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

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

Have a great week y’all.

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

 

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

 

I

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

II

Just When Does the Statute of Limitations Begin to Run

 

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

III

Whether An Adverse Action Exists

 

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

 

IV

Whether the Regarded As Claims Can Go Forward

 

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

V

Pretextual

 

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

 

 

 

VI

Whether The Failure to Accommodate Claims Can Go Forward

 

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

 

VII

Disparate Impact or Disparate Treatment

 

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

 

VIII

Whether The Interference Claims Can Go Forward

 

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

 

 

IX

Thoughts/Takeaways.

 

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

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

 

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

 

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

 

I

Proposed Regulations

 

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

 

II

Comments Requested

 

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

 

 

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

 

 

III

Thoughts/Takeaways

 

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

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

 

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

 

I

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

 

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

 

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

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

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

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

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

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

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

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

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

 

II

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

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

III

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

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

IV

Thoughts/Takeaways

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

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

 

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

 

I

Facts

 

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

 

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

 

II

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

 

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

 

III

Judge Ho Concurring Opinion

 

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

 

IV

Judge Jones Concurring in the Judgment Only Opinion

 

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

 

V

Thoughts/Takeaways

 

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

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

 

I

PWFA Proposed Rule

 

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

 

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

 

II

FCC Proposed Rule and Video Conferencing Accessibility

 

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

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

 

I

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

 

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

 

II

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

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

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

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

Subpart A—General

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

Definitions.

* * * * *

Archived web content means web content that—

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

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

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

* * * * *

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

* * * * *

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

* * * * *

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

* * * * *

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

* * * * *

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

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

Subpart H—Web and Mobile Accessibility

  1. Add new subpart H to read as follows:

Subpart H—Web and Mobile Accessibility

35.200

Requirements for web and mobile accessibility.

35.201

Exceptions.

35.202

Conforming alternate versions.

35.203

Equivalent facilitation.

35.204

Duties.

35.205–35.209

[Reserved]

Requirements for web and mobile accessibility.

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

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

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

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

(b) Requirements

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

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

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

Thoughts/takeaways/questions:

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

Exceptions.

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

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

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

Thoughts/takeaways/questions:

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

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

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

Thoughts/takeaways/questions:

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

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

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

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

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

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

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

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

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

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

Thoughts/takeaways/questions:

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

Conforming alternate versions.

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

Thoughts/takeaways/questions:

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

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

Equivalent facilitation.

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

Duties.

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

 

Thoughts/takeaways/questions:

 

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

 

III

60+ questions

 

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

I

Supreme Court Update and Regulatory Developments

 

Before getting started on the blog entry for the week, there was some bizarre developments in the case of Laufer v. Acheson Hotels, which we discussed two weeks in a row here. The developments are very well described by the Seyfarth Shaw firm in their blog, here. It will be interesting to see whether the Supreme Court decides to proceed with the case anyway. If it does decide to proceed, it is unclear to me who would make the oral argument for the plaintiff since they have withdrawn from the case. Would the Supreme Court then decide the case on the briefs only? Stay tuned for further developments.

 

In other news, the Department of Transportation, here, issued a final rule with respect to wheelchairs on board planes (OBW-onboard wheelchairs), and the accessibility of lavatories on planes. That final rule can be found here. It is great to see these rules, and I know people using wheelchairs and even those in the vision loss community will benefit. It would be nice to see similar rules for the hearing loss community. For example, my options for watching entertainment on airplanes are far more limited than hearing people options are. Also, with the exception of the announcements about oxygen masks made at the beginning of the flight, I have no idea what the announcements actually are. I am left guessing. You would think with Wi-Fi rapidly becoming standard across the entire aircraft, that this would be a fixable issue.

 

Finally, the EEOC issued a guidance on visual disabilities in the workplace and the ADA, which can be found here. Eric Meyer in his Employer Handbook Blog, here, nicely summarizes the guidance very well. Two things about the guidance leapt out at me. First, I did not see anything goofy with this particular guidance the way I did with the EEOC hearing loss guidance, which we discussed here. However, I am not visually impaired or blind, so it is possible that I may have missed something. From reading the guidance, it is quite obvious that the EEOC either has substantial experience working with the blind and/or visually impaired or it consulted with people in that community, which cannot be said for the hearing loss guidance and the Deaf, deaf, and hearing loss community. Second, I noticed that the EEOC quite consistently talks about how you can only seek documentation where a disability is obvious. Seeing that formulation quite often caused me to do a deeper dive. When you do that, it turns out that what is “obvious,” is far from obvious. Accordingly, the best approach may very well be to let the obviousness of the disability dictate how much documentation is requested rather than use “obvious,” as a litmus test to decide whether documentation should be sought at all. Third, in the example DD of the guidance, the EEOC waffles a little bit about whether the ADA is a nondelegable duty. The safer approach is to assume that it is. Clearly plenty of case law says as much as does DOJ.

 

II

Case of the Week

 

This week’s blog entry isn’t something I have previously blogged on. For the litigators that are our readers and for any civil procedure geeks, this entry is for you. The case of the day is Jones v. L.A. Central Plaza, a published decision from the Ninth Circuit decided on July 26, 2023, here. As usual, the discussion dealing with the case of the week is divided into categories and they are: facts; how a case proceeds to the summary judgment stage; court’s reasoning that it is improper to convert a motion for summary judgment into a motion to dismiss; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

Jones sued the defendant for architectural inaccessibility. For whatever reason, the defendant allowed the case to proceed through the summary judgment stage. Plaintiff filed a motion for summary judgment, which is a bit unusual in and of itself, and defendant didn’t explicitly respond to the motion to summary judgment in terms of replying to the motion to summary judgment. Instead, they said that the case should be dismissed. The district court in deciding the plaintiff’s motion for summary judgment on its own motion, decided to convert the motion into a motion to dismiss and assess whether the plaintiff met the standards of Iqbal/Twombly. It decided that plaintiff did not and threw out the case. It also denied a hypothetical leave to amend the complaint because the deadline to amend the complaint under the court’s rule 16 pretrial scheduling order have long passed. Plaintiff appealed saying that the judge could not work backwards that way. After all, the plaintiff claimed he had, and confirmed by the court’s own admission, developed evidence that would flush out any deficiencies with Iqbal/Twombly. So, the judge should have considered that evidence as part of the motion for summary judgment process.

 

II

How a case proceeds to the Summary Judgment Stage

 

  1. In order for a plaintiff to show standing under article III, a plaintiff has to show: 1) it has suffered an injury in fact that is A) concrete and particularized and B) actual or imminent, not conjectural or hypothetical; 2) the injury is fairly traceable to the challenged action of the defendant; and 3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.
  2. Satisfying the standing elements must be done in the manner and the degree of evidence required at the successive stages of litigation. That is, at the pleading stage, a plaintiff must allege sufficient facts that if taken as true demonstrate each element of standing. If the plaintiff does not do that, the complaint is subject to dismissal at the outset either upon motion by the defendant or on the court’s own motion. If the complaint’s factual allegations of article III standing are found to be adequate under Iqbal/Twombly or are not challenged at the outset by either the parties or the court, then the case proceeds to discovery for the parties to marshal evidence supporting their claims and defenses. During or after that process, either party can move for summary judgment, which requires a district court to enter judgment on a claim or defense if there is no genuine dispute as to any material fact.
  3. At the summary judgment stage, a plaintiff has to offer evidence and specific facts demonstrating each element of standing.

 

III

Court’s Reasoning That the District Court Cannot Work Backwards and Convert a Motion for Summary Judgment into a Motion to Dismiss.

 

  1. In the adversarial system of the United States, it is generally up to the parties to decide, within the parameters of the applicable procedural rules, what relief they wish to seek, what type of motion they wish to present to obtain that relief, and the arguments they wish to make in support.
  2. Standing issues can be raised on the court’s own motion at any time.
  3. After giving notice and a reasonable time to respond, a court may grant summary judgment for a movant, grant a summary judgment motion on grounds not raised by a party, or even ask the parties in the absence of a motion, to address the propriety of granting summary judgment on grounds identified by the court.
  4. When presented with matters outside the pleadings in connection with the motion to dismiss for failure to state a claim or for judgment on the pleadings, the district court may choose to exclude extrinsic matters and address the motion under applicable motion to dismiss standards. It could also convert the motion into one for summary judgment.
  5. In this case, the district court effectively did the reverse whereby it converted a motion for summary judgment into a motion to dismiss. The Federal Rules of Civil Procedure offer no support for such a conversion and is improper in most cases, if not virtually all.
  6. Converting a motion to dismiss to a motion for summary judgment can make sense because it allows for a prompt and efficient means of achieving a definitive resolution of a case dispositive issue based on an evidentiary record adequate for that specific purpose.
  7. A reverse conversion employed by the district court in this case goes against the principles of sound case management in many ways. For example, such a reverse conversion unjustifiably ignores the fuller evidentiary record assembled by the parties after they have already incurred the expense of discovery. Also, one of the chief objectives of Iqbal/Twombly is to avoid unlocking the doors of discovery for plaintiffs armed with nothing more than conclusions.
  8. The practical effect of a reverse conversion on the outcome of a summary judgment motion makes little sense. For example, suppose that the summary judgment record shows that the plaintiff has raised sufficient evidence of standing to allow or even to compel a trier of fact to decide in its favor with respect to standing. In that situation, dismissing the case based upon Iqbal/Twombly pleading deficiencies in the complaint changes the outcome in a way that is difficult to justify. In such a scenario, the litigation process reveals that the pleading deficiency is curable because the actual facts developed by the party shows that the plaintiff has enough proof to proceed, and that the evidence provided a roadmap for curing any overlooked Iqbal/Twombly deficiency in the complaint’s factual allegations.
  9. There is no possible justification for raising a purely technical pleading deficiency that the defendant never saw fit to raise. Had the defendant challenged the adequacy of the complaint’s factual allegations through a timely motion to dismiss per Iqbal/Twombly, those deficiencies presumably could have been cured before the allotted time to amend the pleadings had expired.
  10. A district court ignoring the parties factual presentation on summary judgment and instead insisting on raising on its own motion and un-objected to but potentially curable deficiency only after the time to amend has expired, hardly seems to promote a just determination of the action.
  11. A reverse conversion sets up a system whereby the ultimate outcome is not changed or the outcome is changed in a way that is exceedingly difficult to justify. Either way, it makes little sense not to simply decide the issues as the parties present them.
  12. The district court provided no notice to the parties that it was contemplating such a reverse conversion. A reverse conversion is problematic enough and especially so without notifying the parties of what is going to happen. The lack of notice also raises due process and fairness concerns.
  13. Where a court does decide to convert a motion to dismiss into a motion for summary judgment, by rule the court must afford all parties a reasonable opportunity to present all the material pertinent to the motion. The same should have happened with respect to the reverse conversion.
  14. While it is true that a district court has the power and obligation to reach jurisdictional issues such as standing on its own motion, that does not mean that it has the discretion later in the litigation, to retroactively examine the adequacy of the complaint’s factual allegations of standing under Iqbal/Twombly.
  15. When a court issues a post pleading date order to establish article III standing, the applicable standards are presumptively those governing summary judgment motion rather than those governing motions to dismiss.
  16. When the parties have briefed and argued a summary judgment motion, judicial efficiency is best served by dealing directly with those arguments rather than avoiding them.
  17. In the ordinary case, no justification exists for allowing a district court to travel back in time and train the lens of its inquiry on the bare allegations of the complaint while disregarding the factual record upon which a summary judgment movement has elected to rely.
  18. The record confirms the impropriety of the district court’s manner of proceeding. In fact, the district court itself said that Jones had provided facts that could demonstrate standing with his motion for summary judgment, but nevertheless inexplicably chose to ignore those facts and instead to evaluate the situation on Iqbal/Twombly grounds without even giving any notice that it planned to dispose of the case in such a novel and unjustifiable manner.

 

 

III

Thoughts/Takeaways

 

  1. While a motion to dismiss can occasionally be converted into a motion for summary judgment, this case illustrates that it doesn’t work the other way around for the reasons very well explained by the court.
  2. Iqbal/Twombly is not an easy standard for a plaintiff to meet. The best way to explain the ability to meet such a standard would be to allege enough facts so that a reasonable person would be on notice as to exactly what happened. The notice pleading standard that many of us learned in law school simply doesn’t exist, especially for disability discrimination cases. That said, it isn’t entirely all fact-based either. You want to put in enough facts so that is absolutely clear that all the elements of standing or of the particular claim alleged have been satisfied. Illinois courts have taken this approach for years.
  3. The language of the opinion is pretty stern and it is also a published decision. Accordingly, I don’t anticipate many trial judges in the future trying a reverse conversion like this one did.
  4. It is unusual for a plaintiff to file a motion for summary judgment, at least with the expectation that they would have a realistic chance of winning. It is far more typical for a defendant to file a motion for summary judgment and then for a plaintiff to either contest it or file a cross motion for summary judgment.
  5. Since Iqbal/Twombly is not an easy standard to meet, the defendant will most of the time file a motion to dismiss after the complaint has been filed. There are times when a defendant does not do that. In that situation or in the event a motion to dismiss is denied, the defendant just about always will file a motion for summary judgment at the pertinent time.
  6. How a judge deals with a summary judgment motion varies considerably from judge to judge. Some judges use it as a screen out for all but the very good cases. Other judges look for genuine issues of material fact and let a jury decide. Since very few cases go to jury, the motion for summary judgment pretty much dictates the whole case moving forward. That is, if the motion is granted to the defense, the case is dismissed. If the motion is not granted to the defense, the case invariably settles.
Green ADA lettering with pink squiggly background on a board with super large 3 of spades and 3 of diamonds playing cards glued on at upper left.
Happy 33 ADA

I wanted to get up a blog entry today because it is the 33rd anniversary of the Americans with Disabilities Act. Happy birthday!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

 

A short blog entry for today. It is possible I might have another blog entry this week that would be more detailed on something, but I wanted to be sure to get a blog entry up today. So here goes. It is a very short triple play so to speak, so you will not see the typical categories that my blog entries are divided into.

 

I

DOJ Title II Web Accessibility and Mobile Accessibility Rules Are Imminent.

 

Yesterday, DOJ announced that it has submitted a proposed rule to the Federal Register discussing their view of what title II websites for both the PC and mobile/cell phones might look like in terms of regulatory requirements to achieve meaningful accessibility for persons with disabilities. You can bet that will be a blog entry of mine when it comes out and no doubt will be widely blogged on by others.

 

II

 

Arizona State Law Prohibiting Transgender Girls from Participating in Athletics Thrown out with Respect to Transgender Girls Never Having Gone through Puberty.

 

In Doe v. Horne, here, Judge Zipps of the Arizona District Court held that the Arizona law prohibiting transgender girls from participating in sports where those girls have not gone through puberty or never will, violated the Constitution as well as title IX of the Civil Rights Act. The judge said that there was no rational basis for disallowing such individuals to participate in sports let alone any basis rising to the level of heightened scrutiny. The critical feature here is that all of the plaintiffs were transgender girls yet to go through puberty or were taking hormone blockers so that they never would go through puberty. An appeal has already been filed with the Ninth Circuit. It will be interesting to see what the Ninth Circuit does and ultimately how the Supreme Court deals with this.

 

III

 

In Deciding Whether a Person Is Entitled to SSDI, How a Service Animal Ameliorates the Individual’s Situation Cannot Be Factored in to That Decision

 

In Bryan H. v. Kijakazi, here, United States Magistrate Judge Jeffrey Gilbert remanded a case back to the Administrative Law Judge because the Administrative Law Judge failed to remove from her analysis of whether the claimant was entitled to SSDI benefits, the fact that the plaintiff needed a service animal in order to do certain jobs and even function in society. As we discussed here, SSDI does not factor in accommodations into deciding whether a person is entitled to benefits. My thanks to Prof. Leonard Sandler, a Clinical Law Professor at the University of Iowa, for sending me the Bryan H. case.

 

Happy birthday ADA!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

 

Stay cool everyone.

Today’s blog entry is on a topic that we have not previously discussed before or certainly we have not discussed much. The topic is §508 of the Rehabilitation Act. Otherwise known as 29 U.S.C. §794d. Case of the day is Orozco v. Merrick Garland decided by the U.S. Court of Appeals for the District of Columbia Circuit on February 17, 2023, here. As usual, the blog entry is divided into categories- with the exception of the last section the blog, the categories track the layout of the opinion-, and they are: introduction to §508; facts; court’s reasoning that §794d(f)(3) provides a private cause of action after exhaustion of administrative remedies; and my thoughts/takeaways. Of course, the reader is free to concentrate on any or all of the categories.

 

I

Introduction to §508

 

  1. In 1986, Congress required agencies to buy technology that employees with disability could use without needing special adaptive devices.
  2. In 1992, Congress broadened the definition of accessibility by requiring agencies buying technology to give users with and without disabilities comparable access to information and data.
  3. In 1998, Congress extended the comparable access mandate to a broader range of activities, i.e. developing, procuring, maintaining, or using technology. Congress also clarified the duty that providing comparable access obligation runs to individuals with disabilities who either are federal employees or members of the public seeking information or services.
  4. Also in 1998, Congress added an enforcement mechanism. The enforcement mechanism allows any individual with a disability to file an internal administrative complaint with the relevant agency. 29 U.S.C. §794d(f)(1)(A). If such a complaint is filed, Congress required the agency to address it using its procedures for discrimination in federally funded programs rather than its procedures for employment discrimination.
  5. The enforcement mechanism, through a series of statutory cross references, allows any individual filing an internal administrative complaint about inaccessible technology to utilize remedies and rights set forth in 29 U.S.C. §794a(a)(2). That section in turn makes the remedies, procedures, and rights contained in title VI of the Civil Rights Act of 1964 available to persons aggrieved by any act or failure to act by any recipient of federal assistance or federal provider of such assistance.
  6. In other words: 1) title VI of the Civil Rights Act of 1964 creates a cause of action to challenge race, color, or national origin discrimination in federally funded programs; 2) §794a(a)(2) of the Rehabilitation Act extend the same cause of action that title VI provides to persons aggrieved by disability discrimination in federally funded programs; and 3) §794d(f)(3) extends that same cause of action to anyone filing an administrative complaint about inaccessible technology under §794d.

 

II

Facts (taken directly from the opinion)

 

Jahinnslerth Orozco joined the FBI as an intelligence analyst in 2012. Because he is blind, Orozco relies on screen access software that “converts visual screen information into synthesized speech or into braille” to perform his job. Compl. ¶ 2, J.A. 8. 1

 

Such screen access tools, though, can be foiled by poor software design. For example, if a website includes an arrow button, its function might be obvious to a sighted user but difficult for screen access software to navigate without an alternative text description.

 

In April 2019, Orozco filed a complaint with the Assistant Attorney General for Administration at the Department of Justice, which oversees the FBI, alleging that the FBI had failed to deploy accessible technology in his workplace. The Assistant Attorney General for Administration generally handles complaints about discrimination in programs funded by the Department of Justice, and therefore is responsible for handling complaints about inaccessible technology. See 28 C.F.R. §§ 39.170(d)(4), 42.2(a); 29 U.S.C. § 794d(f)(2). To be 1 Because this case arises from a ruling on a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), we take as true the facts from Orozco’s first amended complaint and “matters of which we may take judicial notice,” and we “construe the facts, and reasonable inferences drawn from them, in the light most favorable” to Orozco. Singletary v. Howard Univ., 939 F.3d 287, 293 n.1 (D.C. Cir. 2019). 6 on the safe side, Orozco sent copies of his administrative complaint to both the FBI’s Equal Employment Opportunity Office, which handles employment discrimination complaints, and the FBI’s Chief Information Officer, which is responsible for procuring accessible technology. Orozco’s filing expressly reminded the FBI that it should handle his complaint using its procedures governing discrimination in federally funded programs. Compl. Letter 1–2, J.A. 29–30.

 

The FBI nonetheless routed Orozco’s complaint through its employee-discrimination process. See Letter from Arlene A. Gaylord to Timothy R. Elder (May 9, 2019), J.A. 33–35 (invoking 29 C.F.R. Part 1614’s employment discrimination procedures). Orozco once again filed his complaint with the Office of the Chief Information Officer, but he never received any response from that Office. Instead, the FBI’s Equal Employment Opportunity Office dismissed the complaint “for failure to state a claim of [employment] discrimination[.]” Letter from Richard Toscano to Timothy R. Elder (Aug. 7, 2019), J.A. 20. In the same letter, the FBI advised Orozco to contact the Office of the Chief Information Officer—which he had already done twice. Id.; see also Decl. Albert Elia Supp. Pl.’s Mem. Opp’n Def.’s Mot. Dismiss ¶¶ 6, 10–13, J.A. 26– 27.

 

Three months after his administrative complaint was dismissed, and having received no further communications from the FBI, Orozco filed suit in the United States District Court for the District of Columbia. His complaint reasserted the same violations of Section 794d(a) as his administrative filings, and it sought declaratory and injunctive relief against the Attorney General, who oversees the FBI. See Compl. ¶¶ (a)–(h), J.A. 15–16

 

The district court granted the FBI’s motion to dismiss. While recognizing “the challenges Mr. Orozco faces at his workplace,” the district court held that Section 794d(f)(3) “does not provide a cause of action” because it incorporates only the right to sue a “federal provider of * * * assistance” created by Section 794a(a)(2), and the FBI is not a federal provider of assistance when acting as an employer. Orozco v. Garland, No. 19–3336, 2021 WL 4502072, at *4–6 (D.D.C. Oct. 1, 2021). In a footnote, the district court declined to pass on the government’s separate argument that Orozco had failed to exhaust his administrative remedies. Id. at *6 n.3.

 

III

Court’s Reasoning That §794d(f)(3) Does Provide a Private Cause of Action after Exhausting Administrative Remedies

 

  1. 794d(f)(3) adopts the remedies, procedures, and rights set forth in §794a(a)(2). The provision then expressly defines to whom those remedies, procedures, and rights shall be available as being an individual with a disability filing a complaint under §794d(f)(1).
  2. 794a(a)(2) incorporates a set of remedies and rights found elsewhere-specifically in title VI of the Civil Rights Act of 1964. This particular section likewise separately defines to whom those rights are available as any person aggrieved by any recipient of federal assistance or federal provider of such assistance.
  3. While both §794d and §794a adopt the same enforcement remedies, rights, and procedures, they each independently define who gets to invoke those provisions to enforce the duty that each Section independently imposes.
  4. The Supreme Court has held that while §794a(a)(2) expressly incorporates title VI’s rights, remedies, and procedures-including its cause of action-§794a(a)(2) does not carry forward title VI’s separate definition of who can sue under that cause of action. Instead, its own definition of who is an authorized plaintiff governs.
  5. Congress must be taken at its word that when it incorporates the remedies, procedures, and rights set forth in another part of the Rehabilitation Act. This section of the Rehabilitation Act does that and no more.
  6. Congress created the cause of action to enforce the technology accessibility requirements of §794d. If Congress had meant also to incorporate §794a’s limits on who may sue, Congress would have said so. It didn’t do that. So, §794d(f)(3)’s own definition of qualifying plaintiff’s-any individual with a disability filing a complaint about technology accessibility-controls. Accordingly, Orozco can file suit.
  7. Orozco having the ability to file suit is a commonsense conclusion that gives the most natural meaning to each of the words Congress used in §794d((f)(3). That section says that the remedies, procedures, and rights in §794a(a)(2) are available to any individual with a disability filing an administrative complaint. Orozco certainly is an individual with a disability, and as an employee is one of the statutorily specified individuals who compiled the requisite administrative complaint about technology accessibility in the workplace. Holding that one section takes away what another section plainly grants puts the statute at war with itself and makes no sense.
  8. The district court’s reading of the statute appears to leave no one capable of using the rights, remedies, and procedures that §794d(f)(3) goes to all the trouble of adopting. In particular, this section if directed exclusively at inward facing activities, such as developing, procuring, maintaining, or using accessible technology within an agency.
  9. At oral argument, the government conceded that its reading of §794d(f)(3) does not leave any class of plaintiffs with a clear right to sue. Reading a statute expressly authorizing civil actions to authorize no civil actions renders that provision a nullity.
  10. The substantive protections of §794d apply equally to federal employees and to members of the public seeking information or services. All members of both groups are equally entitled to submit administrative complaints. Nothing in the substantive or remedial provisions of §794d even suggests that Congress meant to allow enforcement rights to members of the public seeking assistance, while deliberately withholding any such remedy from employees-especially when that leaves nobody able to sue. For that matter, nothing in the legislative history, executive interpretation, or purpose of this section supports the district court’s reasoning.
  11. The contemporaneous Executive Branch interpretation of §794d was exactly the opposite of the government’s current position. In 1999, the Atty. Gen. interpreted this section to authorize private lawsuits by employees and members of the public. It makes perfect sense that Congress decided not to incorporate the remedies section of §794a(a)(1) addressing employment discrimination lawsuit by federal employees because Congress specifically forbade agencies from treating administrative complaints about inaccessible technology as if they were about employment discrimination rather than about the failure to ensure federal funds are used in a nondiscriminatory manner.
  12. A violation of §794d does not resemble employment discrimination in any relevant respect.
  13. Congress’s purpose with §794d was to spur the innovative use of accessible technology by federal agencies. So, an agency can violate this section by failing to use available accessible technology regardless of whether the situation has anything to do with employment.
  14. The sovereign immunity argument doesn’t wash, because Congress has waived sovereign immunity when it comes to relief seeking other things than money damages, which is the case here.
  15. With respect to exhaustion of administrative remedies, it is unnecessary to decide it because it doesn’t affect the district court’s jurisdiction over the case. Orozco’s filing a complaint twice is sufficient to establish jurisdiction. Since any remaining exhaustion issues are not jurisdictional, it is up to the district court to address the question of a exhaustion on remand.
  16. Congress amended §794d to make sure that agencies would fulfill their responsibility to procure technology allowing employees with disabilities to participate fully in the workplace. To enforce that duty, Congress expressly provided a private right of action to any individual with a disability, including a federal employee, who first files an administrative complaint about inaccessible technology

 

IV

Thoughts/Takeaways

 

  1. A party has 90 days to seek cert. from the Supreme Court. As far as I can tell, no such petition was filed in this case.
  2. Even if cert. was sought, I am not aware of a United States Court of Appeals split on this issue. It will be interesting to see whether the circuit courts do split on this question. I am not sure they will as the reasoning of this case seems pretty solid. Also, the blowback from disability rights community for the government seeking cert. would be fierce. Since I don’t recall any such blowback occurring and the time for seeking review from the Supreme Court has passed, that makes me believe that Supreme Court review was not sought.
  3. Administrative exhaustion is required.
  4. The case is very significant because it creates a private cause of action, admittedly one for injunctive relief due to sovereign immunity, on behalf of a member of the public or an employee of the federal government who runs into an issue with the technology being utilized by the federal government being inaccessible to them. As a result, tester standing may become an issue. For a discussion of tester standing, see this blog entry for example.
  5. Attorney fees are available for §794d suits per §794a(b).