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

 

I

Court’s Reasoning in Williams

 

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

 

II

 

Court’s Reasoning in Frilando

 

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

 

III

Thoughts/Takeaways

 

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

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

 

I

Facts

 

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

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

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

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

 

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

 

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

 

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

 

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

 

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

 

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

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

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

 

II

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

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

 

III

 

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

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

 

IV

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

 

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

 

V

Dissenting Opinion by Judge Nalbandian

 

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

 

VI

Thoughts/Takeaways

 

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

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

 

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

 

§2: Findings and Purposes

 

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

 

§3: Definitions

 

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

 

§4: Access to Websites and Applications

 

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

 

§5: Rulemaking

 

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

 

§6: Periodic Review

 

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

 

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

 

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

 

§8: Recommendations

 

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

 

§9: Technical Assistance

 

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

 

§10: Study and Report on Emerging Technologies

 

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

 

§11: Rules of Construction

 

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

 

§12: Authorization of Appropriations

 

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

 

§13: Effective Date

 

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

Today’s blog entry deals with the question of whether the interactive process continues through any litigation and whether evidence of that interactive process taking place or not taking place when the case is being litigated can be brought into evidence. The case is Kovachich v. Department of Mental Health and Addiction Services, here, decided by the Supreme Court of Connecticut on September 27, 2022. As usual, the blog entry is divided into categories and they are: facts; majority reasoning that exhibits were properly admitted; Chief Justice Robinson’s dissenting opinion; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

The facts can be distilled quite a bit. What you have here is a plaintiff requesting from her employer a scent free work environment. While the employer granted accommodations, some employees failed to comply with the scent free working environment designation. As a result, plaintiff was exposed to scents at the jobsite that exacerbated her rhinitis and asthma and on multiple occasions triggered the need for emergency medical treatment. She then sought out legal counsel to ensure that she was protected in the workplace. The plaintiff, her counsel, and the human resources director did meet with the result being a notice was placed on the overtime sign-up sheet informing employees that the Brief Care Unit was scent free. However, with limited exceptions, no additional measures were taken to educate the workforce or to enforce the scent free designation by means of workforce discipline. This led to a filing with the Connecticut version of the equal employment opportunity commission.

 

At trial, plaintiff’s counsel sought to introduce into evidence an April 29, 2013, email from plaintiff’s counsel to a Connecticut Assistant Attorney General with a subject line, “request for demand.” the content of that email asked for a discussion to find a solution to ensure that plaintiff could be given a scent free environment. No such meeting took place in response to the email. Plaintiff’s counsel also offered into evidence in the email of May 30, 2013, stating that one of the plaintiff’s coworkers was also affected by scents in mandatory training situations and suggesting that online training as a possible accommodation. It also said her employer’s approach was the wrong one and that plaintiff intended to move forward with her case. It specifically inquired about what solutions the employer might propose. Plaintiff’s counsel also sought to introduce into evidence a July 22, 2013 letter containing a set of demands and ending with, “we would be happy to meet with representatives of the defendant who has authority to discuss and recommend these requests.” All of these exhibits were offered for purposes of illustrating plaintiff’s attempts at the interactive process. The trial court admitted the exhibits and wound up finding in favor of the plaintiff awarding $3800 of additional pension income. It also awarded the plaintiff $125,000 for the emotional distress caused by the actions of the employer and $415,389.50 in attorney fees.

 

The defendant appealed to the appellate court and the appellate court wound up agreeing with the defendant on that the various exhibits should not have been admitted and for other reasons as well. Plaintiff appealed to the Connecticut Supreme Court.

 

II

Court’s Reasoning That the Exhibits Were Properly Admitted

 

  1. It is true that the Connecticut Code of Evidence provides that evidence of an offer to compromise or settle a disputed claim is inadmissible on the issue of liability and the amount of the claim. Good policy reasons exist for that rule.
  2. It is also true that the Connecticut Code of Evidence allows an offer to compromise or settle a disputed claim into evidence if it is offered for another purpose. The list of purposes that appear in that statute are illustrated rather than exhaustive.
  3. Whether the exhibits should have been admitted is an evidentiary area issue reviewed for an abuse of discretion.
  4. The Connecticut Fair Employment Practices Act borrows from the ADA and requires an interactive process to figure out what accommodation can be put in place in order to overcome a person with a disability’s limitations.
  5. The need for the interactive process arises because both parties hold information that the other does not have or cannot easily obtain.
  6. The employee has the burden of initiating the interactive process must come forward with some suggestion of accommodation, and the employer then must make a good-faith effort to participate in that discussion.
  7. A plaintiff who fails to initiate or participate in the interactive process in good faith loses.
  8. An employer’s refusal to give an employee his or her specific requested accommodation does not necessarily amount to bad faith, so long at the employer makes an earnest attempt to discuss other potential reasonable accommodations.
  9. An employer’s failure to participate in the interactive process in good faith does not give rise to per se liability. However, it may be sufficient grounds for denying a defendant’s motion for summary judgment because it is at least some evidence of discrimination. In other words, in Connecticut a failure to engage in a good faith interactive process, is not a separate cause of action but can be introduced as evidence tending to show disability discrimination.
  10. The interactive process required by law is ongoing and is not exhausted by one effort. The ongoing interactive process continues during the course of plaintiff’s employment even after the plaintiff has filed a complaint alleging disability discrimination.
  11. The Connecticut Supreme Court found persuasive the reasoning of numerous federal courts that have been admitted evidence of compromise offers and negotiations for purposes of showing that the parties engaged in the interactive process.
  12. Nothing in the record establishes that the communications contained in the exhibits occurred within the context of the commission’s mandatory mediation program. In fact, plaintiff’s complaint had been pending with the commission for approximately one year and had been referred to in commission investigator at the time the document was generated, which means that the mandatory mediation had at least concluded.
  13. Although the communication contained in the exhibits occurred while the plaintiff’s complaint was pending before the commission, no evidence exists to indicate that the exhibits were part of the commission’s conciliation efforts, as opposed to their investigative efforts, or independent of the commission’s efforts altogether.
  14. The purpose of the evidentiary admissions was not to show liability but to show that a party was engaging in the interactive process.
  15. The trial court did not rely on the exhibits to find that the defendant engaged in discrimination. Instead, the trial court found that the defendant had failed to effectuate the plaintiff’s accommodations by an abject failure to make any reasonable effort to educate the staff about what a scent free environment meant and a supervisor’s refusal to do anything whatsoever about the scent free workplace environment provided by the ADA committee.
  16. While the trial court did rely on the defendant’s failure to respond to one of the exhibits to find that the good faith interactive process had broken down, that finding was based on defendant’s failure to present any evidence that it responded to the plaintiff’s communication, rather than the content of the communication itself.
  17. There was no error in the trial court’s determination that the exhibits were highly relevant to the defendant’s ability to react intelligently and legally to the plaintiff’s request for accommodations.
  18. The content of the communications demonstrate that the plaintiff wanted to continue with the interactive process but was getting nowhere.

 

III

Chief Justice Robinson Dissenting Opinion

 

  1. Failure to engage in interactive process is not entirely distinct from the liability inquiry as a matter of law.
  2. Most circuits find a failure to engage in the interactive process results in liability when a reasonable accommodation would otherwise have been possible.
  3. Connecticut Code of Evidence prohibits admissibility of a variety of things when it goes to liability in general.
  4. Majority view is too narrow as to what is part of the mediation process.

 

IV

Thoughts/Takeaways

 

  1. My thanks to Daniel Schwartz, who has a blog called the Connecticut Employer Law Blog (the link will take you to his discussion of the case), for first bringing my attention to this case.
  2. Six justices were in the majority with the Chief Justice being the lone dissenter.
  3. The interactive process is a continuing duty that continues through any litigation.
  4. I am not a Connecticut licensed attorney. Mileage may also vary depending upon jurisdiction.
  5. Federal case law exists holding that request to engage in the interactive process made during ongoing litigation can be admitted for the purpose of demonstrating the continuing obligation of engaging in the interactive process.
  6. As a preventive law matter, an employer would do well to respond to any accommodation offers while litigation is ongoing. Of course, as we have discussed numerous times in our blog, such as here, once an employer is put on notice that a need for accommodation exists (magic words are not required), the employer should engage in the interactive process.
  7. In most circuits, failure to engage in the interactive process is a separate cause of action. In those circuits, the dissenting opinion here may hold quite a bit of sway because of the failure to engage in interactive process being a liability issue.

Today’s blog entry come from the First Circuit, Laufer v. Acheson Hotels, LLC, here. It discusses standing and creates a split in the circuits. Undoubtedly, this issue will go before the Supreme Court. The facts of the case are pretty straightforward. What you have is a serial plaintiff and an avowed tester of Internet sites. In this case, she focuses on the hotel reservation rule and checks sites to see if they are complying with the specific hotel reservation rules in the Code of Federal Regulations. While she has an intention of visiting the website to see if the website is complying with the rule, she has no intention of actually visiting the properties themselves. Does she have standing? The First Circuit says she does. As usual, the blog entry is divided into categories and they are: court’s reasoning that plaintiff has standing; effects of prior Supreme Court cases and other Circuit Court decisions; plaintiff has standing to seek injunctive relief; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Court’s Reasoning That Plaintiff Has Standing

 

  1. When a place of public accommodation violates the ADA and discriminates against a person with disability, the ADA and the regulations implementing it permit a private individual to bring enforcement actions in federal court.
  2. The question is whether a complaint contains enough facts to demonstrate that the court has subject matter jurisdiction.
  3. In order to have standing, plaintiff must show that she: 1) suffered an injury in fact; 2) the injury is fairly traceable to the challenged conduct of the defendant; and 3) the injury is likely to be redressed by a favorable judicial decision.
  4. An injury in fact means the invasion of a legally protected interest that is concrete and particularized and actual or imminent, not conjectural or hypothetical.
  5. Standing doctrine has several purposes, including: 1) tends to ensure that the legal question presented to the court are resolved in a concrete factual context conducive to a realistic appreciation of the consequences of judicial action and not in the rarefied atmosphere of a debating society; 2) ensures federal courts don’t turn into a vehicle for the vindication of the value interests of concerned bystanders; and 3) reflects the separation of powers principles that courts should not be used to usurp the powers of the political branches.
  6. Since standing is jurisdictional, it cannot be waived or forfeited and can be raised at any time by anyone. When it is raised, the burden of showing standing rests on the party invoking the court’s jurisdiction. A party has to meet that burden otherwise the case has to be dismissed.
  7. In essence, standing is the question of whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues.
  8. Plaintiff’s claim is not so implausible that it is insufficient to preserve jurisdiction.
  9. The hotel reservation regulation, 28 C.F.R. §36.302(e), clearly provides that hotels in their reservation portals must provide some detail-enough detail-to allow individuals with disability to know what services they can enjoy.
  10. Concrete injuries must actually exist, though the injury does not have to be tangible. Intangible injuries, such as the suppression of free speech or religious exercise or the invasion of common law rights actionable without wallet injury, can also be concrete.
  11. In figuring out whether an injury is concrete, the Supreme Court has said that you look to both history and the judgment of Congress.
  12. It is the responsibility of judges to independently decide whether a plaintiff has suffered a concrete harm under article III even if Congress adamantly says they do.
  13. A plaintiff’s deliberate choice to see if accommodations are obeying a statute does not mean that her injury impact is any less real or concrete.
  14. The purpose of the reservation rule requiring that places of lodging make available in their accommodation descriptions on the reservation services information about the accessible feature in their hotel and guest rooms is to reasonably permit a person to assess independently whether a given hotel meets her accessibility needs, which was exactly what the plaintiff was doing.
  15. There is also no carveout in the hotel reservation regulations that the information need only be turned over if the person trying to make a reservation actually wants to make a reservation.
  16. The Supreme Court has said that a black tester has standing with respect to the Fair Housing Act because that tester had a right to truthful information but was denied. The same applies here because the plaintiff was denied information to which she has a legal entitlement. Another way to look at it is that the black tester lack of intent to rent an apartment did not negate the simple fact of injury. Therefore, plaintiff’s lack of intent to book a room at the hotel room would not negate her standing either.
  17. The Supreme Court has repeatedly said that denial of information to which plaintiffs have a legal right to can be a concrete injury in fact.
  18. Prior Supreme Court opinions have made clear that a denial of information that a plaintiff is statutorily entitled to can make for a concrete injury in fact. Those same decisions hold that the denial of information to a member of a protected class alone can suffice to make an injury impact and that the person’s intended use of the information isn’t relevant.

 

II

Effect of Prior Supreme Court Cases and Other Circuit Court Decisions

 

  1. It is up to the Supreme Court to say that a decision overrules prior decisions of the Supreme Court and not to the Circuit Courts of Appeals.
  2. Explicit holdings of the Supreme Court overrule any contrary dictum by the Supreme Court in later decisions. That is, arguments that the Supreme Court implicitly overruled one of its prior decisions are inherently suspect.
  3. It is unlikely that the Supreme Court would overrule a prior decision in dictum with only three sentences of explanation contained in a footnote.
  4. The black tester case, Havens Realty, is so similar to plaintiff’s case as to render any distinction between the two of them insufficiently material. So, the First Circuit is bound by that decision until the Supreme Court says otherwise.
  5. The ADA make the denial of information discrimination against persons with disabilities and gives that person the right to sue in response. That plaintiff had no intent to use the information for anything but a lawsuit doesn’t change anything because she was still injured in precisely the way the statute was designed to protect.
  6. The regulations at issue specifically make the denial of accessibility information actionable discrimination against persons with disabilities. That is, the regulation was not designed only to make sure that a person with a disability could book a room but to ensure that a person with a disability could independently assess whether a given hotel or guest room meets his or her accessibility needs. The reservation rule recognizes that the public information on accessibility features is necessary to make sure persons with disabilities are able to reserve hotel rooms with the same efficiency, immediacy, and convenience as those who do not need accessible guest rooms.
  7. Denying the plaintiff the same efficiency, immediacy, and convenience as those not requiring accommodations is exactly the discrimination the regulations are trying to stamp out.
  8. The decisions of other circuit courts are simply not persuasive for several reasons: 1) the decision do not explain why the ADA tester plaintiff didn’t suffer an injury but the black tester plaintiff in Havens Realty did even though her only interest in using the information was testing compliance and bringing her lawsuit, just as is the case with an ADA reservation rule tester; 2) regardless of whether the rule involves a misrepresentation or any representation, it is a distinction without a difference. In either case, the law conferred on the plaintiff a legal right to truthful information about an accommodation; 3) the Supreme Court recently reaffirmed that the violation of a procedural right granted by statute can be sufficient in some circumstances so that plaintiff’s need not allege any additional harm beyond the one Congress has identified; 4) downstream effects is not something that appears in the most relevant Supreme Court case law governing standing.
  9. Discrimination itself, by perpetuating archaic and stereotypic notions or by stigmatizing members of a disfavored group as innately inferior and therefore as less worthy participants in the political community, can cause serious noneconomic injury to those persons who are personally denied equal treatment solely because of their membership in a disfavored group.
  10. Trans Union, discussed here, cited discriminatory treatment as an example of concrete de facto injuries that were previously inadequate at law that Congress could elevate to the status of legally cognizable injuries.
  11. Plaintiff alleges that she suffered frustration and humiliation when the hotel reservation portals did not give her adequate information about whether she could take advantage of the accommodations. Without that information, plaintiff is not put on an equal footing to experience the world in the same way as those who do not have disabilities. Avoiding precisely that part is the point of the ADA which was designed to advance equal citizenship for persons with disabilities by aiming to guarantee a baseline of equal citizenship by protecting against stigma and systematic exclusion from public and private opportunities. When faced with exactly this situation, the 11th Circuit, discussed here, found standing
  12. Even assuming downstream consequences are a thing, plaintiff’s feelings of frustration, humiliation, and second-class citizenry are downstream consequences and adverse effects of the informational injury she experienced.
  13. Plaintiff’s injuries are particularized. In particular, she personally suffered the loss of dignity and feeling less than equal and endured humiliation, frustration, and embarrassment.
  14. The injury is also differentiated from others because plaintiff is a person with a disability who personally suffered the denial of information the law entitles her to have.

 

III

Plaintiff Has Standing to Seek Injunctive Relief

 

  1. Standing to seek injunctive relief turns on the question of whether the plaintiff has shown a sufficient likelihood that she will again be wronged in a similar way, sometimes referred to as imminence.
  2. Imminence requires that the injury not be conjectural, hypothetical, or simply possible. Describing this concept, the Supreme Court has said that a plaintiff’s proclaimed intent to return to the place that they have visited before is by itself simply not enough.
  3. Plaintiff’s intent to revisit the website are the farthest thing from those same day intentions found insufficient in Supreme Court decisions. She specifically alleges that she has concrete plans to go back to the websites in the near future. In fact, she has a sophisticated system to continue monitoring the noncompliant website she finds.
  4. Plaintiff is a self-proclaimed ADA tester who makes it her job to test website for ADA compliance.
  5. Plaintiff also asserts that while the hotels reservation system had made its website ADA compliant, it had not persuaded third-party reservation services to do the same. So, her likelihood of future injury is far from conjectural or hypothetical rather it is imminent.
  6. Defendant’s mootness argument does not fly because mootness is a demanding standard. For a case to be moot, it must be shown that it is impossible for a court to grant any effectual relief whatsoever to plaintiff assuming the plaintiff prevails. Further, the party asserting mootness bears the burden of showing that it exists. As mentioned above, the third-party reservation sites have yet to comply with the reservation rule.
  7. Plaintiff’s claims against the third-party websites are not insubstantial and frivolous.
  8. The reservation rule extends to reservations made by any means including through a third-party.
  9. The defendant has not represented that it made the information available now on its website to all of the 13 third-party booking websites that plaintiff alleges are noncompliant.

 

IV

Thoughts/Takeaways

 

  1. Judge Howard agreed that the complaint adequately alleges standing for declaratory relief, but was doubtful that it sufficiently alleges standing to pursue injunctive relief. That said, Judge Howard did not file a separate opinion.
  2. I previously wrote a blog entry discussing a Seventh Circuit dissenting opinion arguing that emotional distress damages were a part of the Fair Debt Collection Practices Act, here. I argued that that dissenting opinion was a strong argument for the Supreme Court to distinguish tester standing under the Fair Housing Act from standing under title III of the ADA. In particular: 1) the Fair Housing Act has specific references to perceivable emotional harm within its statute but title III explicitly does not; 2) per Cummings, which we discussed here, the Rehabilitation Act does not allow for emotional distress damages; 3) since damages are not an element of title III of the ADA, it is impossible to show that damages are allowed under title III. Therefore, remedies incorporating an element of emotional distress have not been around for a long time; 4) the judgment of Congress pronged is going to be a difficult bar for a plaintiff to get over because of the statutory provisions of title III of the ADA, which doesn’t even allow for damages; 5) there is nothing in the ADA’s findings section explicitly addressing intangible harms. That is, you do not see language like you do in the Fair Debt Collection Practices Act that foreseeably lead to the conclusion that emotional distress is in play; 6) Justice Thomas’s private v. public right distinction that he discussed in TransUnion won’t help a person with a disability because disability discrimination is a public right.
  3. Emotional distress damages are not a thing under title III of the ADA. All you can get is injunctive relief and attorney fees. That raises a real question to my mind as to the dignitary harms suffered by the plaintiff being sufficient for a plaintiff to get standing because emotional distress damages are not a thing under title III.
  4. The court finesses the intent to return by suggesting that the proper analysis is an intent to return to the website and not to the hotel because the reservation rule involves a website and not the physical place. It’s an interesting argument taken by the court as I have not seen intent to return parsed that way before.
  5. Not every Code of Federal Regulations results in a private cause of action being available. See, Schmidt v. Pennymac Loan Services, LLC, 106 F. Supp. 3d 859 (E.D. Mich. 2015).
  6. TransUnion specifically said that a statutory injury by itself is not sufficient.
  7. Since the Fair Housing Act implicitly recognizes that emotional harms are in play when housing discrimination occurs but the ADA does not have any similar language, certainly not in title III, the Supreme Court decision in Havens Realty can be distinguished.
  8. The Supreme Court frequently narrows cases without explicitly doing so, particularly when Chief Justice Roberts was a swing vote.
  9. On a personal level, it is very unclear to me whether the hotel reservation rule really makes a difference for people with certain kinds of disabilities. I can’t tell you how often I go into a hotel room where the hotel simply does not understand what it means to have a room that is accessible to a deaf individual. It is not unusual for me to get into a back-and-forth with the hotel to explain to them that the room is not accessible even though they are convinced that it is. In other words, if a website were to tell me that a room was accessible to a deaf individual I wouldn’t believe it unless they were to list out what exactly is in that hotel room.
  10. The burden of showing standing is on the complainant, while the burden of showing mootness is on the defendant. Mootness was never easy to show and standing no longer is.
  11. I fully expect my colleague Richard Hunt to eventually blog on this case, and I look forward to reading his take on the First Circuit decision.
  12. This case is undoubtedly headed to the Supreme Court. Figuring out what the Supreme Court is going to do in disability discrimination matters is a fools errand. That said, for the reasons I discuss in this blog entry I do not like the chances of the plaintiff when it gets to the Supreme Court.

 

Go Braves!

Before getting started on the blog entry of the week, I want to wish the members of the Jewish faith celebrating Yom Kippur this week a pleasant fast if you are fasting’s as well as a pleasant end to the 10 days of reflection.

 

Also, I wanted to report that my case against LawPracticeCLE settled with a consent decree. I note the following:

 

  1. Before we could even get to the consent decree, we had to survive a motion to dismiss. The order denying the motion to dismiss is here and has some great language in it. It also provides very useful context.
  2. My attorney, John Waldo, Esq., did get his fees as part of the settlement, which is contained in a confidential side agreement. He did a fabulous job.
  3. The consent decree specifically states that online CLE providers are subject to §309 of the ADA, 42 U.S.C. §12189.
  4. The consent decree requires captioning for all programming as well as dial-in access and captioning for any live programming.

On a lighter note, if you have a team in the baseball playoffs, I wish your team the best of luck unless you are playing my team of course, the Atlanta Braves. For the first time in history, the National League East very well could have two teams with 100 wins in the same season. Congratulations to the Dodgers for 110 wins in a season. Only two teams in history have ever won more.

 

Our case of the day is Bax v. Doctors Medical Center of Modesto, Inc., here, A published decision from the Ninth Circuit decided September 12, 2022. The question presented by the case is whether the primary consideration rule found in title II of the ADA’s effective communication regulations applies to either §504 claims or to claims under the Affordable Care Act (ACA). As usual, the blog entry is divided into categories and they are: facts; court’s reasoning that appropriate auxiliary aids and services were provided under §504; court’s reasoning that §504 does not contain title II of the ADA primary consideration rule; court’s reasoning that the ACA has a primary consideration rule but the rule was not applicable at the time of the occurrences; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

Mark and Lucia Bax, a married couple, have each been deaf since early childhood. Mr. Bax considers his first language to be American Sign Language (ASL)1 and his second language to be English. Mrs. Bax considers her first language to be Spanish, her second language to be ASL, and her third language to be English. DMC is an acute care hospital in Modesto, California. Mr. Bax was a patient at DMC in October and November 2015, and Mrs. Bax accompanied him during his stays. Mrs. Bax was a DMC patient in January 2017, accompanied by Mr. Bax. During the period of the Baxes’ stays, DMC contracted with an interpreting service to provide in-person ASL interpreters for patients. DMC also contracted with another company to provide ASL interpretation via video remote interpreting (VRI)—an interpreting service that uses real-time, full-motion video and audio over a high-speed internet connection to permit a live ASL interpreter to communicate with a doctor and patient through a portable screen from a remote location. Mr. Bax received in-patient medical care at DMC from October 13 to 27, 2015, and November 12 to 18, 2015, to treat his diabetes and a wound infection on his foot, which required three surgeries and ultimately amputation of his left pinky toe. Mr. Bax’s treatment at DMC also included a 1 “ASL is a visual, three-dimensional, non-linear language, and its grammar and syntax differ from the grammar and syntax of English and other spoken languages.” EEOC v. UPS Supply Chain Sols., 620 F.3d 1103, 1105 (9th Cir. 2010). His treatment also included a diabetes diagnosis, physical therapy, and various patient education sessions concerning diabetes. During his fifteen-day October 2015 hospital stay, Mr. Bax requested an in-person interpreter on eight days. DMC provided an in-person interpreter on six of those days. On a seventh day, DMC attempted to use VRI to communicate with Mr. Bax, but the equipment malfunctioned due to internet connectivity issues, precluding meaningful communication with the remote interpreter. On the remaining day, DMC denied Mr. Bax’s request for an interpreter to translate a Medicare notice. In addition to using interpreters, DMC staff often communicated with the Baxes during Mr. Bax’s stay by writing notes, including to convey his diabetes diagnosis, conduct patient education sessions, and discuss postoperative care. Mr. Bax returned to DMC for a surgical follow-up appointment on November 12, 2015. He was ultimately hospitalized for seven days of treatment, including a third foot surgery. During this hospitalization, Mr. Bax requested an in-person interpreter on three days, and DMC provided an interpreter on each of those days. On November 13, DMC provided in-person interpretation during the day and VRI at night. Connectivity issues with the VRI, however, interfered with Mr. Bax’s ability to use it to communicate with DMC staff. On the remaining days of Mr. Bax’s November hospitalization, DMC staff communicated with him in writing, including for emergency room evaluation, diagnosis, treatment counseling, and patient education. On January 12, 2017, Mrs. Bax sought treatment at DMC’s emergency room for pain in her kidney, neck, and back, and was admitted to the hospital for a few hours. During her stay, Mrs. Bax communicated with an emergency room physician assistant via VRI.

 

The Baxes, along with co-Plaintiff Mary Birmingham, filed this action against DMC, alleging disability discrimination under (1) Title III of the ADA; (2) Section 504; (3) Section 1557 of the ACA; (4) the Unruh Act; and (5) the California Disabled Persons Act (CDPA), Cal. Civ. Code § 54 et seq. Plaintiffs sought declaratory and injunctive relief concerning DMC’s policies for providing communication aids, including interpreter services, for deaf or hard-of-hearing individuals. They also sought monetary damages and attorneys’ fees. The district court granted partial summary judgment to DMC and dismissed the CDPA claim, the Unruh Act claim (to the extent based on intentional discrimination), and Mrs. Bax’s compensatory damages claim under Section 504 and the ACA. The district court denied summary judgment on Mr. Bax’s compensatory damages claims under Section 504 and the ACA and on each Plaintiff’s “companion claims.”2 Plaintiff Birmingham’s claims were resolved by her acceptance of an offer of judgment under which the district court issued an injunction against DMC concerning its practices for communicating with deaf patients. 2 “Deaf persons are protected by the ADA and [Section 504] not only as patients, but also as companions to patients who are seeking treatment.” Silva v. Baptist Health S. Fla., Inc., 856 F.3d 824, 830 n.3 (11th Cir. 2017) (citing 28 C.F.R. § 36.303(c)(1)); see also Ervine v. Desert View Reg’l Med. Ctr. Holdings, LLC, 753 F.3d 862, 868 (9th Cir. 2014) (same).

 

The Baxes and DMC proceeded to a bench trial on the four remaining claims—the ADA, Section 504, ACA, and (to the extent not based on intentional discrimination) Unruh Act claims. Over the course of three days, the district court heard testimony from nine witnesses and considered 132 exhibits. Of the Baxes, the district court stated that it found them to be “poor historians with contradicting and inconsistent accounts of what happened during their hospitalizations.” It also “question[ed] the[ir] credibility . . . as witnesses.” The district court ultimately issued findings of fact and conclusions of law in favor of DMC on all remaining claims and entered judgment for DMC. It concluded that DMC provided an in-person interpreter almost every time one had been requested and that DMC’s use of in-person interpreters and other communication methods, including VRI and note-writing, had afforded the Baxes effective communication under the relevant statutes. The Baxes timely appealed.

 

II

Court’s Reasoning That Appropriate Auxiliary Aids and Services Were Provided under §504 of the Rehabilitation Act

 

  1. When a person seeks compensatory damages under §504, intentional discrimination i.e. deliberate indifference must be shown.
  2. 504 regulations, 45 C.F.R. §84.4(b)(1),(2), says that to be equally effective, the aids, benefits, and services need not produce the identical result or level of achievement, but rather have to ensure that person with disabilities have an equal opportunity to obtain the same result, to gain the same benefit, and to reap the same level of achievement, in the most integrated setting appropriate to the person’s needs.
  3. Auxiliary aids, per 45 C.F.R. §84.52(d)(3), may include interpreters and other aids for persons with a hearing loss.
  4. Whether an entity provided appropriate auxiliary aids necessary to afford effective communication is a fact intensive exercise. Factors that must be weighed include: the method of communication used by the individual; the nature, length, and complexity of the communication involved; and the context in which the communication is taking place.
  5. The requirement that an entity provide effective communication does not mean that deaf patients are entitled to an on-site interpreter every time they ask for it. Instead, the test is whether an individual has received an auxiliary aid sufficient to prevent any real hindrance in her ability to exchange information.
  6. Claims under §504 are governed by the same substantive standard of liability as ADA claims. Therefore, ADA and §504 claims are often addressed together. Similarly, the court relies on ADA regulations to elaborate the substantive standard for effective communication under §504.
  7. Covered entities should consult with individuals with disabilities whenever possible in order to determine what type of auxiliary aid is needed to ensure effective communication.
  8. The ADA regulation, 28 C.F.R. §36.303(c)(1)(ii), applicable to places of public accommodations makes clear that the ultimate decision as to the ultimate auxiliary aid chosen lies with the place of public accommodation so long as the method chosen results in effective communication.
  9. Given the totality of the circumstances, the district court correctly concluded that the hospital effectively communicated with the plaintiffs through the course of their respective treatments using a variety of auxiliary aids, including in-person and remote interpreters and written notes.
  10. Isolated technical glitches do not necessarily establish ineffective communication. Also, credibility of witnesses matters.

 

III

Court’s Reasoning That §504 Does Not Contain Title II of the ADA Primary Consideration Rule

 

  1. DOJ regulation covering title II entities effective communication obligations, 28 C.F.R. §35.160(b)(2), states that such entities have to give primary consideration to the request of the individual with disabilities when determining what type of auxiliary aids to use. Giving primary consideration mean that a title II entity has to honor the person’s choice unless it can demonstrate that another equally effective means of communication is available, or that the use of the means chosen by the person requesting the modification will result in a fundamental alteration to the entity’s program or an undue burden.
  2. There are material differences between §504 and title II of the ADA.
  3. In promulgating regulations to implement the ADA title III, which covers places of public accommodations like Doctors Medical Center of Modesto, DOJ explicitly declined to apply the primary consideration rule to title III entities. DOJ guidance further stated that Congress did not intend under title III to impose upon a place of public accommodation the requirement that it give primary consideration to the request of an individual with a disability.
  4. Plaintiffs have not identified any language within §504 to support the contention that it contains a primary consideration requirement for all covered entities, regardless of whether they are an ADA title II public entity or an ADA title III place of public accommodations. Plaintiffs have not indicated that anything in §504 would support such a requirement.
  5. Under plaintiffs propose interpretation of §504, federally funded place of the public accommodations would be subject to a primary consideration requirement, a title II requirement, in direct contravention of Congress’s intention that such a rule not apply to those entities under the ADA.
  6. 504 was enacted well before title II primary consideration regulation was implemented. The primary consideration rule was promulgated in 1991 while §504 was enacted in 1973.

 

IV

The ACA Has a Primary Consideration Rule but That Rule Was Not Applicable at the Time of the Occurrences

 

  1. 1557 of the ACA, 42 U.S.C. §18116(a) provides that an individual shall not, on the ground prohibited under the Rehabilitation Act, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any health program or activity, any part of which is receiving federal financial assistance.
  2. On September 8, 2015, HHS proposed a rule applying title II’s effective communication standards, including the primary consideration rule, to title III entities such as the Doctors Medical Center of Modesto. In adopting the rule, HHS reasoned that it is appropriate to hold all recipients of federal financial assistance from HHS to the higher title II standard as a condition of their receipt of assistance and to hold HHS itself to the same standards to which the department subjects the recipients of its financial assistance.
  3. The HHS rule went into effect July 18, 2016, after Mr. Bax’s hospitalization.
  4. A proposed regulation is entitled to respect if it has the power to persuade. Factors relevant to persuasiveness include: the agency’s thoroughness; the validity of its reasoning; and its consistency with earlier and later pronouncements.
  5. While the rule certainly meets the persuasiveness test, primary consideration is an ADA title II rule and the plain text of §1557’s disability discrimination provision incorporates the Rehabilitation Act but not the ADA. Since, as mentioned above, the Rehabilitation Act does not contain a primary consideration requirement for title III entities, it doesn’t make sense to interpret the ACA as having imposed a primary consideration requirement before the HHS rule became effective. Cases from other circuits saying to the contrary are easily distinguishable.

 

V

Thoughts/Takeaways

 

  1. The ADA and §504 of the Rehabilitation Act are often said by the courts to be interpreted in the same way. However, differences between the two laws exist. In particular, causation, program accessibility, and the primary consideration rule are different.
  2. Another difference is compensatory damages. We know from Cummings, which we discussed here, that emotional distress damages are not available for §504 claims. It is an open question whether they are available for title II claims because the ADA and the Rehabilitation Act are different kinds of legislation (ADA is not spending clause legislation while the Rehabilitation Act is).
  3. As pointed out in the petition for rehearing for Cummings, it is a different situation when it comes to §501 claims. Looking at that statute, the statute clearly suggests that compensatory damages, including emotional distress claims, are available in §501 of the Rehabilitation Act claims. See 29 U.S.C. §791(f).
  4. The Deaf community absolutely despises VRI. However, the DOJ regulations and the DOJ are quite enamored of it. Thus, the applicability of the primary consideration rules matters a great deal.
  5. Whenever dealing with effective communication cases, it is really helpful if expert testimony regarding the English level abilities of a particular plaintiff is utilized.
  6. The Bax decision allows you to make the strong argument that whether appropriate auxiliary aids and services were provided is a question of fact not appropriate for summary judgment.
  7. §504 does not have a primary consideration rule while title II of the ADA does. Title III of the ADA explicitly does not contain a primary consideration rule.
  8. I have not yet read the cases distinguishing the applicability of the primary consideration rule to places of public accommodation. However, this opinion makes you wonder whether a circuit court split exists. I will have to undertake further analysis to see whether I believe that is the case.
  9. The decision quotes Silva I numerous times. We discussed Silva I here. Silva I is must reading for anyone dealing with an effective communication issue.
  10. The ACA, since July 18, 2016, does have a primary consideration rule.
  11. For a discussion of deliberate indifference, see this blog entry discussing the leading case on the question.
  12. I have been blogging quite a bit lately about cases involving Andrew Rozynski of Eisenberg & Baum LLP. He is doing absolutely fascinating work in the area of deaf rights.

Before getting started on the blog entry for the week, I want to wish all those celebrating, a happy Jewish new year.

 

The blog entry of the week comes from an unpublished decision from the 11th Circuit decided on September 19, 2022, Sugg v. City of Sunrise. It deals with the following questions: is it sufficient to establish a disability if it is just the plaintiff that testifies; is a failure to accommodate a separate cause of action; and does a failure to accommodate case require an adverse action. Keep in mind, that this court holds explicitly that a plaintiff by himself can establish the disability. As the case is decided, the only conclusion that can be reached is that a failure to accommodate cause of action in the 11th Circuit is a separate cause of action that does not require an adverse action beyond the failure to accommodate. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning that plaintiff properly exhausted administrative remedies with respect to his retaliation claim, but the claim fails because of the lack of causation; court’s reasoning that a plaintiff may establish an ADA disability with his own testimony; court erred by ignoring plaintiff’s own testimony about his request for reasonable accommodation; court’s reasoning that plaintiff’s claim that he was terminated because of the disability failed for lack of causation; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

In May 2014, Sugg was officially hired as the Chief Electrical Inspector for the City of Sunrise. He was employed on a probationary basis for a nine-month term. City of Sunrise probationary employees can be terminated at any time and for any reason during their probationary period, so long as the reason is not illegal or unlawful.

 

In October 2014, about five months into the probationary period, Sugg suffered a heart attack. He was hospitalized for four days and was on leave for two weeks following his discharge. Two days into his recovery, Sugg’s name was no longer listed on the website under the title of Chief Electrical Inspector. In its place was the name of Brian Epstein, a Broward County employee. The City of Sunrise claims the probationary period is vital to its employment process and its purpose was to “evaluate [Sugg’s] performance as the City’s Chief Electrical Inspector and to determine whether [he] was a good fit to maintain future employment with the City.” Sugg claims that the City of Sunrise had a “Prolonged Observation Period” through his employment with Broward County, and that his probationary employment status was just a formality.  According to the City of Sunrise, this change was required as the Board of Rules and Appeals (“BORA”) regulations require a Chief Electrical Inspector to be in place at all times, so the City of Sunrise needed to appoint someone sometime during his recovery, Sugg was decertified as a Chief Electrical Inspector. According to the City of Sunrise, this decertification was required because Christopher Augustin—who took over as Building Official during Sugg’s recovery—discovered that Sugg was missing a necessary BORA certification to serve as Chief Electrical Inspector. And Augustin also testified that Sugg’s certification had lapsed, and he encouraged Sugg to fill out the necessary paperwork to become recertified.

 

Upon his return to work, Sugg “noticed that management was treating him differently.” Sugg testified that Steve Busick, a City Plans Examiner and Inspector, told him he “better watch [his] back” and “they’re after you.” Sugg’s doctor provided a note that stated he could return to work on October 22, 2014, “on light duty.” Sugg says he gave a copy of the doctor’s note to the newly appointed Building Official, Chris Augustin, and to then-Director Lubelski’s assistant. Sugg followed up with an email to Lubelski stating he was back at work on “light duty” and that he gave the doctor’s note to Lubeski’s during Sugg’s absence. But Sugg contends that the BORA regulations also provide that the City Plans Examiner “shall” fill in during a Chief Electrical Inspector’s absence. The City Plans Examiner at the time was Ed Wanamaker. Sugg contends that other Chiefs had been absent longer than he, without being replaced or removed from the website. Lubelski replied later that day, welcoming Sugg back and stating, “If there is anything you need, please let me know.” The City of Sunrise had a policy of allowing employees to accept donated leave time from other employees. Although Lubelski asked Sugg if he would like employees to donate leave time, Lubelski told him one week later that he did not qualify to receive leave donations. Sugg claimed several other employees had received donated leave time, including an employee who had a heart condition. Sometime during the remaining four months of his probationary employment Sugg was involved in an altercation with a City Plans Examiner, Ed Wanamaker. Sugg had performed an employment evaluation of Wanamaker on behalf of the City and Wanamaker was displeased with his evaluation. The conversation got heated; both men claim that the other acted aggressively and they both feared the other would become violent.

 

Having been decertified since October 2014, Sugg completed the necessary paperwork to once again be listed as the City’s Chief Electrical Inspector in January 2015. BORA approves such recertifications, and Sugg’s recertification was on its consent agenda for February 12, 2015. At the meeting, Sugg was recertified as the City’s Chief Electrical Inspector without issue. That same day, Sugg emailed then-Department Director Shannon Ley and his direct supervisor, Augustin, wanting to know if February 13, 2015, which was the last day of his probationary period, would be his last day of employment, given that he had not received any further information from Human Resources about approving his permanent employment. Without a response to his email, he was discharged by the City on February 13, being told only that he was “not a good fit.” Ley was the department Director at that time and thus the final decisionmaker on Sugg’s termination, though she made the decision with input from former Director Lubelski and Augustin. The City claimed that Ley, Lubelski, and Augustin all agreed that Sugg “was not a good fit” based on Sugg’s alleged use of “vulgar and offensive language in the workplace,” “abrasive encounters with co-workers,” “receipt of customer complaints,” and Sugg’s “significant confrontation with Wanamaker where he aggressively got in Wanamaker’s face.” However, Sugg claims that two people later told Sugg he was terminated because of his heart attack: Broward County Building Official Jack Fisher and the previous Building Official, Dennis Pustizzi.

Sugg testified that he did not know that his heart condition could be a disability under the ADA until after he left the City’s employ. About a month before filing his EEOC charge, Sugg was listening to the radio and heard about an employee who was fired because of his heart condition; he “knew at that point that [he] was covered” by the ADA. Sugg filed a charge with the EEOC about seven months after his discharge, on September 15, 2015.

 

The EEOC charge form included a series of boxes listing different kinds of discrimination under the heading “DISCRIMINATION BASED ON (Check appropriate box(es).)” Sugg checked the “disability” box and left the “retaliation” box unchecked. In the area titled, “THE PARTICULARS ARE,” he wrote:

 

“I am a qualified individual with a disability. I was admitted to the hospital on 10/9/14. I was immediately removed from my position as Chief Electrical Inspector. When I returned to work, I requested but was denied a reasonable accommodation on 11/9/14 from Mark Lubelski, Assistant City Manager. My duties were taken from me, I was demoted and I was terminated on 2/13/15. I believe I was discriminated against because of my disability in violation of The Americans With Disabilities Act of 1990, as amended.”

 

On August 28, 2019, Sugg received a “Notice of Right to Sue” from the Civil Rights Division of the U.S. Department of Justice about his EEOC charge. He filed his initial complaint on November 19, 2019. His amended complaint claimed he exhausted administrative remedies with the EEOC and alleged two counts under the ADA: Count I for disability discrimination and Count II for retaliation for exercising his rights under the ADA. The City filed a Rule 12(b)(6) motion to dismiss on both counts. The district court denied the City of Sunrise’s motion to dismiss the disability discrimination claim (Count I) but granted its motion to dismiss the retaliation claim (Count II) for failure to exhaust his administrative remedies by failing to check the retaliation box on his EEOC charge. The district court did not reach the City’s alternative argument that Sugg failed to properly plead his retaliation claim. The City of Sunrise moved for summary judgment on Sugg’s disability discrimination claims. The district court granted the City’s motion for summary judgment after finding that (1) Sugg failed to produce sufficient evidence that he was disabled under the ADA; (2) Sugg’s “self-serving declaration and his own deposition testimony” were not sufficient to establish a genuine dispute as to whether he requested a reasonable accommodation, and moreover his purported requests were not “specific and identifiable”; and (3) there was no evidence of discriminatory intent for Sugg’s termination. Sugg timely appealed both the dismissal of his retaliation claim and the grant of summary judgment for the City of Sunrise on his discrimination claims.

 

II

Court’s Reasoning That Plaintiff Properly Exhausted Administrative Remedies with Respect to His Retaliation Claim, But the Claim Fails Because of Lack of Causation.

 

  1. Courts are extremely reluctant to allow procedural technicalities to bar claims brought under discrimination statutes. Accordingly, courts have held that the scope of an EEOC complaint should not be strictly interpreted.
  2. A party whose EEOC charge is only based on discrimination can also claim retaliation in a complaint filed in court if the facts alleged in the EEOC charge could have reasonably been extended to encompass a claim for retaliation because they were completely intertwined with the complaint of discrimination.
  3. Defendant agrees that plaintiff’s ADA retaliation claim could have reasonably grown out of his charge for discrimination.
  4. The 11th Circuit has held that a lapse of three months between the protected activity and the retaliation is too long to satisfy the causation element of a retaliation claim absent other evidence. In this case, plaintiff fails to allege any facts supporting the claim that other evidence existed aside from the three-month proximity to his termination.

 

III

Court’s Reasoning That a Plaintiff May Establish Disability with His Own Testimony

 

  1. The ADA directs that disability be construed in favor of broad coverage.
  2. Per 29 C.F.R. §1630.2 (j)(1)(ii), an impairment rises to the level of a disability if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population.
  3. Substantial limitation must be construed broadly in favor of expansive coverage.
  4. Per 29 C.F.R. §1630.2(j)(1)(i)-(iii) and 42 U.S.C. §12102(4)(B), determining whether an impairment is substantially limiting does not demand extensive analysis.
  5. Major life activities include all kinds of activities and also includes the operation of a major bodily function, including but not limited to circulatory (also called cardiovascular) functions. 42 U.S.C. §§12102(2)(A), (B); 29 C.F.R. §§1630.2(i)(1)(i), (ii).
  6. 11th Circuit precedent requires that a plaintiff’s evidence of disability include the timing, frequency, and duration of his impairments in order to survive summary judgment.
  7. In the absence of any citation to a case from the 11th Circuit, the court declined to find that a diagnosis based solely on self-described complaints or subjective pain cannot qualify as a disabling impairment under the ADA.
  8. As the regulations accompanying the ADA do not require medical evidence to establish a disability, plaintiff’s own testimony is sufficient where it would allow a jury to reasonably determine that the plaintiff was a person with a disability under the ADA.
  9. Plaintiff presented declaration from two doctors to establish that he was a person with a disability. In particular, he submitted declarations from his cardiologist and his primary care physician.
  10. Even though the declarations from his doctors were rather conclusory, plaintiff’s own testimony was not conclusory at all. He testified that he was diagnosed with heart disease at the emergency room following his heart attack. Heart disease satisfies the low threshold of impairment under the ADA.
  11. Plaintiff also testified how his heart disease and corresponding heart attack limited his daily activities. In particular he talked about how his ability to lift things was so limited that he could not lift anything and that he could not move things like pieces of drywall. He also testified that he could only go like 15 minutes spurts before having to stop to catch his breath. Therefore, plaintiff specifically alleged enough non-conclusory information so that a jury could reasonably find that his heart disease is substantially limited in the major life activities of at least lifting and walking.

 

IV

Court Erred By Ignoring Plaintiff’s Own Testimony about His Request for Reasonable Accommodation

 

  1. The ADA explicitly provides a cause of action to disabled otherwise qualified individuals denied reasonable accommodations.
  2. The term “discriminate against a qualified individual on the basis of disability,” includes not making a reasonable accommodation to the known physical or mental limitations of an otherwise qualified individual with a disability who is an employee in the absence of an undue hardship on the operation of the business.
  3. Triggering an employer’s duty to provide a reasonable accommodation does mean that the plaintiff must make a specific demand for such an accommodation.
  4. The plaintiff has the burden of showing that the accommodation allows him to perform the job’s essential functions-i.e. that the accommodation is reasonable.
  5. While the 11th Circuit has not determined precisely what form a demand for an accommodation must take, whatever the precise standard may be it is not a demanding one.
  6. A plaintiff must at least provide enough information so that the employer can be fairly said to know of both the disability and the desire for an accommodation.
  7. The record shows that around November 10, 2014, plaintiff requested to work from home but the City denied that request without any consideration or dialogue. His deposition testimony was quite clear that he requested to work from home, though he would have preferred to stay in the office on light duty. His deposition testimony was also clear that he supported those requests by referring to his disability. Accordingly, plaintiff made more than one specific demand for accommodation and notified the City of Sunrise multiple ways to accommodate his limitations. He also established the reasonableness of the accommodation by showing that the applicable regulations explicitly provided that the chief electrical inspector did not have to be personally present at the governmental department as long as that person was available by telephone, computer, etc. and could perform their duties.

 

V

Court’s Reasoning That Plaintiff’s Claim That He Was Terminated Because of His Disability Failed for a Lack of Causation

 

  1. Plaintiff does not allege that there was any change in his compensation and his attorney conceded at oral argument that his duties never changed either. It was a demotion in name and not in practice.
  2. Plaintiff does not claim that his request for leave was ever denied.
  3. Plaintiff’s claim that two other individuals told him that he was fired because of his disability does not hold up on further analysis because one does not work for the defendant and the other died before his deposition.

 

VI

Thoughts/Takeaways

 

  1. I usually don’t focus on the conclusion of an opinion because it just states in legalese the result of a court’s reasoning. However, the conclusion of the court in this case is very important. More specifically, the court said:

 

For all these reasons, we affirm the district court’s dismissal of Sugg’s retaliation claim, not for failure to exhaust administrative remedies, but for failing to state a plausible claim for relief. We reverse the district court’s grant of summary judgment on his reasonable accommodation theory of discrimination because genuine issues of fact exist as to (1) whether Sugg was disabled and (2) whether he requested a reasonable accommodation. And we affirm summary judgment on all other theories of discrimination because Sugg could not show discriminatory intent. REVERSED IN PART AND AFFIRMED IN PART.

 

A plain reading of this conclusion can only mean that a failure to accommodate cause of action is a separate cause of action and does not require an adverse action to support it because the failure to accommodate claim survived while the discrimination based upon disability failed due to lack of an adverse action.

 

  1. In this particular case, the plaintiff was able to essentially supplement the declarations of his doctors with his own testimony so as to establish a disability. As a matter of best practices on the plaintiff side, it is a really good idea for declarations of healthcare providers to be as specific as possible with respect to any physical or mental impairment and how that physical or mental impairment limits the plaintiff’s major life activities.
  2. A plaintiff is able to establish a disability under the ADA directly with his/her/they testimony.
  3. There is a case pending before the 11th Circuit that was just argued asking the question whether a failure to accommodate claim requires an additional adverse action or whether the failure to accommodate claim is an adverse action by itself/does not require an adverse action. It will be interesting to see what that panel of the 11th Circuit decides in light of Sugg. The disposition of Sugg in my opinion, can only be read to say that a failure to accommodate claim is a separate cause of action and that no additional adverse action besides the failure to accommodate is necessary for the claim to go forward. If the panel hearing the case that was just argued decides otherwise, it will be interesting to see where it goes from there because you then arguably have two different panels of the same circuit reaching opposite conclusions. In that situation, most circuits will automatically grant a rehearing en banc.
  4. Sugg is an unpublished decision and will be interesting to see whether it gets mentioned by the panel hearing the case just argued about whether a failure to accommodate claim requires a separate adverse action. It will also be interesting to see whether that pending decision is designated for publication or not.
  5. The ADA applies to probationary employees.
  6. EEOC charges are not strictly construed against the charging party.
  7. Magic words are not required to trigger the interactive process. It does not take a high bar to trigger the interactive process.
  8. The Circuit Courts are split on whether a failure to accommodate is a separate cause of action. Courts also go both ways on whether failure to accommodate claims require an adverse action beyond the failure to accommodate.
  9. On a personal note, I can say that as a person with a disability who makes reasonable modification/accommodation requests for my own disabilities all the time, that the failure to accommodate always has an adverse effect on me. For example, my stress levels go way up if I have to stay in a hotel room by myself that is not meaningfully accessible to a deaf person (happens to me all the time when I travel. In fact, I am amazed when it doesn’t happen to me when I travel). It is not only a matter of stress but it creates a dangerous situation during the overnight hours. If a failure to accommodate requires an independent adverse action, do I even have standing because title III does not allow for damages. Similar thought process for an entity that takes federal funds as a result of Cummings, which we discussed here. It may or may not be a similar thought process (§504 is spending clause legislation but title II is not), for a title II entity as well.

Today’s blog entry is a case sent to me by Prof. Leonard Sandler, a clinical law professor at the University of Iowa. The case of the day is Wilds v. Akhi LLC decided on July 29, 2022 by Magistrate Judge Jones of the Northern District of Florida. It deals with the question of what happens when a person with a service animal shows up at the federal courthouse with his service animal not on a leash. Plaintiff alleged that the animal was under his control and could not be on a leash in order to best compensate for his disability as he has blackouts. The security agency refused to let him in the federal courthouse. So, he sues alleging violation of the ADA and state law claims. As usual, the blog entry is divided into categories and they are: Federal Buildings Are Exempt from the ADA and a Federal Courthouse Is Not a Place of Public Accommodation; While Plaintiff Has a Constitutional Right of Access to the Courts, He Cannot Enforce That Right against the Defendants under §1983 or under Bivens; While No Private Cause of Action Exists under Florida Statute §1413.08(3), Plaintiff Does Have the Ability to Sue for Damages for Violations of the Florida Civil Rights Act; and Thoughts/Takeaways. Of course, the reader is free to focus on any or all of the categories.

 

 

I

Federal Buildings Are Exempt from the ADA and a Federal Courthouse Is Not a Place of Public Accommodation

 

  1. Only one Federal District Ct. has addressed the question of whether a federal courthouse constitutes a place of public accommodation under title III of the ADA. That court held that a federal courthouse was not a public accommodation.
  2. The lack of case law on whether a federal courthouse constitutes a public accommodation under title III of the ADA is likely because federal governmental buildings are generally exempt from the ADA.
  3. Federal buildings are governed by the Architectural Barriers Act of 1968.
  4. The Architectural Barriers Act does not provide a private right of action and courts have refused to imply one.
  5. An aggrieved person under the Architectural Barriers Act may file a complaint with the U.S. Access Board regarding any alleged Architectural Barriers Act violation.
  6. Courts allowing a private cause of action under the Architectural Barriers Act, have insisted that a litigant must first exhaust his administrative remedies with the Architectural Barriers Board before filing suit in federal court. Accordingly, a remedy the plaintiff has is to file a complaint with the Access Board.

 

II

While Plaintiff Has a Constitutional Right of Access to the Courts, He Cannot Enforce That Right against the Defendants under §1983 or under Bivens

 

  1. The defendants, the security companies providing security services to this particular federal court, are not state actors.
  2. The United States Supreme Court has refused to extend Bivens to private entities.
  3. Defendants are federal contractors and §1983 does not provide a cause of action against a federal official or contractor.
  4. By its own terms, §1983 only applies to state actors acting under color of state law and not to federal actors acting under color of federal law.
  5. A Bivens claim is available when a federal actor violates a plaintiff’s federal rights while acting under color of federal law. However, the United States Supreme Court has refused to extend Bivens liability to private entities that contract with the federal government.
  6. Since the purpose of Bivens is to deter individual federal officers from committing constitutional violations, inferring a constitutional tort remedy against a private entity is not possible.
  7. The defendants are private security companies providing security services for U.S. District Court for the Northern District of Florida in the Gainesville division under a federal contract.
  8. The Supreme Court has said that merely private conduct, no matter how discriminatory or wrongful, does not constitute state or federal action and is excluded from §1983 or Bivens.

 

III

While No Private Cause of Action Exists under Florida Statute §413.08(3), Plaintiff Does Have the Ability to Sue for Damages for Violations of the Florida Civil Rights Act

 

  1. Florida courts have refused to recognize a private right of action under §413.08 of the Florida statutes.
  2. Plaintiff may seek relief under Florida statute §760.01.
  3. The Florida Civil Rights Act provides a mechanism to obtain private relief and damages under §413.08 because §760.07 states that any violation of any Florida statute making discrimination unlawful gives rise to a cause of action for damages.
  4. Since plaintiff is proceeding pro se, the court construes a state law claims for violations of §413.08(3) to arise under the Florida Civil Rights Act.
  5. Whether plaintiff can bring a Florida Civil Rights Act claim against defendants denying him access to a federal building is a question that should be decided by Florida courts and not the federal court because plaintiff has no federal claim.
  6. A court should decline to exercise supplemental jurisdiction over state law claim when the court is dismissing all federal causes of action.
  7. In a footnote, the court noted that even if a federal courthouse was somehow considered to be a place of public accommodation under title III, the particular defendants sued in this case do not own, lease, or operate it. Instead, federal courthouses are owned and operated by the Gen. Services Administration of the United States government. Also, very few courts have considered whether security officers can be characterized as owners, lessors, or operators under title III of the ADA and those that did decided in the negative.
  8. In another footnote, the court noted that the Supreme Court recognize a constitutional right of access to the courts arising under the 14th amendment in the case of Tennessee v. Lane. Florida courts have recognized a number of affirmative obligation flowing from that principle, including: the duty to waive filing fees and in certain family law and criminal cases; the duty to provide transcript to criminal defendants seeking review of their conviction; and the duty to provide counsel to certain criminal defendants. Each of those cases make clear that ordinary considerations of cost and convenience alone cannot justify a State’s failure to provide individuals with meaningful right of access to the courts.
  9. In another footnote, the court notes that the Florida Civil Rights Act has exhaustion requirements.

IV

Thoughts/Takeaways

 

  1. I cannot see how federal courthouses can be a place of public accommodation.
  2. Courts are split on whether the Architectural Barriers Act allows for a private cause of action. At a minimum, a person would need to exhaust administrative remedies first before filing such a suit, assuming such a suit flies in the first place.
  3. Bivens and §1983 are of no help to a plaintiff faced with a similar situation.
  4. State law is something plaintiffs lawyers should look to when dealing with disability discrimination matters. They sometimes go further than federal law or are applied more broadly.
  5. About a month after this decision, the U.S. District Court accepted the magistrate’s report without objections from the parties.
  6. The General Services Administration is an executive agency. So, one wonders why a plaintiff when faced with this situation would not pursue a claim under §504 of the Rehabilitation Act. See for example, Bartell v. Grifols Shared Servs. NA, 1:21CV953 (M.D.N.C. Aug. 15, 2022)-holding that the Rehabilitation Act and the ADA get interpreted the same way when it comes to service animals.
  7. The court did direct the clerk to conduct a reasonable investigation, whatever that means, to see whether plaintiff’s request that he be permitted to enter the courthouse building with his service dog unleashed could be accommodated.

Before we get to the blog entry of the week, a housekeeping matter. I will be out of the office from Friday evening and returning late Tuesday. So, a blog entry for the week after this will come up later in that week rather than earlier to middle of the week as is usually the case.

 

Our case of the day is Luke v. State of Texas, here, a published decision from August 19, 2022. The case asked the question about whether denying a culturally deaf individual, Deaf, an interpreter during his criminal proceedings violates the ADA. The Fifth Circuit holds that it does. As usual the blog entry is divided into categories and they are: facts; court’s reasoning on sovereign immunity and that Luke did adequately state a claim for violating title II of the ADA; and thoughts/takeaways. Of course, the reader is free to concentrate on any or all of the categories.

 

I

Facts

 

Like many Deaf individuals, Luke has trouble speaking and reading English. He also has difficulty lip reading. In order to effectively communicate, Luke requires an American Sign Language (ASL) interpreter.

 

Such an interpreter was never provided during Luke’s case for marijuana possession. No interpreter was provided the night of his arrest during a traffic stop, even though his mother, who was watching the scene via FaceTime, urged the officers to provide him with one. No interpreter was present when Luke was booked and detained at Lee County Jail. Nor was one present when a Lee County justice of the peace arraigned him and released him on bond. No interpreter ever explained to Luke his legal rights, the charges against him, or the terms and conditions of his bail.

 

The county court said that an interpreter would be provided for the hearing at which Luke was going to plead guilty in exchange for one year of probation. But the court did not follow through on that commitment. Instead, it insisted that Luke’s mother, who has only basic knowledge of sign language, interpret for her son during the hearing. Thus, no qualified interpreter ever explained to Luke the terms of his probation.

 

Luke’s experience on probation, which began with Lee County’s Community Supervision Corrections Department but was later transferred to San Jacinto County’s, was more of the same. Neither department provided Luke with an interpreter for his meetings with probation officers. Just like at the hearing, the probation officers instead had Luke’s mother interpret for him. No qualified interpreter ever explained to Luke what happened during those meetings or whether he was satisfying the terms of his probation.

 

Contending that the lack of interpreters left him “isolated and confused” during the criminal proceedings, Luke sued the following entities under Title II of the Americans with Disabilities Act: (1) Lee County, which operated the jail and court; (2) the Community Supervision and Corrections Departments of both Lee County and San Jacinto County (the “Supervision Departments”), the Texas state agencies that oversaw his probation; and (3) the State of Texas. Luke sought injunctive relief against the Supervision Departments and the State of Texas and compensatory and nominal damages from all defendants.

 

The District Court wound up concluding that the supervision department enjoyed sovereign immunity. It also granted Lee County’s motion for judgment on the pleadings for the same reason. It granted the state of Texas motion to dismiss for improper service of process because Luke serve the wrong Texas official. Luke appealed.

 

II

 

Court’s Reasoning on Sovereign Immunity and That Luke Did Adequately State a Claim for Violating Title II of the ADA

 

 

  1. Lee County is a political subdivision of Texas and not an arm of the State. Therefore, it does not enjoy state sovereign immunity.
  2. To make out a claim under title II of the ADA, Luke had to show: 1) that he is a qualified individual with a disability; 2) that he was excluded from participation in, or denied the benefits of, services, program, or activities for which the public entity is responsible, or was otherwise being discriminated against; and 3) that such discrimination is because of his disability.
  3. Luke’s deafness makes him a qualified individual with a disability.
  4. Luke can show that he was discriminated against because of his disability as both Lee County and the Supervision Departments knew he was Deaf yet failed to provide an accommodation despite multiple requests for an interpreter.
  5. Title II regulations, 28 C.F.R. §35.160(b)(1), lists auxiliary aids, which include qualified interpreters, as reasonable accommodations that public entities have to provide when necessary.
  6. Luke also alleged that he was denied the benefit of meaningful access to public services. In particular he alleged that he was not able to understand his legal rights or effectively communicate throughout his proceedings. Not being able to understand a court hearing or a meeting with the probation officer is by definition a lack of meaningful access to those public services.
  7. Citing to Tennessee v. Lane, the court said that a core purpose of title II is for public entities to accommodate persons with disabilities in the administration of justice.
  8. A theory that Luke was not denied a public service because he successfully completed his probation anyway is entirely inconsistent with the ADA. Nothing in the ADA’s text or the case law applying it requires Luke to have alleged a bad outcome. There is a good reason for that because lack of meaningful access itself is the harm under title II regardless of whether any additional injury follows. Luke’s title II injury is not being able to understand the judges and probation officers as a defendant who is not Deaf would.
  9. Under the District Court’s reasoning, the state could refuse to provide an ASL interpreter for a culturally deaf individual’s trial and then avoid title II liability if the defendant is acquitted. It simply doesn’t work that way and courts have rightly rejected that position.
  10. While it is true that the positive outcome of Luke’s criminal case may affect his damages, that does not allow courts to escape their ADA obligations.
  11. The argument that Luke’s mother served as an interpreter means there was no ADA violation doesn’t wash either for several reasons: 1) his mother knows only basic sign language. So, his mother’s involvement would not have fully informed him of the proceedings or otherwise provide the meaningful access the ADA requires; and 2) if one considers 28 C.F.R. §35.160(c)(2) public entities cannot force a person with a disability’s family member to provide the interpretation services for which the entity is responsible.
  12. Since Luke sufficiently stated a title II claim, his claim against Lee County gets past the pleading stage.
  13. With respect to the Supervision Departments, Luke clearly satisfied the first step of the sovereign immunity abrogation elements in that he clearly stated violations of title II. However, it remains for the District Court on remand after full briefing and consideration to determine whether the misconduct also violated the 14th amendment and if not, whether Congress’s abrogation of sovereign immunity to that particular conduct was nevertheless valid.
  14. With respect to the State of Texas, Luke did indeed serve the wrong officer. Therefore, Texas is dismissed from the case.
  15. The District Court erred when it said that Luke failed to specifically allege facts supporting compensatory damages. Luke alleged that not being able to understand the proceedings against him caused him fear, anxiety, indignity, and humiliation.
  16. In a footnote, the court noted that it is a separate issue whether compensatory damages are available to title II plaintiffs at all because of Cummings v. Premier Rehab Keller, which we discussed here. It is up to the District Court on remand to decide what effect if any Cummings has on Luke’s ability to recover emotional distress damages under title II. Regardless, Luke also seeks nominal damages.
  17. In another footnote, the court noted that meaningful access is a standard that comes from the Supreme Court in a Rehabilitation Act case. However, the ADA and Rehabilitation Act are interpreted the same way. So, that standard applies equally to the ADA.

 

III

Thoughts/Takeaways

 

  1. For sovereign immunity to apply, an entity must be an arm of the State. Political subdivisions do not get the benefit of sovereign immunity.
  2. Communication with a culturally deaf individual must be effective communication as we discussed in this blog entry.
  3. Tennessee v. Lane did hold that when it comes to accessing the courts people with disabilities are at least in the intermediate scrutiny category if not higher with respect to equal protection jurisprudence.
  4. The lack of meaningful access itself is the harm under title II and an injury is not required. So, by way of analogy you might also be able to argue that a failure to accommodate in a title I case does not require an adverse action.
  5. Escaping damages under the ADA is not the same as escaping liability.
  6. When we discussed Cummings v. Premier Rehab Keller, a question I raised was whether damages under title II are ever in play because title II’s remedies are hooked into the Rehabilitation Act remedies. This case specifically mentions that Cummings may preclude damages for violations of title II of the ADA. The court did note that nominal damages would still be in play even so. It will be interesting to see how this plays out.
  7. Both title II and title III of the ADA work off a meaningful access standard.
  8. Remember, as we discussed here, that ADA causation is undoubtedly not sole cause.
  9. As we discussed here, the ADA is a nondelegable duty.

We just moved our daughter into college this week and are back home now. Now, the roller coaster begins. So far so good. One thing I did realize is that I now have about an extra 15 hours per week I calculated. My brother says that I should get a new hobby, but I already love legal writing. I do look forward to having the ability to do more trainings and to take on more matters.

 

When a case comes down, it usually doesn’t have much of a shelf life before people move on to other things. William v. Kincaid, here, is not such a case. I am still seeing people blogging on it, and I am still getting Google alerts on this case even though it came down August 16, 2022. By now, you may already know what this case is. The case is the Fourth Circuit published decision saying that gender dysphoria is protected under the ADA. There was also a statute of limitation question and the question of whether gross negligence had been sufficiently alleged. We are not going to focus on those two questions. Finally, there was a concurrence/dissenting opinion as well. As with the majority opinion, we will just focus on the ADA part of the concurrence/dissent. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning that gender dysphoria is not covered by the gender identity disorder exclusion in the ADA; court’s reasoning that gender dysphoria in this case may very well be based upon a physical impairment; Judge Quattlebaum’s concurrence/dissent; and if I were on the panel and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

Kesha Williams, a transgender woman with gender dysphoria who had not undergone trans feminine bottom surgery, spent six months incarcerated in the Fairfax County Adult Detention Center. Though prison deputies initially assigned her to women’s housing, they quickly moved her to men’s housing when they learned she was transgender. There, she experienced delays in medical treatment for her gender dysphoria, harassment by other inmates, and persistent and intentional misgendering and harassment by prison deputies. Following her release from the detention center, Williams filed a § 1983 action against the Sheriff of Fairfax County, a prison deputy, and a prison nurse alleging violations of the Americans with Disabilities Act (“ADA”), the Rehabilitation Act, the United States Constitution, and state common law. The district court dismissed the case, holding that the complaint failed to state grounds for relief with respect to some claims and that the statute of limitations barred others.

 

For those interested in the specific facts, the opinion goes into greater detail. Considering you are talking about a transgender inmate who had not undergone bottom surgery even though she had been on hormone for years, I can’t say any of things that happened to her were particularly surprising.

 

II

 

Court’s Reasoning That Gender Dysphoria Is Not Covered by the Gender Identity Disorder Exclusion in the ADA

 

  1. The ADA, 42 U.S.C. §12211(b), excludes from the ADA coverage transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorder not resulting from physical impairments, and other sexual disorders as well as compulsive gambling, kleptomania, pyromania, or psycho active substance use disorders resulting from current illegal use of drugs.
  2. In 2008, Congress amended the ADA and stated that the ADA needs to be construed in favor of broad coverage of individuals to the maximum extent permitted. They also said that courts need to construe the ADA as amended as broadly as possible, which also means that courts must construe the exclusions narrowly.
  3. The text of the ADA does not define the term gender identity disorders and does not mention gender dysphoria at all.
  4. Looking at the meaning of the ADA’s terms at the time of its enactment, leads to the conclusion that gender identity disorders did not include gender dysphoria.
  5. In 1990, the medical community did not acknowledge gender dysphoria either as an independent diagnosis or as a subset of any other condition.
  6. In 2013, the American Psychiatric Association decided to remove gender identity disorders from the DSM manual. At the same time it added a diagnosis of gender dysphoria, which did not exist as a diagnosis in 1990.
  7. The very fact of revision mean that a meaningful difference exists between gender identity disorder and gender dysphoria and that difference is more than just semantic. In fact, the definition of gender dysphoria differs dramatically from the now rejected diagnosis of gender identity disorder. Rather than focusing on gender identity, gender dysphoria focuses on clinically significant distress felt by some of those experiencing an incongruence between the gender identity and their assigned sex. In a footnote, the court notes that WPATH (World Professional Association for Transgender Health), standard also focuses on the discomfort or distress caused by a discrepancy between a person’s gender identity and the persons assigned sex at birth.
  8. Being trans alone does not sustain a diagnosis of gender dysphoria under the DSM 5 as a code for a diagnosis of gender identity disorder under the earlier versions of the DSM.
  9. The Fourth Circuit and other courts have explained that a diagnosis of gender dysphoria unlike that of gender identity disorder concerns deals primarily with distress and other disabling symptoms rather than simply being transgender.
  10. Not only are gender identity disorder and gender dysphoria characterized by different symptoms, they affect different populations. That is, gender dysphoria is a disability suffered by many but certainly not all transgender people, since many transgender individuals are completely comfortable living with an incongruence between the gender identity and their assigned sex.
  11. Gender nonconformity is not in itself a mental disorder.
  12. The ADA excludes from its protection anything falling within the plain meaning of gender identity disorders as the term was understood at the time of its enactment. However, nothing in the ADA, then or now, compels the conclusion that gender dysphoria constitutes a gender identity disorder excluded from ADA protection.
  13. Given Congress expressed instruction that courts construe the ADA in favor of maximum protection for those with disabilities, it is not proper to adopt an unnecessarily restrictive reading of the ADA. To do otherwise would mean that the court would pencil in a new condition into the list of exclusions in the ADA. It would also erase Congress’ command to construe the ADA as broadly at the text permits.
  14. A growing number of district courts have reached the conclusion that gender dysphoria and gender identity disorder are not at all the same thing.

 

III

Court’s Reasoning That Gender Dysphoria in This Case May Very Well Be Based upon a Physical Impairment

 

  1. The ADA does not define the phrase, “physical impairments.”
  2. EEOC has promulgated regulations, 28 C.F.R. §35.108(b)(1)(i), defining the term expansively as any physiological disorder or condition affecting one or more body systems, such as neurological and endocrine. The court must defer to the EEOC’s reasonable interpretations of ambiguous terms in the ADA.
  3. Plaintiff has alleged sufficient facts to render plausible the inference that her gender dysphoria results from physical impairments. In particular, she alleged that medical treatment for her gender dysphoria consisted primarily of hormone therapy that she used to effectively manage and alleviate the gender dysphoria she experienced. She also alleged that she had received that medical treatment for 15 years.
  4. In her complaint, she stated that gender dysphoria for her required hormone treatment. In fact, she said as much in her complaint upwards of 10 times. In her complaint, she explained that hormone treatment enabled both feminization or nationalization of the body and said that without it (the prison failed to provide that treatment), she experienced emotional, psychological, and physical distress. These allegations sufficed to raise the reasonable inference that plaintiff’s gender dysphoria resulting from the physical impairment.
  5. Medical and scientific research identifies a possible physical basis of gender dysphoria, and the DOJ has agreed that this emerging research renders the inference that gender dysphoria has a physical basis sufficiently plausible to survive a motion to dismiss.
  6. Courts typically lacks sufficient expertise in physiology, etiology, psychiatry, and other potentially relevant disciplines to determine the cause or causes of gender dysphoria. So, dismissing a case based on such unknowns is wholly premature and speculative.
  7. Statutes should be interpreted to avoid a serious constitutional question.
  8. The court has little trouble concluding that a law excluding from ADA protection both gender identity disorders and gender dysphoria discriminates against transgender people as a class in violation of the equal protection clause of the 14th
  9. The Fourth Circuit has held that intermediate scrutiny applies to laws discriminating against transgender individuals. Accordingly, such laws fail unless they are substantially related to a sufficiently important governmental interest. Further, to survive intermediate scrutiny the state must provide an exceedingly persuasive justification for the law.
  10. One does not need to look too closely to find evidence of discriminatory intent toward transgender people in the enactment of §12211(b). The evidence of such intent include: 1) the provision listing gender identity disorders appears alongside pedophilia, exhibitionism, and voyeurism. Such a grouping implicitly brands all transgender individuals as equivalent to criminals thereby making it more difficult for them to be treated in the same manner as everyone else; and 2) the legislative history of the ADA reflects the moral judgment implicit in that list. In fact, Senator Helms specifically mentioned on the floor that people in wheelchairs were one thing but how in the world can you not exclude transvestites? Senator Armstrong said something similar as well.
  11. By carving a safe harbor for discrimination out of broad antidiscrimination protections, the ADA exclusion bears a striking resemblance to the Colorado law at issue in Romer v. Evans, which repealed municipal antidiscrimination ordinances to the extent they prohibited discrimination on the basis of LGB conduct practices or relationships.
  12. In Romer, the Supreme Court held that laws of that kind raise the inevitable inference that the disadvantage imposed born of animosity toward the class of persons affected.
  13. The Fourth Circuit has previously recognized that the ADA’s exclusion of gender identity disorders itself is evidence of such discriminatory intent.
  14. In light of the basic promise of equality animating the ADA, there is no legitimate reason why Congress would intend to include from the ADA’s protections transgender individuals suffering from gender dysphoria.
  15. The only reason for the exclusion that can be gathered from the text and the legislative record is a bare desire to harm a politically unpopular group, which simply cannot constitute a legitimate governmental interest.
  16. There are two ways to avoid the serious constitutional question. First, the argument that gender dysphoria does not constitute a gender identity disorder for purposes of the ADA exclusion. Second, the argument that gender dysphoria results from a physical impairment. Plaintiff has properly alleged both of those claims.

 

IV

Judge Quattlebaum Concurrence/Dissent

 

Judge Quattlebaum concurs in the majority’s decision concerning the district court’s dismissal on statute of limitations grounds. He also concurs in remanding the Eighth Amendment deliberate indifference claim against Wang, the Fourteenth Amendment Equal Protection claim against Garcia and the gross negligence claim against Wang. He also agrees with the majority that the district court erred in concluding that Garcia followed the prison’s policies and, therefore, could not have committed gross negligence as a matter of law and joins with the majority in remanding that claim as well. And because the district court granted Sheriff Kincaid’s motion for summary judgment as to the gross negligence claim based on the theory of respondeat superior as to Garcia’s conduct, he would likewise vacate and remand that portion of the order as it relates to Sheriff Kincaid.

 

  1. As noted in the majority opinion, the ADA specifically excludes, “gender identity disorders not resulting from physical impairments, or other sexual behavior disorders.
  2. The ADA does not define gender identity disorders. For that matter, the phrase has not been interpreted by the Supreme Court or any of the other circuit courts. Accordingly, one has to look to the understanding of gender identity disorders at the time the statute was written, 1990.
  3. In 1990, the DSM was in the third, revised edition. That edition of the DSM provided that the essential feature of gender identity disorders was an incongruence between the assigned sex and gender identity. It added that even in mild cases of gender identity disorder, discomfort and a sense of inappropriateness about the assigned sex are experienced. In fact, the first diagnostic criteria for gender identity disorder under the DSM at the time was persistent or recurrent discomfort and a sense of inappropriateness about one’s assigned sex.
  4. Plaintiff’s allegations that referred to discomfort or distress caused by the discrepancy between her gender identity and her sex assigned at birth would have fallen into the gender identity disorder exclusion as understood at the time the ADA was written.
  5. Even accepting plaintiff’s allegations as true does not require turning a blind eye to the plain language of the statute. It also does not permit the plaintiff to use a word and declare it means just what the plaintiff chooses to have it mean.
  6. From 1990 to today, gender identity disorder has been understood to include distress and discomfort from identifying as a gender different from the one assigned at birth.
  7. In a footnote, Judge Quattlebaum notes that gender identity disorder and gender dysphoria are often cross-referenced or referred to as synonyms in a variety of different publications.
  8. The text of 42 U.S.C. §12211(b)(1) excluded gender identity disorders not resulting from a physical impairment. The plural use of the term “disorders,” should not be overlooked because it indicates that Congress considered this class to include more than one diagnosis. In fact, the DSM in effect at the time specified certain gender identity disorders and also included a category of gender identity disorders not otherwise specified.
  9. Whether gender dysphoria is a new diagnosis or replacement for gender identity disorder isn’t the point because the plain language of the statutory exclusion excludes gender identity disorders, which at the time included an alleged disability involving discomfort or distress caused by a discrepancy between one’s gender identity and the sex assigned at birth.
  10. To say that gender identity disorder did not extend to those who experience distress and discomfort from that identification is not consistent with the actual language of the DSM in effect at the time. It is also further undermined by consistent references to gender identity disorder and gender dysphoria in dictionary medical publication from 1990 to the present. It is also inconsistent with the statutory language excluding gender identity disorders contained within the ADA itself.
  11. Evidence exists that the DSM-5’s change from gender identity disorder to gender dysphoria primarily involved nomenclature so that it could avoid the stigmatizing effect of the existing nomenclature.
  12. Gender identity disorders meaning in effect at the time the ADA was enacted, and its evolution to the meaning of words and phrases does not modify the statute’s terms. It is the legislature with the responsibility of amending statutes and not courts or the APA or WPATH. That is, the focus must be on what gender disorders meant in 1990 and not what the American Psychiatric Association or other organizations have done since. Those organizations do not have the power to effectively modify statutes passed by Congress and signed into law by the president.
  13. Judicially modifying the meaning of a statute because of society’s changing attitudes not only invades the proper space for the legislature, it also turns a statute into a moving target.
  14. The amendments to the ADA are of no help because the policy of interpreting it liberally does not justify ignoring the plain words of limitation.
  15. The amendments to the ADA did not touch the exclusion of gender identity disorders in the ADA. Therefore, the understanding of that phrase from 1990 should be the guiding principle.
  16. The majority makes quite a big deal about avoiding a constitutional issue, but before you can even use that principle the statute itself must be ambiguous, which is not the case. Further, the constitutionality of §12211(b) has not properly been brought before the court as the plaintiff did not plead that issue or raise it before the district court.
  17. With respect to the equal protection issue, plaintiff did not raise that issue before the district court. So, no record was developed about whether the exclusions are discriminatory, the government’s interest in the exclusions, or the relationship of the exclusions to those governmental interests.
  18. The court should not wade into a constitutional question on its own when it was never presented to the district court.
  19. Plaintiff’s reliance on gender identity disorder being sufficiently alleged because of physical impairment does not help her either. In particular, the amended complaint does not identify any part of plaintiff’s body that is impaired or how or why it became impaired. She does not even allege a physical impairment generally.
  20. Plaintiff’s allegation that an individual with gender dysphoria may require feminization or masculinization of the body through hormone therapy and/or surgery in order to effectively alleviate or treat the condition does not imply the existence of a pre-existing physical impairment. At most, it implies that hormone therapy and/or surgery may be helpful to treat the condition.
  21. 12211(b)(1) requires that a person’s gender identity disorder result from a physical impairment. That means the physical impairment has to come first.
  22. What Williams really seems to be arguing is that for transgender individuals experiencing stress and discomfort about their gender incongruity, the physical impairment is that for those individuals were assigned a gender at birth and have the accompanying physical characteristics different from the gender that they identify with. However, that cannot be an impairment for purposes of the exclusion because it would read “not resulting from physical impairment,” out of the statute. After all, anyone with a gender identity disorder or gender dysphoria under the respective diagnostic statistical manual was born with physical characteristics differing from the gender they identify with.

 

V

If I Were on the Panel and Thoughts/Takeaways

 

  1. If I were on the panel, I would agree with both the majority and the dissenting opinion. I would agree with the majority with respect to a question of fact being present that the plaintiff has a physical impairment that needs investigating for the reasons laid out by the majority in its opinion. Particularly significant, is that the plaintiff had been on hormone therapy for 15 years and that therapy worked very well for her. I would agree with the dissent, that gender dysphoria must have been included within the definition of gender identity disorders at the time the ADA was enacted for the reasons laid out by the dissenting opinion. I would also agree with the majority that the gender identity disorder exclusion from the ADA is undoubtedly unconstitutional. As a result of Bostock, which we discussed here, transgender individuals, as noted by the majority, fall within an intermediate scrutiny class. As the majority opinion discusses, prejudice was clearly a big factor in the gender identity disorder exclusion. Between the legislative history and Bostock, there is little doubt in my mind that the gender identity disorder exclusion is no longer constitutional.
  2. Both the majority and dissent agree that the exclusion must be viewed as it existed in 1990. However, they reach opposite conclusions from there.
  3. The decision came down August 16, 2022. So, it is simply too early to tell what is next. It wouldn’t surprise me to see a rehearing en banc petition filed. I set a law 360 alert for this case. Today, 8/31/2022, it alerted me that the individuals sued in the case did request an en banc rehearing. On October 11, 2022, it was reported that the Fourth Circuit denied the en banc rehearing request.
  4. Transgender and being gay or lesbian are undoubtedly subject to intermediate scrutiny in light of Bostock. Persons with any other disability may be subject to rational basis scrutiny or not in light of Board of Trustees of the University of Alabama v. Garrett and Tennessee v. Lane. For a group of individuals that silo terribly, which people with disabilities do, it is unfortunate that equal protection jurisprudence now sets persons with disabilities against each other.