what measures to take rests with the place of public accommodation provided that the method chosen results in effective communication.
  4. While no one specific form of auxiliary aid is mandated to make out a claim under this theory, a plaintiff must plead facts indicating that a defendant refused her any means of effective communication with respect to the goods or services in question.
  5. Plaintiff alleged that: 1) Viveport Infinity is currently the only subscription-based platform offering virtual reality content; 2) defendants failed to provide closed captioning on its virtual reality content; 3) defendant’s failure to provide closed captioning renders much of its content inaccessible to plaintiff and other Deaf, deaf and hard of hearing individuals; and 4) plaintiff cannot understand and follow the audio portions of various virtual reality content and therefore cannot fully and equally enjoy defendant’s services. As such, a plausible inference exists that the defendant did not offer any legally sufficient auxiliary aids.

IV

Plaintiff Sufficiently Alleged That Viveport Infinity Owns, Leases, and/or Operates a Place of Public Accommodation

  1. At the motion to dismiss stage, plaintiff’s allegations that the defendants own, lease, and/or operate a place of public accommodation and that they have the ability to caption all of their content just like Netflix captions all of their content is sufficient to get past a motion to dismiss.
  2. Defendants contention that there is a lack of sufficient facts to establish that they control, or operate the VR content, or that they have necessary intellectual property ownership or permission from the owners of the virtual reality content to caption the content is an issue for discovery and not an issue on a motion to dismiss.

V

Thoughts/Takeaways

  1. There are two issues in this case: 1) is a place of public accommodation involved; and 2) just what is possible with respect to providing effective communications. In other words, effective communications are an additional obligation that places of public accommodation face, as well as governmental entities for that matter.
  2. The current status of the case is that an answer has now been filed.
  3. The attorney representing the plaintiff in this case, Andrew Rozynski, is the same attorney who filed a petition for rehearing in Cummings.
  4. With respect to what is a place of public accommodation, this court adopts the Scribd approach, which asks whether what is going on is of the type listed in one of the categories in 42 U.S.C. §12181(7).
  5. Look for the Supreme Court to eventually get involved in trying to figure out just how a place of public accommodation is defined. The two most common approaches in the courts are the gateway theory, which can mean different things in different courts, and the, “of the type” listed in 42 U.S.C. §12181(7), which this court adopts. Hazarding a guess as to what the Supreme Court will do is a fools errand. However, the Supreme Court very well may have telegraphed where it is going with its South Dakota v. Wayfair decision, which we discussed here. I certainly believe a plaintiff would run a risk of legal malpractice if they don’t bring up the South Dakota v. Wayfair decision to the Supreme Court when arguing whether an Internet only business is a place of public accommodation.
  6. Plaintiff’s are not out of the woods yet because the court said that there may be issues of intellectual property ownership in getting permission from owners so as to show that the defendant do not control or operate the virtual reality content. Definitely look for the defendants to push that as it goes through discovery.
  7. This is not a tester situation because plaintiff alleged that he already has and uses a virtual reality headset to play virtual reality videogame and experienced virtual reality content.
  8. Readers may also want to reread Silva I, which we discussed here.

 

 

 

 

Today’s blog entry takes a look at three different cases that either expand on prior blog entries or talk about subsequent developments with prior blog entries. This week is absolutely crazy for me as my daughter is graduating high school this week, probably on Friday, and we have company coming in today. So, the blog entry will be pretty short despite covering three different cases. As usual the blog entry is divided into categories and they are: DOJ statement of interest in State of Illinois v. CSL Plasma, Inc.; ADA testers have to show more than just testing a website for ADA compliance in order to have standing; and a Cummings update.

 

I

DOJ Statement of Interest in State of Illinois v. CSL Plasma, Inc.

 

CSL plasma is back for discussion with another case where they are arguing that they are not a place of public accommodation. This one is before Judge Roland in the Northern District of Illinois, Eastern Division. The Eastern Division of Illinois is Chicago and Chicago Metro. We have previously talked about whether plasma centers are a place of public accommodation three times before, see this blog entry. Here, the DOJ takes the position that the 10th Circuit and the Third Circuit are correct in holding that plasma donation centers are service establishments under the plain meaning of title III. They also say that the Fifth Circuit got it wrong when it said that plasma centers were not service establishments. The DOJ conclusion is based upon both a plain reading of the statute, the ADA’s statutory admonition that it needs to be construed broadly, and the ADA’s legislative history. CSL Plasma is a frequent defendant on these matters and is consistent in taking the position that they are not a place of public accommodation. Since there is a circuit court split on the issue, it is only a matter of time before the Supreme Court steps in. I am not at this point in time going to hazard a guess as to what the Supreme Court will do. I have also recently learned that gauging what they will do from oral argument is a very tricky endeavor indeed.

 

II

ADA Testers Have to Show More Than Just Testing a Website for ADA Compliance In Order to Have Standing

 

Previously, I have blogged, such as here, on the courts clamping down on serial plaintiffs and questioning whether tester standing with respect to title II and title III of the ADA is a thing any longer. On that line of cases, the United States District Court for the Northern District of California on May 16, 2022, issued a two-page order dismissing a serial website plaintiff claim in denying leave to amend with respect to the ADA claim. It also declined to exercise supplemental jurisdiction over plaintiff’s Unruh act claim. With respect to supplemental jurisdiction, I previously talked about that in this blog entry.

 

The key element to note about this case are: 1) plaintiff disclaimed any intention to visit the real estate physical office and did not wish to use the real estate website to facilitate access to services or goods beyond the website itself (a pure tester situation); 2) the Ninth Circuit has never held that the inability to access information on a website as a sole basis for an ADA claim is a situation where a plaintiff could bring a title III action; and 3) no allegations were made that the website’s inaccessibility separately impeded access to the goods or services of the public accommodation.

 

In short, one can expect defendants, especially if they have some resources, to fight back seriously against serial plaintiffs alleging that their websites are inaccessible by defending on standing grounds. As mentioned here, the combination of Trans Union and Cummings is going to make the life of testers under title II and title III of the ADA quite difficult.

 

III

Cummings Update

 

The Supreme Court almost never grants re-hearings in a case that is has decided. However, Cummings has filed for a rehearing with the Supreme Court. The basis of the rehearing is that somehow the parties as well as the court missed the important fact that the Rehabilitation Act does allow by statute, 29 U.S.C. §794a(a)(1), for emotional distress damages with respect to employment matters. It is only with respect to nonemployment matters, that the Rehabilitation Act is unclear. Further, as mentioned in my blog entry discussing this case, here, the Supreme Court made a broad holding that spending clause legislation, including the Rehabilitation Act and the Affordable Care Act, simply do not allow for emotional distress damages because of traditional contract principles. So, a rehearing is necessary to clear up that the Supreme Court opinion in Cummings only applies to nonemployment situations with respect to the Rehabilitation Act if the court believes that the explicit statutory provision in the Rehabilitation Act for emotional distress in employment matters does not color the decision with respect to emotional distress claims in nonemployment matters. It will be interesting to see what happens because as the petition for rehearing freely acknowledges, rehearings are just about never granted. If anything, the petition for rehearing is a public facing document offering a roadmap for plaintiffs bringing employment discrimination claims under §504 of the Rehabilitation Act to get around motions by the defense to have their emotional distress component of their claims dismissed. It will be certainly interesting to see what the Supreme Court does.

 

Before signing off, you may wonder why you would bring a §504 of the Rehabilitation Act claim at all in an employment situation and not an ADA title I claim, especially considering the fact that causation under §504 is “solely by reason of,” whereas the ADA per Bostock, which we discussed here, is most likely determining factor. The answer is that the ADA applies to employers of 15 or more individuals. On the other hand, the Rehabilitation Act applies to any entity taking federal funds. So, if an employer has less than 15 people is involved, §504 of the Rehabilitation Act would be the claim alleged and not title I of the ADA.

 

Last week, both the DOJ and the EEOC issued technical assistance memorandums/documents detailing their concerns about using AI in employment. It definitely made big news. As someone who knows individuals have gone through AI processes in hiring, these guidances are not surprising as one just had to figure that AI was being used to screen out people with disabilities. This blog entry is going to be organized a bit differently. The categories are: DOJ AI document key takeaways; and EEOC technical assistance document on AI. My thoughts/takeaways for the EEOC document appear in my thoughts § underneath each section where a thoughts/takeaways exists.

 

I

DOJ AI Document Key Takeaways

 

  1. In employment matters, DOJ enforces disability discrimination laws with respect to state and local government employers.
    • Still a good idea to exhaust administrative remedies with EEOC first.
  1. DOJ will look seriously at whether the AI screens out persons with disabilities.
  2. Employers must use accessible tests measuring the applicant’s job skills and not the disability, or they must make other adjustments to the hiring process so that a qualified person is not eliminated because of a disability.
  3. Know what a reasonable accommodation is.
    • Starting line analogy.
    • DOJ Guidance on AI is here.
  4. Don’t forget about the EEOC guidance on AI in employment, here and immediately below.

 

II

EEOC Technical Assistance Document on AI

 

Employers now have a wide variety of computer-based tools available to assist them in hiring workers, monitoring worker performance, determining pay or promotions, and establishing the terms and conditions of employment. Employers may utilize these tools in an attempt to save time and effort, increase objectivity, or decrease bias. However, the use of these tools may disadvantage job applicants and employees with disabilities. When this occurs, employers may risk violating federal Equal Employment Opportunity (“EEO”) laws that protect individuals with disabilities.

The Questions and Answers in this document explain how employers’ use of software that relies on algorithmic decision-making may violate existing requirements under Title I of the Americans with Disabilities Act (“ADA”). This technical assistance also provides practical tips to employers on how to comply with the ADA, and to job applicants and employees who think that their rights may have been violated.

The Equal Employment Opportunity Commission (“EEOC” or “the Commission”) enforces, and provides leadership and guidance on, the federal EEO laws prohibiting employment discrimination on the basis of race, color, national origin, religion, and sex (including pregnancy, sexual orientation, and gender identity), disability, age (over 40) and genetic information. This publication is part of an ongoing effort by the EEOC to educate employers, employees, and other stakeholders about the application of EEO laws when employers use employment software and applications, some of which incorporate algorithmic decision-making.

Background

As a starting point, this section explains the meaning of three, central terms used in this document—software, algorithms, and artificial intelligence (“AI”) —and how, when used in a workplace, they relate to each other.

  • Software: Broadly, “software” refers to information technology programs or procedures that provide instructions to a computer on how to perform a given task or function. “Application software” (also known as an “application” or “app”) is a type of software designed to perform or to help the user perform a specific task or tasks. The United States Access Board is the source of these definitions.

There are many different types of software and applications used in employment, including: automatic resume-screening software, hiring software, chatbot software for hiring and workflow, video interviewing software, analytics software, employee monitoring software, and worker management software.

  • Algorithms: Generally, an “algorithm” is a set of instructions that can be followed by a computer to accomplish some end. Human resources software and applications use algorithms to allow employers to process data to evaluate, rate, and make other decisions about job applicants and employees. Software or applications that include algorithmic decision-making tools may be used at various stages of employment, including hiring, performance evaluation, promotion, and termination.
  • Artificial Intelligence (“AI”): Some employers and software vendors use AI when developing algorithms that help employers evaluate, rate, and make other decisions about job applicants and employees. In the National Artificial Intelligence Initiative Act of 2020 at section 5002(3), Congress defined “AI” to mean a “machine-based system that can, for a given set of human-defined objectives, make predictions, recommendations or decisions influencing real or virtual environments.” In the employment context, using AI has typically meant that the developer relies partly on the computer’s own analysis of data to determine which criteria to use when making employment decisions. AI may include machine learning, computer vision, natural language processing and understanding, intelligent decision support systems, and autonomous systems. For a general discussion of AI, which includes machine learning, see National Institute of Standards and Technology Special Publication 1270, Towards a Standard for Identifying and Managing Bias in Artificial Intelligence.

Employers may rely on different types of software that incorporate algorithmic decision-making at a number of stages of the employment process. Examples include: resume scanners that prioritize applications using certain keywords; employee monitoring software that rates employees on the basis of their keystrokes or other factors; “virtual assistants” or “chatbots” that ask job candidates about their qualifications and reject those who do not meet pre-defined requirements; video interviewing software that evaluates candidates based on their facial expressions and speech patterns; and testing software that provides “job fit” scores for applicants or employees regarding their personalities, aptitudes, cognitive skills, or perceived “cultural fit” based on their performance on a game or on a more traditional test. Each of these types of software may include AI.

My Thoughts: a nice job of describing the background for the guidance document and providing definitions of key terms.

ADA Basics

  1. What is the ADA and how does it define “disability”?

The ADA is a federal civil rights law. Title I of the ADA prohibits employers, employment agencies, labor organizations, and joint labor-management committees with 15 or more employees from discriminating on the basis of disability. Other parts of the ADA, not discussed here, ensure that people with disabilities have full access to public and private services and facilities.

The ADA has a very specific definition of a current “disability.” A physical or mental impairment meets the ADA’s definition of a current “disability” if it would, when left untreated, “substantially limit” one or more “major life activities.” Major life activities include, for example, seeing, reaching, communicating, speaking concentrating, or the operation of major bodily functions, such as brain or neurological functions. (There are two other definitions of “disability” that are not the subject of this discussion. For more information on the definition of “disability” under the ADA, see EEOC’s Questions and Answers on the ADA Amendments Act.

My Thoughts: I am not sure why the focus is on “current disability.” The ADA prongs are: actual disability, record of disability, and regarded as having a disability. You could have a disability under the ADA if it is not current if you have a record of a disability or you are regarded as having a disability. Certainly, an actual disability needs to be current, but that isn’t how this document is explaining things.

A condition does not need to be permanent or severe, or cause a high degree of functional limitation, to be “substantially limiting.” It may qualify as substantially limiting, for example, by making activities more difficult, painful, or time-consuming to perform as compared to the way that most people perform them. In addition, if the symptoms of the condition come and go, the condition still will qualify as a disability if it substantially limits a major life activity when active. Many common and ordinary medical conditions will qualify.

My Thoughts: interesting that the EEOC refers to “painful.” See this blog entry as to why I found that interesting.

 

  1. How could an employer’s use of algorithmic decision-making tools violate the ADA?

The most common ways that an employer’s use of algorithmic decision-making tools could violate the ADA are:

  • The employer does not provide a “reasonable accommodation” that is necessary for a job applicant or employee to be rated fairly and accurately by the algorithm. (See Questions 4–7 below.)
  • The employer relies on an algorithmic decision-making tool that intentionally or unintentionally “screens out” an individual with a disability, even though that individual is able to do the job with a reasonable accommodation. “Screen out” occurs when a disability prevents a job applicant or employee from meeting—or lowers their performance on—a selection criterion, and the applicant or employee loses a job opportunity as a result. A disability could have this effect by, for example, reducing the accuracy of the assessment, creating special circumstances that have not been taken into account, or preventing the individual from participating in the assessment altogether. (See Questions 8–12 below.)
  • The employer adopts an algorithmic decision-making tool for use with its job applicants or employees that violates the ADA’s restrictions on disability-related inquiries and medical examinations. (See Question 13 below.)

An employer’s use of an algorithmic decision-making tool may be unlawful for one of the above reasons, or for several such reasons.

My Thoughts: for those in the disability rights field and aware of how AI is used in the hiring process, the first thing that immediately comes to mind is screen out. This particular section of the document lets you know that there may be other issues as well, such as the disability related inquiries and medical examinations scheme, which we discussed here among other places.

  1. Is an employer responsible under the ADA for its use of algorithmic decision-making tools even if the tools are designed or administered by another entity, such as a software vendor?

In many cases, yes. For example, if an employer administers a pre-employment test, it may be responsible for ADA discrimination if the test discriminates against individuals with disabilities, even if the test was developed by an outside vendor. In addition, employers may be held responsible for the actions of their agents, which may include entities such as software vendors, if the employer has given them authority to act on the employer’s behalf.

My Thoughts:

  1. As we discussed here, the ADA is a nondelegable duty. Accordingly, indemnification agreements may be problematic. However, an employer may strongly wish to consider a reimbursement agreement with the AI vendor.
  2. Don’t forget about 29 C.F.R. §1630.6, which provides: “It is unlawful for a covered entity to participate in a contractual or other arrangement or relationship that has the effect of subjecting the covered entity‘s own qualified applicant or employee with a disability to the discrimination prohibited by this part.”

Algorithmic Decision-Making Tools and Reasonable Accommodation

  1. What is a reasonable accommodation?

A reasonable accommodation is a change in the way things are done that helps a job applicant or employee with a disability apply for a job, do a job, or enjoy equal benefits and privileges of employment. Examples of reasonable accommodations may include specialized equipment, alternative tests or testing formats, permission to work in a quiet setting, and exceptions to workplace policies. These are just examples—almost any change can be a reasonable accommodation—although an employer never has to lower production or performance standards or eliminate an essential job function as a reasonable accommodation.

My Thoughts:

  1. I like to think of reasonable accommodations as anything that gets the person with a disability to the same starting line as a person without a disability. Once you have that, it is then up to the person with the disability demonstrate what they can do.
  2. It is a good idea to keep the essential functions of the job in your job descriptions current.

 

5. May an employer announce generally (or use software that announces generally) that reasonable accommodations are available to job applicants and employees who are asked to use or be evaluated by an algorithmic decision-making tool, and invite them to request reasonable accommodations when needed?

Yes. An employer may tell applicants or employees what steps an evaluation process includes and may ask them whether they will need reasonable accommodations to complete it. For example, if a hiring process includes a video interview, the employer or software vendor may tell applicants that the job application process will involve a video interview and provide a way to request a reasonable accommodation. Doing so is a “promising practice” to avoid violating the ADA.

My Thoughts: I am not sure that this is a common practice as of this moment. The problem that is likely to be run into is a debate over whether the reasonable accommodation requested would fundamentally alter the nature of the AI. However, that isn’t the end of the story because the very nature of the AI may be screening out people with disabilities. So, there is a tension between the utility of the AI altogether and the screen out prohibitions of the ADA.

  1. When an employer uses algorithmic decision-making tools to assess job applicants or employees, does the ADA require the employer to provide reasonable accommodations?

If an applicant or employee tells the employer that a medical condition may make it difficult to take a test, or that it may cause an assessment result that is less acceptable to the employer, the applicant or employee has requested a reasonable accommodation. To request an accommodation, it is not necessary to mention the ADA or use the phrase “reasonable accommodation.”

My thoughts:

  1. “Medical condition,” is an interesting turn of phrase as the ADA uses the term, “physical or mental impairment.” I suppose a physical or mental impairment is a “medical condition,” but that isn’t the statutory language.
  2. Magic words, as we have discussed numerous times, such as here, are not required for seeking a reasonable accommodation.

Under the ADA, employers need to respond promptly to requests for reasonable accommodation.

 

If it is not obvious or already known whether the requesting applicant or employee has an ADA disability and needs a reasonable accommodation because of it, the employer may request supporting medical documentation.

 

My Thoughts:

  1. You don’t have an automatic right to request medical documentation. That right exist if it is not obvious or already known whether the requesting applicant or employee has an ADA disability. That said, “obvious,” and “already known,” can be very elastic terms.
  2. Keep any request for medical documentation reasonable and narrowly focused to the situation at hand.
  3. I never like people referring to “undue hardship,” as involving significant difficulty or expense because there is a lot more to it than just that statement. For example, the concept of undue hardship includes both logistical undue hardship as well as financial undue hardship. Logistical undue hardship is akin to the title II and title III concept of fundamental alteration, which basically requires your business being turned upside down. Financial undue hardship means looking to the entire resources of the entity.

 

When the documentation shows that a disability might make a test more difficult to take or that it might reduce the accuracy of an assessment, the employer must provide an alternative testing format or a more accurate assessment of the applicant’s or employee’s skills as a reasonable accommodation, unless doing so would involve significant difficulty or expense (also called “undue hardship”).

For example, a job applicant who has limited manual dexterity because of a disability may report that they would have difficulty taking a knowledge test that requires the use of a keyboard, trackpad, or other manual input device. Especially if the responses are timed, this kind of test will not accurately measure this particular applicant’s knowledge. In this situation, the employer would need to provide an accessible version of the test (for example, one in which the applicant is able to provide responses orally, rather than manually) as a reasonable accommodation, unless doing so would cause undue hardship. If it is not possible to make the test accessible, the ADA requires the employer to consider providing an alternative test of the applicant’s knowledge as a reasonable accommodation, barring undue hardship.

Other examples of reasonable accommodations that may be effective for some individuals with disabilities include extended time or an alternative version of the test, including one that is compatible with accessible technology (like a screen-reader) if the applicant or employee uses such technology. Employers must give individuals receiving reasonable accommodation equal consideration with other applicants or employees not receiving reasonable accommodations.

The ADA requires employers to keep all medical information obtained in connection with a request for reasonable accommodation confidential and must store all such information separately from the applicant’s or employee’s personnel file.

My Thoughts: the confidentiality requirements of all medical information is an easy one to forget about. Don’t do that.

  1. Is an employer responsible for providing reasonable accommodations related to the use of algorithmic decision-making tools, even if the software or application is developed or administered by another entity?

In many cases, yes. As explained in Question 3 above, an employer may be held responsible for the actions of other entities, such as software vendors, that the employer has authorized to act on its behalf. For example, if an employer were to contract with a software vendor to administer and score on its behalf a pre-employment test, the employer likely would be held responsible for actions that the vendor performed—or did not perform—on its behalf. Thus, if an applicant were to tell the vendor that a medical condition was making it difficult to take the test (which qualifies as a request for reasonable accommodation), and the vendor did not provide an accommodation that was required under the ADA, the employer likely would be responsible even if it was unaware that the applicant reported a problem to the vendor.

My Thoughts: this is a very respondeat superior type approach. Don’t forget about 29 C.F.R. §1630.6, which makes it clear that an employer cannot discriminate against employees or prospective applicants by way of contracting.

Algorithmic Decision-Making Tools That Screen Out Qualified Individuals with Disabilities

  1. When is an individual “screened out” because of a disability, and when is screen out potentially unlawful?

Screen out occurs when a disability prevents a job applicant or employee from meeting—or lowers their performance on—a selection criterion, and the applicant or employee loses a job opportunity as a result. The ADA says that screen out is unlawful if the individual who is screened out is able to perform the essential functions of the job with a reasonable accommodation if one is legally required.[1]  Questions 9 and 10 explain the meaning of “screen out” and Question 11 provides examples of when a person who is screened out due to a disability nevertheless can do the job with a reasonable accommodation.

My Thoughts: this is an easy to understand meaning of the term, “screen out.”

  1. Could algorithmic decision-making tools screen out an individual because of a disability? What are some examples?

Yes, an algorithmic decision-making tool could screen out an individual because of a disability if the disability causes that individual to receive a lower score or an assessment result that is less acceptable to the employer, and the individual loses a job opportunity as a result.

My Thoughts: proving up that a person with a disability got a lower score on an AI assessment is probably not all that difficult. However, the EEOC makes it clear that you also have to show that the individual lost a job opportunity as a result of that, which would be much harder to show.

An example of screen out might involve a chatbot, which is software designed to engage in communications online and through texts and emails. A chatbot might be programmed with a simple algorithm that rejects all applicants who, during the course of their “conversation” with the chatbot, indicate that they have significant gaps in their employment history. If a particular applicant had a gap in employment, and if the gap had been caused by a disability (for example, if the individual needed to stop working to undergo treatment), then the chatbot may function to screen out that person because of the disability.

My Thoughts: many labor and employment management side attorneys are saying now in their blogs and on social media that using gaps in employment as a negative factor for an applicant is just a really bad idea, especially with what has happened during the Covid-19 pandemic.

Another kind of screen out may occur if a person’s disability prevents the algorithmic decision-making tool from measuring what it is intended to measure. For example, video interviewing software that analyzes applicants’ speech patterns in order to reach conclusions about their ability to solve problems is not likely to score an applicant fairly if the applicant has a speech impediment that causes significant differences in speech patterns. If such an applicant is rejected because the applicant’s speech impediment resulted in a low or unacceptable rating, the applicant may effectively have been screened out because of the speech impediment.

My Thoughts: AI that uses speech patterns to reach conclusions about prospective candidates abilities is terribly problematic for persons with disabilities. For example, I have a slight deaf accent. That accent is imperceptible to most hearing people unless they have worked with deaf individuals or have a background in speech therapy. Nevertheless, voice dictation technology, which I have used for years due to joint issues, is a lot harder for me to use because of that accent. Voice dictation simply takes a lot longer to get used to my accent than it does for hearing people. Also, keep in mind that many disabilities have speech impediment that are associated with it. Finally, a culturally deaf individual quite often doesn’t use their voice at all. In short, if an AI tool is using speech patterns to influence the results, they would do well to eliminate that altogether because too many people with disabilities have speech patterns that are not typical.

  1. Some algorithmic decision-making tools may say that they are “bias-free.” If a particular tool makes this claim, does that mean that the tool will not screen out individuals with disabilities?

When employers (or entities acting on their behalf such as software vendors) say that they have designed an algorithmic decision-making tool to be “bias-free,” it typically means that they have taken steps to prevent a type of discrimination known as “adverse impact” or “disparate impact” discrimination under Title VII, based on race, sex, national origin, color, or religion. This type of Title VII discrimination involves an employment policy or practice that has a disproportionately negative effect on a group of individuals who share one of these characteristics, like a particular race or sex.[2]

To reduce the chances that the use of an algorithmic decision-making tool results in disparate impact discrimination on bases like race and sex, employers and vendors sometimes use the tool to assess subjects in different demographic groups, and then compare the average results for each group. If the average results for one demographic group are less favorable than those of another (for example, if the average results for individuals of a particular race are less favorable than the average results for individuals of a different race), the tool may be modified to reduce or eliminate the difference.

The steps taken to avoid that kind of Title VII discrimination are typically distinct from the steps needed to address the problem of disability bias.[3] If an employer or vendor were to try to reduce disability bias in the way described above, doing so would not mean that the algorithmic decision-making tool could never screen out an individual with a disability. Each disability is unique. An individual may fare poorly on an assessment because of a disability, and be screened out as a result, regardless of how well other individuals with disabilities fare on the assessment. Therefore, to avoid screen out, employers may need to take different steps beyond the steps taken to address other forms of discrimination.  (See Question 12.)

My Thoughts: the very last ¶ of question 10, should be a very big cautionary note for the use of AI in hiring.

  1. Screen out because of a disability is unlawful if the individual who is screened out is able to perform the essential functions of the job, with a reasonable accommodation if one is legally required. If an individual is screened out by an algorithmic decision-making tool, is it still possible that the individual is able to perform the essential functions of the job?

In some cases, yes. For example, some employers rely on “gamified” tests, which use video games to measure abilities, personality traits, and other qualities, to assess applicants and employees. If a business requires a 90 percent score on a gamified assessment of memory, an applicant who is blind and therefore cannot play these particular games would not be able to score 90 percent on the assessment and would be rejected. But the applicant still might have a very good memory and be perfectly able to perform the essential functions of a job that requires a good memory.

Even an algorithmic decision-making tool that has been “validated” for some purposes might screen out an individual who is able to perform well on the job. To say that a decision-making tool has been “validated”[4] means that there is evidence meeting certain professional standards showing that the tool accurately measures or predicts a trait or characteristic that is important for a specific job. Algorithmic decision-making tools may be validated in this sense, and still be inaccurate when applied to particular individuals with disabilities. For example, the gamified assessment of memory may be validated because it has been shown to be an accurate measure of memory for most people in the general population, yet still screen out particular individuals who have good memories but are blind, and who therefore cannot see the computer screen to play the games.

An algorithmic decision-making tool also may sometimes screen out individuals with disabilities who could do the job because the tool does not take into account the possibility that such individuals are entitled to reasonable accommodations on the job. Algorithmic decision-making tools are often designed to predict whether applicants can do a job under typical working conditions. But people with disabilities do not always work under typical conditions if they are entitled to on-the-job reasonable accommodations.

My Thoughts: the question is whether a person can perform the essential functions of the job with it without reasonable accommodations. If the AI tool is only measuring how a person can perform the essential functions of the job without reasonable accommodations, that tool has a problem.

For example, some pre-employment personality tests are designed to look for candidates who are similar to the employer’s most successful employees—employees who most likely work under conditions that are typical for that employer.

My Thoughts: for what can happen when an employer uses personality tests to evaluate whether a person can do the essential functions of the job or to evaluate whether a person should be promoted, see Karraker v. Rent-A-Car Center, Inc., 411 F.3d 831 (7th Cir. 2005).

 

Someone who has Posttraumatic Stress Disorder (“PTSD”) might be rated poorly by one of these tests if the test measures a trait that may be affected by that particular individual’s PTSD, such as the ability to ignore distractions. Even if the test is generally valid and accurately predicts that this individual would have difficulty handling distractions under typical working conditions, it might not accurately predict whether the individual still would experience those same difficulties under modified working conditions—specifically, conditions in which the employer provides required on-the-job reasonable accommodations such as a quiet workstation or permission to use noise-cancelling headphones. If such a person were to apply for the job and be screened out because of a low score on the distraction test, the screen out may be unlawful under the ADA. Some individuals who may test poorly in certain areas due to a medical condition may not even need a reasonable accommodation to perform a job successfully.

My Thoughts: is it the disability that is being accommodated or is it the essential functions of the job that are being accommodated? You get two different places depending upon which if the question. For a discussion of this issue, see this blog entry.

  1. What could an employer do to reduce the chances that algorithmic decision-making tools will screen out someone because of a disability, even though that individual is able to perform the essential functions of the job (with a reasonable accommodation if one is legally required)?

First, if an employer is deciding whether to rely on an algorithmic decision-making tool developed by a software vendor, it may want to ask the vendor whether the tool was developed with individuals with disabilities in mind. Some possible inquiries about the development of the tool that an employer might consider include, but are not limited to:

  • If the tool requires applicants or employees to engage a user interface, did the vendor make the interface accessible to as many individuals with disabilities as possible?

My Thoughts: it is not a legal defense to my mind to say that the interface is accessible with many individuals with disabilities but not to a particular employee or applicant with the disability. Remember, the ADA requires an individualized analysis in every case.

  • Are the materials presented to job applicants or employees in alternative formats? If so, which formats? Are there any kinds of disabilities for which the vendor will not be able to provide accessible formats, in which case the employer may have to provide them (absent undue hardship)?

My Thoughts: don’t forget about 29 C.F.R. §1630.6.

  • Did the vendor attempt to determine whether use of the algorithm disadvantages individuals with disabilities? For example, did the vendor determine whether any of the traits or characteristics that are measured by the tool are correlated with certain disabilities?

My Thoughts: this should be a mandatory item on any AI vendor checklist.

If an employer is developing its own algorithmic decision-making tool, it could reduce the chances of unintentional screen out by taking the same considerations into account during its development process. Depending on the type of tool in question, reliance on experts on various types of disabilities throughout the development process may be effective. For example, if an employer is developing pre-employment tests that measure personality, cognitive, or neurocognitive traits, it may be helpful to employ psychologists, including neurocognitive psychologists, throughout the development process in order to spot ways in which the test may screen out people with autism or cognitive, intellectual, or mental health-related disabilities.

My Thoughts:

  1. You want to make sure that such individuals are not practitioners of ableism. That is, do they believe as persons without disabilities that they know what is best for persons with disabilities. The focus should be on whether the person with the disability can do the essential functions of the job with or without reasonable accommodations.
  2. Beta testing utilizing persons with disabilities is always a good idea for any AI tool.

 

Second, regardless of whether the employer or another entity is developing an algorithmic decision-making tool, the employer may be able to take additional steps during implementation and deployment to reduce the chances that the tool will screen out someone because of a disability, either intentionally or unintentionally. Such steps include:

  • clearly indicating that reasonable accommodations, including alternative formats and alternative tests, are available to people with disabilities;
  • providing clear instructions for requesting reasonable accommodations; and
  • in advance of the assessment, providing all job applicants and employees who are undergoing assessment by the algorithmic decision-making tool with as much information about the tool as possible, including information about which traits or characteristics the tool is designed to measure, the methods by which those traits or characteristics are to be measured, and the disabilities, if any, that might potentially lower the assessment results or cause screen out.

My Thoughts: the final bullet in this section is very interesting because of the proprietary information involved. One wonders what kind of resistance the AI company will put up with respect to this bullet. It seems to me there would be an argument that proprietary information is involved. Even so, I am not sure that approach will work in the face of a lawsuit alleging screen out as this information would certainly be related to whether screen out is occurring.

Taking these steps will provide individuals with disabilities an opportunity to decide whether a reasonable accommodation may be necessary. For example, suppose that an employer uses an algorithm to evaluate its employees’ productivity, and the algorithm takes into account the employee’s average number of keystrokes per minute. If the employer does not inform its employees that it is using this algorithm, an employee who is blind or has a visual impairment and who uses voice recognition software instead of a keyboard may be rated poorly and lose out on a promotion or other job opportunity as a result. If the employer informs its employees that they will be assessed partly on the basis of keyboard usage, however, that same employee would know to request an alternative means of measuring productivity—perhaps one that takes into account the use of voice recognition software rather than keystrokes—as a reasonable accommodation.

My Thoughts: I am delighted to see that voice recognition software is specifically mentioned in this document because voice recognition software often gets lost in favor of screen readers. They both work on coding technology, but the results aren’t always the same. So, you need to evaluate for screen reading capabilities and separately for voice dictation capabilities.

Another way for employers to avoid ADA discrimination when using algorithmic decision-making tools is to try to ensure that no one is screened out unless they are unable to do the job, even when provided with reasonable accommodations. A promising practice is to only develop and select tools that measure abilities or qualifications that are truly necessary for the job—even for people who are entitled to an on-the-job reasonable accommodation. For example, an employer who is hiring cashiers might want to ensure that the chatbot software it is using does not reject applicants who are unable to stand for long periods. Otherwise, a chatbot might reject an applicant who uses a wheelchair and may be entitled to a lowered cash register as a reasonable accommodation.

My Thoughts:

  1. This is excellent advice. That is, AI should not screen out anyone unless they are unable to do the job with or without reasonable accommodations.
  2. Same question as earlier. That is, is it the disability being accommodated or the essential functions of the job?

As a further measure, employers may wish to avoid using algorithmic decision-making tools that do not directly measure necessary abilities and qualifications for performing a job, but instead make inferences about those abilities and qualifications based on characteristics that are correlated with them. For example, if an open position requires the ability to write reports, the employer may wish to avoid algorithmic decision-making tools that rate this ability by measuring the similarity between an applicant’s personality and the typical personality for currently successful report writers. By doing so, the employer lessens the likelihood of rejecting someone who is good at writing reports, but whose personality, because of a disability, is uncommon among successful report writers.

My Thoughts: as a preventive law matter, I would definitely avoid using logarithmic decision-making tools that do not directly measure necessary abilities and qualifications for performing a job, but instead make inferences about those abilities and qualification based on characteristics correlated with them. It is just a bad idea. It also leads ableism interfering with employment decisions.

Algorithmic Decision-Making Tools and Disability-Related Inquiries and Medical Examinations

  1. How could an employer’s use of algorithmic decision-making tools violate ADA restrictions on disability-related inquiries and medical examinations?

An employer might violate the ADA if it uses an algorithmic decision-making tool that poses “disability-related inquiries” or seeks information that qualifies as a “medical examination” before giving the candidate a conditional offer of employment.[5] This type of violation may occur even if the individual does not have a disability.

My Thoughts:

  1. For a discussion of the medical exam/disability related inquiries scheme, see this blog entry.
  2. You do not have to be a person with a disability to benefit from violations of the disability related and medical examination scheme.

An assessment includes “disability-related inquiries” if it asks job applicants or employees questions that are likely to elicit information about a disability or directly asks whether an applicant or employee is an individual with disability.

My Thoughts: no argument from me.

 

It qualifies as a “medical examination” if it seeks information about an individual’s physical or mental impairments or health.

My thoughts: this is an oversimplification. See this blog entry for example.

An algorithmic decision-making tool that could be used to identify an applicant’s medical conditions would violate these restrictions if it were administered prior to a conditional offer of employment. Not all algorithmic decision-making tools that ask for health-related information are “disability-related inquiries or medical examinations,” however. For example, a personality test is not posing “disability-related inquiries” because it asks whether the individual is “described by friends as being ‘generally optimistic,’” even if being described by friends as generally optimistic might somehow be related to some kinds of mental health diagnoses.

My Thoughts: but see Karraker.

Note, however, that even if a request for health-related information does not violate the ADA’s restrictions on disability-related inquiries and medical examinations, it still might violate other parts of the ADA. For example, if a personality test asks questions about optimism, and if someone with Major Depressive Disorder (“MDD”) answers those questions negatively and loses an employment opportunity as a result, the test may “screen out” the applicant because of MDD. As explained in Questions 8–11 above, such screen out may be unlawful if the individual who is screened out can perform the essential functions of the job, with or without reasonable accommodation.

My Thoughts: see Karraker.

Once employment has begun, disability-related inquiries may be made and medical examinations may be required only if they are legally justified under the ADA.

For more information on disability-related inquiries and medical examinations, see Pre-Employment Inquiries and Medical Questions & Examinations, and Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees under the ADA.

Promising Practices for Employers

  1. What can employers do to comply with the ADA when using algorithmic decision-making tools?
  • As discussed in Questions 4–7 above, employers must provide reasonable accommodations when legally required. Promising practices that may help employers to meet this requirement include:
    • Training staff to recognize and process requests for reasonable accommodation as quickly as possible, including requests to retake a test in an alternative format, or to be assessed in an alternative way, after the individual has already received poor results.
    • Training staff to develop or obtain alternative means of rating job applicants and employees when the current evaluation process is inaccessible or otherwise unfairly disadvantages someone who has requested a reasonable accommodation because of a disability.

My thoughts: regular training by competent and knowledgeable individuals is always a good idea.

    • If the algorithmic decision-making tool is administered by an entity with authority to act on the employer’s behalf, such as a testing company, asking the entity to forward all requests for accommodation promptly to be processed by the employer in accordance with ADA requirements. Alternatively, the employer could seek to enter into an agreement with the third party requiring it to provide reasonable accommodations on the employer’s behalf, in accordance with the employer’s obligations under the ADA.

My Thoughts: don’t forget about 29 C.F.R. §1630.6.

 

  • Employers should minimize the chances that algorithmic decision-making tools will disadvantage individuals with disabilities, either intentionally or unintentionally. Promising practices include:
    • Using algorithmic decision-making tools that have been designed to be accessible to individuals with as many different kinds of disabilities as possible, thereby minimizing the chances that individuals with different kinds of disabilities will be unfairly disadvantaged in the assessments. User testing is a promising practice.

My Thoughts: don’t forget that the ADA is an individualized analysis with no exceptions

    • Informing all job applicants and employees who are being rated that reasonable accommodations are available for individuals with disabilities, and providing clear and accessible instructions for requesting such accommodations.

My thoughts: always a good idea.

    • Describing, in plain language and in accessible formats, the traits that the algorithm is designed to assess, the method by which those traits are assessed, and the variables or factors that may affect the rating.

My Thoughts: I am a big believer in plain language. The rest of this particular paragraph sets up the tension between proprietary information and proving up a screen out claim.

  • Employers may also seek to minimize the chances that algorithmic decision-making tools will assign poor ratings to individuals who are able to perform the essential functions of the job, with a reasonable accommodation if one is legally required. Promising practices include:
    • Ensuring that the algorithmic decision-making tools only measure abilities or qualifications that are truly necessary for the job—even for people who are entitled to an on-the-job reasonable accommodation.
    • Ensuring that necessary abilities or qualifications are measured directly, rather than by way of characteristics or scores that are correlated with those abilities or qualifications.

My Thoughts: both of the bullets immediately above are excellent preventive law approaches.

  • Before purchasing an algorithmic decision-making tool, an employer should ask the vendor to confirm that the tool does not ask job applicants or employees questions that are likely to elicit information about a disability or seek information about an individual’s physical or mental impairments or health, unless such inquiries are related to a request for reasonable accommodation. (The ADA permits an employer to request reasonable medical documentation in support of a request for reasonable accommodation that is received prior to a conditional offer of employment, when necessary, if the requested accommodation is needed to help the individual complete the job application process.)

My thoughts: this assumes that the disability is not obvious or known, which as mentioned before are elastic terms.

Promising Practices for Job Applicants and Employees Who Are Being Assessed by Algorithmic Decision-Making Tools

  1. What should I do to ensure that I am being assessed fairly by algorithmic decision-making tools?

If you have a medical condition that you think might qualify as an ADA disability and that could negatively affect the results of an evaluation performed by algorithmic decision-making tools, you may want to begin by asking for details about the employer’s use of such tools to determine if it might pose any problems related to your disability.

 

My Thoughts: it will be interesting to see how receptive the AI vendor is to this approach because of the worry about disclosing proprietary information. Vendors and employers want to be careful about retaliating against any individual that seeks this information, especially since the EEOC is suggesting that the information should be sought out in the first place.

 

If so, you may want to ask for a reasonable accommodation that allows you to compete on equal footing with other applicants or employees.

For example, if an employer’s hiring process includes a test, you may wish to ask for an accessible format or an alternative test that measures your ability to do the job in a way that is not affected by your disability. To request a reasonable accommodation, you need to notify an employer representative or official (for example, someone in Human Resources) or, if the employer is contracting with a software vendor, the vendor’s representative or the employer, that you have a medical condition, and that you need something changed because of the medical condition to ensure that your abilities are evaluated accurately.

Note that if your disability and need for accommodation are not obvious or already known, you may be asked to submit some medical documentation in support of your request for accommodation.

 

My Thoughts: keep any request for medical documentation reasonable and narrowly focused.

 

To find out more about asking for reasonable accommodations, see Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the ADA, available at https://www.eeoc.gov/laws/guidance/enforcement-guidance-reasonable-accommodation-and-undue-hardship-under-ada.

If you only discover that an algorithmic decision-making tool poses a problem due to your disability after the evaluation process is underway, you should notify the employer or software vendor as soon as you are aware of the problem and ask to be evaluated in a way that accurately reflects your ability to do the job, with a reasonable accommodation if one is legally required.

If you have already received a poor rating generated by an employer’s use of an algorithmic decision-making tool, you should think about whether your health condition might have prevented you from achieving a higher rating. For example, might a disability have negatively affected the results of an assessment, or made it impossible for you to complete an assessment? If so, you could contact the employer or software vendor immediately, explain the disability-related problem, and ask to be reassessed using a different format or test, or to explain how you could perform at a high level despite your performance on the test.

  1. What do I do if I think my rights have been violated?

If you believe that your employment-related ADA rights may have been violated, the EEOC can help you decide what to do next. For example, if the employer or software vendor refuses to consider your request for a reasonable accommodation to take or re-take a test, and if you think that you would be able to do the job with a reasonable accommodation, you might consider filing a charge of discrimination with the EEOC. A discrimination charge is an applicant’s or employee’s statement alleging that an employer engaged in employment discrimination and asking the EEOC to help find a remedy under the EEO laws.

If you file a charge of discrimination, the EEOC will conduct an investigation. Mediation, which is an informal and confidential way for people to resolve disputes with the help of a neutral mediator, may also be available. Because you must file an EEOC charge within 180 days of the alleged violation in order to take further legal action (or 300 days if the employer is also covered by a state or local employment discrimination law), it is best to begin the process early. It is unlawful for an employer to retaliate against you for contacting the EEOC or filing a charge.

If you would like to begin the process of filing a charge, go to our Online Public Portal at https://publicportal.eeoc.gov, visit your local EEOC office (see https://www.eeoc.gov/field-office for contact information), or contact us by phone at 1-800-669-4000 (voice), 1-800-669-6820 (TTY), or 1-844-234-5122 (ASL Video Phone).

For general information, visit the EEOC’s website (https://www.eeoc.gov).

This information is not new policy; rather, this document applies principles already established in the ADA’s statutory and regulatory provisions as well as previously issued guidance. The contents of this publication do not have the force and effect of law and are not meant to bind the public in any way. This publication is intended only to provide clarity to the public regarding existing requirements under the law. As with any charge of discrimination filed with the EEOC, the Commission will evaluate alleged ADA violations involving the use of software, algorithms, and artificial intelligence based on all of the facts and circumstances of the particular matter and applicable legal principles.

[1] To establish a screen out claim, the individual alleging discrimination must show that the challenged selection criterion screens out or tends to screen out an individual with a disability or a class of individuals with disabilities. See 42 U.S.C. § 12112(b)(6); 29 C.F.R. § 1630.10(a). To establish a defense, the employer must demonstrate that the challenged application of the criterion is “job related and consistent with business necessity,” as that term is understood under the ADA, and that “such performance cannot be accomplished by reasonable accommodation.” 42 U.S.C. §§ 12112(b)(6), 12113(a); 29 C.F.R. §§ 1630.10(a), 1630.15(b); 29 C.F.R. pt. 1630 app. §§ 1630.10, 1630.15 (b) and (c). A different defense to a claim that a selection criterion screens out or tends to screen out an individual with a disability or a class of individuals with disabilities is available when the challenged selection criterion is safety-based. See 2 U.S.C. § 12113(b); 29 C.F.R. § 1630.15(b)(2).

My Thoughts:

  1. These concepts blur into each other making it really complicated to figure out the burden of proof. What the EEOC is saying is that the person with the disability has two allege that the criterion screens out or tend to screen out individuals with disabilities or class of individuals with disabilities. Then, the employer has to demonstrate that the challenged application of the criterion is job-related and consistent with business necessity as the terms are understood by the ADA and that such performance cannot be accomplished by reasonable accommodations. For what is job-related and business necessity, see this blog entry for example.
  2. “Safety-based,” can be so vague as to run a semi-truck through it. That is certainly what the PHP industry is trying to do to circumvent the requirements of the ADA. If safety-based is the claim, plaintiff’s attorneys need to thoroughly analyze such claims so as to keep them in check.

[2] 42 U.S.C. § 2000e-2(a)(2), (k).

[3] When applying the tool to current employees or other subjects, there will generally be no way to know who has a disability and who does not.

[4] When employers or vendors claims that a tool designed to help employers decide which job applicants to hire has been “validated,” or that such a tool is a “valid predictor” of job performance, they may mean that there is evidence that the tool measures a trait or characteristic that is important for the job, and that the evidence meets the standards articulated in the Uniform Guidelines on Employee Selection Procedures (“UGESP”), 29 C.F.R. §§ 1607.5–9. UGESP articulates standards for compliance with certain requirements under Title VII. UGESP does not apply to disability discrimination. 29 C.F.R. pt. 1630 app. § 1630.10 (a) (“The Uniform Guidelines on Employee Selection Procedures . . .  do not apply to the Rehabilitation Act and are similarly inapplicable to this part.”).

[5] Note, however, that the ADA permits employers to request reasonable medical documentation in support of a request for reasonable accommodation, when necessary. This may be done prior to a conditional offer of employment if the request is for a reasonable accommodation that is needed to help the individual complete the job application process.