I had already gone through two drafts of putting this blog entry together when I saw that the United States Supreme Court came down with it decision in Cummings (we discussed the oral argument here). One thing Cummings shows me is that predicting the Supreme Court result from the oral argument is a fools errand. I will try to remember that the next time. The case will be my very next blog. In short, the majority opinion decides that emotional distress damages are simply not a part of the traditional calculus of contract damages and therefore, are not available under the Rehabilitation Act of 1973 as well as the Affordable Care Act. More on this next week or if I can swing it, later this week.

 

Today’s blog entry gets its origins from both a case in my pipeline and from me finishing a chapter on disability discrimination that will appear in the Rutter Group Federal Employment Law Litigation treatise later this year. So, the blog entry discusses two different concepts. First, does proving up a substantial limitation on the major life activity of working, which has customarily meant having to show that the plaintiff cannot do a broad range of jobs, survive the ADAAA? Second, does morbid obesity require an underlying physiological condition when claiming disability discrimination. As usual, the blog entry is divided into categories and they are: working at the major life activities; does morbid obesity require an underlying physiological condition in order to be considered a disability; Texas Tech University Health Sciences Center-El Paso v. Dr. Niehay facts; court’s reasoning that morbid obesity qualifies as an impairment in a regarded as claim even without evidence of an underlying physiological cause; court’s reasoning on the applicability of the catspaw theory; court’s reasoning that the lower court did not err in considering Texas Tech’s own personnel statements about what happened when the interim program director consulted Texas Tech University legal counsel; court’s reasoning that direct evidence existed; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Working as the Major Life Activity

 

In Sutton v. United Airlines the Supreme Court held that mitigating measures should be considered when deciding whether a person had a disability. That particular holding was overruled by the amendments to the ADA, the ADAAA. Sutton also said that to be substantially limited in the major life activity of working that you had to look at whether the individual could do a broad class of jobs. The question is whether after the amendments to the ADA does that principle still survive? The answer is confusing, especially if you do Boolean searching in a legal database as that will likely lead you one way that may not be accurate. What you do have to do is start with the case of Booth v. Nissan North America, 927 F.3d 387, 394 (6th Cir. 2019). Then, cite check, Sheppardize, or whatever you like to call it the section of Booth talking about how proving up working as the major life activity follows Sutton even after the ADAAA. When you do that, you find out that the EEOC also agrees that the analysis of the major life activity of working being substantially limited, which focuses on whether the individual can do a broad class of jobs, still survives even after the amendments to the ADA. See, EEOC Interpretive Guidance of title 1 of the ADA at 1630.2(j)(5) and (6). So, you have both case law as well as guidance from the EEOC itself talking about how the broad class of jobs is still the rule with respect to figuring out whether working as the major life activity is substantially limited. As such, if you are on the plaintiff side you definitely want to avoid alleging working as the major life activity if at all possible, a point which the EEOC makes in its guidance as well. If you do allege working as the major life activity and you do not have to, one wonders whether that wouldn’t give rise to a legal malpractice claim, and we discussed that possibility here.

 

II

Does Morbid Obesity Require an Underlying Physiological Condition in Order to Be Considered a Disability

 

The answer to this question entirely depends upon the jurisdiction you were in. At the federal level, the trend is very clear that morbid obesity requires an underlying physiological impairment in order to proceed with a disability discrimination claim. See here for example. However, many states have their own disability nondiscrimination laws and they are not necessarily tracking the federal trend. For example, we previously discussed how Washington has decided that morbid obesity is always a disability under Washington Law Against Discrimination. Recently, Texas has decided that under their disability nondiscrimination law, the Texas Commission on Human Rights Act law that morbid obesity does not require an underlying physiological impairment in a regarded as claim situation. Let’s take a look at the Texas decision, Texas Tech University Health Science Center-El Paso v. Dr. Niehay, here, decided on January 31, 2022, by the Court of Appeals of Texas.

 

III

 

Texas Tech University Health Science Center-El Paso v. Dr. Niehay Facts

 

The facts of this case are quite egregious and can be found in great detail in the opinion. Basically, you have a resident that weighed over 400 pounds. The program where she was doing a residency at did not appreciate that. She had a particular problem with the person who ran the residency program, an interim director. At one point, the interim director actually went into the University legal counsel’s office to figure out whether she could terminate the resident because of the plaintiff’s weight. The lawyer for the school said that she could not terminate based upon that reason because it would be discrimination. After hearing that, she repeated to the attorney that she believed that the resident was not performing well because of her weight and that she needed to find another reason to terminate her from the program. The University did not take steps to protect the information from when the program director consulted legal counsel when it was revealed what the nature of that conversation was at the program director’s deposition.

 

IV

Court’s Reasoning that Morbid Obesity Qualifies as an Impairment in a Regarded As Claim Even without Evidence of an Underlying Physiological Cause

 

  1. No dispute exists that plaintiff was morbidly obese.
  2. No dispute exists that her condition was transitory or minor.
  3. The Texas Commission on Human Rights Act defines a disability as a mental or physical impairment or being regarded as having such an impairment. Texas Labor Code Annotated §21.002(6).
  4. The Code of Federal Regulations as promulgated by the EEOC provided significant guidance to the interpretation of the Texas Commission on Human Rights Act.
  5. The relevant provisions in the Code of Federal Regulations define a physical or mental impairment as any physiological disorder or condition affecting one or more body systems. Those body systems might include the neurological, musculoskeletal, respiratory, cardiovascular, digestive, genitourinary, immune, circulatory, humic, lymphatic, skin, or endocrine system. 29 C.F.R. §1630.2(h)(1).
  6. While physiological disorder and physiological condition are not defined by the C.F.R., when the statute uses an undefined word, a court should apply the word’s common ordinary meaning.
  7. Webster’s defines physiology as the organic processes and phenomena of an organism or any of its parts of a particular bodily process.
  8. The word “condition,” when referring to a physical state includes, “a mode or state of being… proper or good condition (as for work or sports competition)… the physical status of the body as a whole… [Usually] used to indicate abnormality.” Morbid obesity meets these definitions.
  9. The Texas Court of Appeals cites to the Washington case that we discussed here.
  10. Plaintiff testified at her deposition that her morbid obesity is a contributing factor to cardiac issues and is also associated with metabolic syndrome, which includes hormonal imbalances, insulin resistance, and the potential to develop type II diabetes. She also testified that can affect activities such as walking, running, climbing, breathing and muscle function. Plaintiff and Amicus also directed the court to secondary medical authority viewing morbid obesity as a physiological disorder or disease without regard to its cause.
  11. Another Texas Court of Appeals has previously stated that obesity can be properly classified as a disability when it substantially affects the body system.
  12. In a regarded as claim, the plaintiff need not actually have the perceived impairment, rather plaintiff only needs to be regarded, whether it be correctly or incorrectly, as having it by the employer. It is illogical to suggest that a plaintiff must establish that the imagined impairment they are regarded as having by their employer-but don’t actually have-is also regarded by the employer as being caused by an imagined underlying physiological cause that they likewise don’t have. There is also no basis or authority for imposing that requirement on a portion of regarded as cases (where the plaintiff is shown to actually have the perceived impairment), but not others (where she isn’t).
  13. Texas Tech’s interpretation of the law makes no sense for another reason as well. That is, even if the employer did fabricate and imagine cause for the impairment that the person did not have, the specific cause they imagined would determine whether liability existed or not. For example, an employer deciding the employee was morbidly obese for psychological reasons could never be held liable for terminating the employee on that basis. Yet an employer who viewed the employee had being morbidly obese through no fault of their own-for physiological reason-would be subject to potential Texas Commission on Human Rights Act liability.
  14. The decision is limited to regarded as claims.
  15. It is possible that the defense may still prevail on the merits. For example, it might be able to show that the plaintiff was not qualified, especially since a person with a regarded as claim is not entitled to reasonable accommodations under the ADA as amended.

 

V

Court’s Reasoning on the Applicability of the Catspaw Theory

 

  1. Under the catspaw theory, a plaintiff need not show that the final, official decision-maker harbored a discriminatory animus toward her. Instead, the plaintiff may present evidence that a subordinate employee harbored such intent, and that the subordinate employee’s efforts led to a recommendation for termination, which the final decision-maker effectively rubber stamped. That is, federal courts will not blindly accept the titular decision-maker at the true decision-maker. Rather the question is whether the worker possess leverage, or exerted influence over the titular decision-maker.
  2. Another way to look at it is if a supervisor performs an act motivated by unlawful animus intended by the supervisor to cause an adverse employment action and that act as a proximate cause of the ultimate employment action, then the employer is liable.
  3. Some evidence existed that the interim program director was fulfilling the role of program director at the time of the disciplinary hearings. The interim program director testified at her deposition that she retained a function of program director, i.e. responsible for supervision of the program. She also reiterated that in her CV attached to her deposition. Finally, another physician who became a faculty member at the tail end of plaintiff’s disciplinary proceedings testified in his deposition that it was his understanding that the interim program director had been performing most of the duties of program director while another person served at the name director before his arrival.
  4. In a footnote, the court noted that the interim program director made corrections to her deposition testimony with her actual deposition testimony. If nothing else, that created the question of fact regarding the role she actually performed at the time of plaintiff’s termination.
  5. Evidence also existed that the interim program director used her position to initiate and pursue disciplinary proceedings against the plaintiff with limited supervision or input from the named program director. More particularly, without first consulting with the named program director, the interim director: 1) initiated an investigation into plaintiff’s performance; met with legal counsel; 2) sought advice on what disciplinary steps she should take; 3) called emergency meeting to discuss plaintiff’s performance; and 4) took the lead role in gathering and presenting information regarding plaintiff’s performance. She also sent emails outlining several new complaints about the plaintiff and advocated for urgent action. In the responses to those emails, several members of the disciplinary committee, advocated for plaintiff’s immediate suspension or termination based in part upon the information supplied by the interim program director.
  6. The named program director testified that he conducted no independent investigation to verify the information presented to him by the interim program director before recommending plaintiff’s termination. He also testified that had he been in charge of the disciplinary proceedings, he would have conducted an independent investigation into the claims against the plaintiff for reporting the matter onto the disciplinary committee.
  7. It was the interim program director that took the lead role in summarizing the evidence leading to the recommendation to terminate the plaintiff.
  8. No evidence existed that an independent investigation was launched before upholding the termination recommendation.

 

VI

Court’s Reasoning That the Lower Court Did Not Err in Considering Texas Tech’s Personnel Statements about What Happened When the Interim Program Director Consulted Texas Tech University Counsel

 

  1. A Yolanda Salas was present in the room when the interim program director met with Texas Tech University legal counsel, Frank Gonzalez, about the plaintiff’s situation.
  2. At that meeting, Salas said the following transpired:

 

Gonzalez advised Dr. Wells that “she had to find specific reasons why she wasn’t performing well to dismiss her,” and that Gonzalez advised Dr. Wells that she could not “use her weight as a reason to dismiss her.” He also reportedly advised Dr. Wells that there had to be other reasons to dismiss Dr. Niehay. Salas also testified that during the meeting, Gonzalez repeatedly cautioned Dr. Wells to be “careful how she handled this [and] that she couldn’t mention anything about her weight.” Dr. Wells agreed with Gonzalez that she could not mention Dr. Niehay’s weight, and then asked him how she could “word it,” apparently referring to her initiation of disciplinary proceedings, to instead “show” that Dr. Niehay was not performing well. And, Salas testified that Dr. Wells informed her after the meeting that she believed Dr. Niehay “wasn’t performing well because of her weight and that–but that she had to find a way to–find other reasons other than that” to terminate her. Salas expressed her belief that Dr. Wells was determined to find other reasons to dismiss Dr. Niehay, in order “to 20 As a predicate to this question, Dr. Niehay’s counsel first asked what Salas had told Dr. Niehay about what attorney Gonzalez had said. Texas Tech’s counsel then stated, “Objection, privileged.” The witness then asked that the question be repeated, and the counsel then asked a somewhat different question–whether a specific statement was made by attorney Gonzalez, to which no objection was made. 41 go around the weight issue” and that she later contacted various other faculty members, “just looking for a reason to dismiss her.”

 

  1. The parties agree that the communication between the interim program director and Frank Gonzalez were covered by the attorney-client privilege.
  2. The attorney-client privilege is waived when the holder of the privilege voluntarily discloses the privileged material to a third party.
  3. Salas, who was not a management level employee within the agency, lacked the independent authority to waive the privilege on Texas Tech’s behalf.
  4. The attorney-client privilege can also be lost during discovery proceedings when the party holding the privilege fails to adequately assert it, and instead allows the privileged information to be disclosed on the record.
  5. Texas Rules of Civil Procedure allows for an attorney to instruct a witness not to answer a question during an oral deposition if it is necessary to preserve a privilege.
  6. Texas Rules of Evidence supports the general rule that evidentiary privileges are waived at the privilege holder voluntarily discloses the privileged matter or consents to disclosure. One subsection of that rule specifically applies to the attorney-client privilege and limits the general waiver rule when there has been actual disclosure. That particular section provides a mechanism to clawback inadvertently disclose attorney-client communication providing it is done promptly.
  7. Texas Tech allowed the substance of the privilege communication to be elicited at a deposition and later transcribed. That is a problem because once the information has been disclosed, loss of confidentiality is irreversible.
  8. The preferred course of action would have been for Texas Tech’s counsel at Salas’s’ deposition to instruct Salas , who was a current employee, not to reveal attorney-client communications, an approach specifically allowed by the Texas Rules of Civil Procedure. That simply wasn’t done. Further, Texas Tech took no action to protect the privilege communication until almost 2 years later, which was certainly not promptly, when objected to plaintiff’s use of the deposition when it filed a motion to strike.

 

VII

Court’s Reasoning That Direct Evidence Existed

 

  1. Salas’s testimony was direct evidence that the interim program director had discriminatory intent against the plaintiff based upon plaintiff’s perceived impairment, and so the McDonnell Douglas burden shifting procedure does not apply to this case.
  2. For workplace comments to provide sufficient evidence of discrimination, the remarks must be: 1) related to the protected class; 2) proximate in time to the adverse employment decision; 3) made by an individual with authority over the employment decision at issue; and 4) related to the employment decision at issue.
  3. Salas’s testimony not only contained comments that the interim program director viewed plaintiff’s weight to be an impairment, but also expressed an intent to terminate the plaintiff and find other pretextual reason to cover up her true motives. The timing of those statements was just before the imposition of the probationary period that preceded plaintiff’s termination.

 

VIII

Thoughts/Takeaways

 

  1. Many states have disability nondiscrimination laws and they may take a different approach than the federal cases interpreting the ADA even though those states will look to the ADA and the EEOC for guidance. Washington and Texas have now done precisely that with respect to whether a physiological condition is required for morbid obesity claims. The Washington case goes further because it extends beyond regarded as claims.
  2. The Texas case is a regarded as claim case. That is a very important distinction because under both Texas and the ADA as amended, regarded as claims do not allow for reasonable accommodations. In this particular case, that could be a critical factor.
  3. Whether morbid obesity requires an underlying physiological condition will undoubtedly head to the Supreme Court eventually.
  4. As far back as 1993, the First Circuit held that morbid obesity was a disability under §504 of the Rehabilitation Act. See, Cook v. Rhode Island, Department of Mental Health, Retardation, & Hospitals, 10 F.3d 17 (1st Cir. 1993), which was also a regarded as claim.
  5. Labor and employment lawyers frequently discuss the catspaw theory of liability as it can come up frequently. I haven’t done that much in my blog. The Texas decision does a nice job of laying out the theory in an understandable manner.
  6. Attorney-client privilege can be compromised by third parties in the room.
  7. Texas Tech’s approach to protecting the conversation was a bit strange. It seemed that just got lost in the shuffle somehow. If you do have an issue with needing to protect the attorney-client privilege, it has to be done promptly.
  8. It is rare at depositions where a lawyer instructs a witness not to answer a particular question, but it does happen from time to time and indeed, as this case illustrates, it should happen.
  9. Even if somehow the conversation with the attorney was not admitted, the facts of this case are so egregious that the plaintiff might still survive under McDonnell Douglas.
  10. Independent investigations are an excellent preventive law tool. If utilized in this case, the result may have been different.
  11. There also seemed to be a lack of training on what the rights of people with disabilities are. Be sure to use knowledgeable trainers (it’s a huge part of my practice).
  12. Direct v. indirect evidence is made a big deal of here. That continues to be the case in most places. We did discuss one court’s frustration with having to make the distinction constantly here.
  13. The first section of this blog entry should make it very clear that a plaintiff should only when absolutely necessary alleged working as the major life activity. It is simply too difficult to prove and also creates a risk of legal malpractice, which we discussed here. I believe that it is likely that even after Kisor v. Wilkie, which we discussed here, that determining whether working at the major life activity is substantially limited per the Sutton test and the EEOC interpretive guidance will survive if it ever gets to the Supreme Court.
  14. With respect to the morbid obesity question as a per se disability, the Texas Supreme Court will be hearing oral argument on this case and on that question on February 21, 2023.

Today’s blog entry discusses two different concepts. The first concept it discusses is what just does “transitory and minor,” mean for purposes of the regarded as exception and for purposes of what I mean when I keep talking about it as a great preventive law approach to deciding when a temporary disability might be protected under the actual disability prong. Second, the blog entry discusses a published decision, Buchanan v. Watkins and Letofsky, LLP, here, out of the Ninth Circuit decided April 7, 2022, discussing whether a business with multiple offices can have the employees from the multiple offices all count together for purposes of determining whether the minimum threshold of 15 employees is satisfied for purposes of subjecting that entity to the ADA. As usual, the blog entry is divided into categories and they are: just what does transitory and Minor mean?: Thoughts from Prof. Cheryl L Anderson of the Southern Illinois University Law School; just what does transitory and Minor mean?: My thoughts; Buchanan facts; court’s reasoning reversing and remanding the district court’s grant of summary judgment regarding whether the firm was an integrated employer; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories. Finally, I also want to thank the people who reached out to me on LinkedIn with their thoughts on what cases in my blog pipeline I should be blogging on next. The integrated employer case was one of the cases my readers wanted to know more about.

 

I

Just What Does Transitory and Minor Mean?: Thoughts from Prof. Cheryl L Anderson of the Southern Illinois University Law School.

 

 

For quite some time now, I have been talking about how an excellent preventive law approach to figuring out whether a temporary disability is an actual disability covered by the ADA would be to adopt the transitory and minor exception from the regarded as prong. I just assumed that what was “transitory and minor,” was obvious. I should have remembered my first day of law school when the law professor puts the word “assume,” on the board (it was a board back then😊), and then broke the word down into three separate subparts. It turns out that “transitory and minor,” is far from obvious as discussed in this excellent law review article coming soon in the University of San Diego Law Review (University of San Diego happens to be where I got my first law degree from), written by Prof. Cheryl L. Anderson of the Southern Illinois University Law School. In that law review article, she goes into the case law interpreting transitory and minor and reveals that the courts are absolutely all over the place. She suggests that there is no coherent explanation for why the length of impairment is the most important determinant of whether someone subjected to discrimination based upon that impairment is protected under the regarded as prong of the ADA. She also says that the legislative history makes only vague references to the business community’s concerns about the misapplication of resources unless the claims were’s at the lowest end of the severity spectrum. She does allow that it might be a misapplication of resources for an employer to have to accommodate the common cold or mild allergies or a hangnail, which was the types of conditions referenced in the legislative history. Those particular conditions are not impairments leading to adverse employment actions absent highly unusual situations. All that said, things like broken limbs, kidney stones, and miscarriages do not result in any less discriminatory stigma when they are the basis for the adverse actions when compared to other longer lasting disabilities. The law review article is entitled, “No Disability If You Recover: How the ADA Short Changes Short-Term Impairments.” It is an excellent article and can be found here. I strongly encourage its reading, and I don’t say that very often for law review articles.

 

II

Just What Does Transitory and Minor Mean?: My Thoughts

 

After reading the law review article mentioned above, I felt I had no choice but to clarify what I mean by, “transitory and minor.” Of course, my thoughts are not persuasive authority and may never be adopted by the courts. However, I keep talking about how transitory and minor is an excellent preventive law approach, and I do believe my readers are entitled to know what I mean when I refer to that term. When I refer to the term “transitory and minor,” the term means the following to me. First, transitory means a period of six months or less as you find in the exception for the regarded as prong. “Minor,” to me means anything that satisfies the definition of a disability under the actual disability prong after the amendments to the ADA. So, when I am referring to the term “transitory and minor,” what I have in mind is a period of six months or less and anything satisfying the definition of the actual disability prong after the amendments to the ADA. Of course, this approach means that particular condition must be BOTH transitory AND minor. I probably get to a very similar place as Prof. Anderson with this approach, though it may not be precisely the same.

 

III

Buchanan Facts

 

Starting in 2016, Amy Buchanan, the plaintiff, worked as a full-time associate attorney at Watkins and Letofsky Nevada, the defendant. In September 2016, because of health concerns, plaintiff resigned her position from the law firm. In December 2016, she returned to work there. Plaintiff alleges that when she did return, the firm agreed to accommodate her medical condition by reducing her expected commitment to 20 hours per week. Plaintiff further contended that despite this agreement, the firm required her to work more than 20 hours per week. In May 2017, after the plaintiff asked for time off to focus on her health, the firm (W & L Nevada), placed her on an indefinite leave of absence. She filed suit in the District Court of Clark County, Nevada. The firm removed it to federal court based upon federal question jurisdiction. The suit alleged violations of both the ADA as well as state law claims for breach of contract, breach of the implied covenant of good faith and fair dealing, retaliatory discharge, and unpaid wages. The district court granted summary judgment saying that the firm did not have 15 or more employees, and that the plaintiff did not present sufficient evidence to create a genuine issue of material fact whether the firm was an integrated enterprise with their offices in California. Plaintiff appealed.

 

IV

Court’s Reasoning Reversing and Remanding the District Court’s Grant of Summary Judgment Regarding Whether the Firm was an Integrated Employer

 

  1. The ADA applies to employers with 15 or more employees per 42 U.S.C. §12111(5)(A).
  2. The Ninth Circuit has held in analogous title VII cases that even when a defendant has fewer than 15 employees, a plaintiff can bring a statutory claim if she can establish that: 1) defendant is so interconnected with another employer so as to form an integrated enterprise; and 2) the integrated enterprise collectively has at least 15 employees.
  3. In the title VII context, there are four factors used to determine whether two entities are an integrated enterprise: 1) interrelation of operations; 2) common management; 3) centralized control of labor relations; and 4) common ownership OR (emphasis mine), financial control.
  4. The same factors have also been applied in the Ninth Circuit to the 20 employee threshold under the Age Discrimination in Employment Act.
  5. The statutory scheme and language of the ADA and title VII are identical in many respects. More particularly, the ADA, 42 U.S.C. §12111(5)(A), and title VII, 42 U.S.C. §2000e(b), both define employers to include only those entities with 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year. Further, title I of the ADA, 42 U.S.C. §12117, incorporates a remedial scheme identical to title VII. Finally, for purposes of determining whether an employer controls a corporation whose place of incorporation is a foreign country, both title VII and the ADA direct that courts consider the same factors the Ninth Circuit uses under the integrated enterprise test.
  6. For a long time, antidiscrimination statutes under title VII and the ADA have been analyzed in a parallel fashion. Since title VII and the ADA include the same 15 employee threshold and statutory enforcement scheme, the integrated enterprise doctrine applies equally under the ADA.
  7. With respect to interrelation of operations, plaintiff presented evidence that the two offices of the law firm shared a website and toll-free phone number, employees of both offices use the same email template footer which identified both offices, and both offices shared operational and administrative work, an IRS taxpayer identification number, and an employee roster. Further, the named partners were the only partners of the firm and managed both offices. They also managed all significant employment matters including hiring and firing of employees, employee discipline, performance evaluation, and scheduling and compensation.
  8. With respect to common financial control, there is no dispute that the named partners own both the Nevada and California firms. In a footnote, the court notes that the fourth factor of the integrated enterprise test addresses whether a plaintiff presents evidence of either common ownership or control, and not necessarily both. The court said that the district court erred in finding that the plaintiff had to establish both. Even so, the court believed that the plaintiff presented adequate evidence for a reasonable jury to find common ownership and financial control even if the plaintiff did not have to prove both.
  9. While the defendant did present some evidence that the Nevada and California offices were separate operations and maintain separate books, a jury could reasonably find that all four factors suggested an integrated enterprise when viewing the evidence in the light most favorable to the plaintiff.
  10. Defendant also argued that even if the Nevada and California branches of the firm were an integrated enterprise, they together had fewer than 15 employees. Since the district court did not address that argument, the matter was remanded back to the district court so it could consider that issue.

 

V

Thoughts/Takeaways

 

  1. Until reading the excellent law review article mentioned above, I simply always assumed that it was obvious what “transitory and minor,” meant. I should have remembered the very first day of contracts class taught by my favorite professor in law school, Prof. Frank Engfelt (I took every single class he taught. I am also eternally grateful for all the time he spent with me to make sure that I did the very best I could in his class. He is sorely missed, and I am glad that I could tell him what he meant to me prior to his death), when he wrote the word “assume,” on the board and then broke it down into three separate words. Accordingly, I believe it is essential that I clarify what I mean by “transitory and minor,” since I am always talking about it as an excellent preventive law approach. I still remain convinced that it is an excellent preventive law approach for figuring out when temporary disabilities are actual disabilities, but that preventive law approach only works within the narrow confines of how I define what, “transitory and minor” means as discussed in this blog entry.
  2. For the reasons stated by the Ninth Circuit, it makes perfect sense to me that the title VII integrated enterprise test would equally apply to the ADA. The test seems relatively straightforward to apply, though I am sure that will not always be the case.
  3. With respect to the fourth factor, plaintiffs have the opportunity to establish common ownership or control and do not have to establish both.
  4. It would seem to me that the vast majority of law firms with multiple offices would be integrated enterprises under the test set forth by the Ninth Circuit. It may depend upon the particular industry how likely multiple offices are to be considered integrated enterprises.
  5. As many of you know, one of the things that I’ve done in my career is that I spent a 12 year period teaching people full time how to be paralegals. I can tell you from personal experience that if you have a teacher who really made a difference for you, be sure to reach out to them. It simply doesn’t matter how long it has been since you may have done that, that teacher or professor will have their day, if not their year, made by you doing so. For example, in my case I had a former student reach out to me some 10 years after she had me for classes, I still haven’t forgotten that moment. I haven’t forgotten the other individuals that did the same either.

 

For those celebrating Easter next weekend, happy Easter. Also, for those in the midst of Ramadan, I hope that goes well as well. For those in the midst of Passover, I hope the rest of Passover, whatever that may mean for you, goes well.

Baseball season has started. Cleveland has a new name. Good luck to everyone with respect to their teams. My Braves are loaded as are the Chicago White Sox. The Chicago Cubs are in rebuilding mode I think. Good luck to everyone!

 

I actually have an embarrassment of riches with respect to cases to blog on. Currently, I probably have 10 really good cases in my pipeline worth blogging on with issues including: 1) what happens when a disability is not well controlled; 2) breakdown of interactive process; 3) what is a reasonable accommodation/the reasonable accommodation process and whether a probationary employee is covered by the ADA; 4) the police don’t have to use an ASL interpreter when a history exists with that particular individual of not using an ASL interpreter; 5) failure to accommodate an immunocompromised individual without unreasonable delay can lead to a wrongful death cause of action; 6) compulsory medical exams without cause being established first is not kosher; 7) morbid obesity does not require an underlying physiological condition and the catspaw theory of liability; 8) how do you go about figuring out an integrated employer; 9) a very narrow reading of reasonable accommodation requirements with respect to animals in the workplace; 10) and what is an adverse action and what is sufficient notice of the disability.

 

That said, this week’s blog entry is on none of those. Recently, on April 5, 2022, the Department of Justice released a guidance entitled, the Americans with Disabilities Act and the Opioid Crisis: Combating Discrimination against People in Treatment or Recovery. What I have done with this blog entry is reproduced that document in its entirety. Due to the cutting and pasting, the formatting is a bit different than what you will find here. For example, I made it clear where the footnotes begin. The numbers that you see are references to the footnotes. Finally, what I have done is reproduce the document exactly and then made clear when I am offering my own thoughts. If a section does not contain “my thoughts,” then I believe that section is self-evident and doesn’t really need any clarification or additional thoughts from me. So, the blog entry isn’t divided into usual categories.

 

 

The Americans with Disabilities Act and the Opioid Crisis: Combating Discrimination Against People in Treatment or Recovery

 

The opioid crisis poses an extraordinary challenge to communities throughout our country. The Department of Justice (the Department) has responded with a comprehensive approach prioritizing prevention, enforcement, and treatment. This includes enforcing the Americans with Disabilities Act (ADA), which prohibits discrimination against people in recovery from opioid use disorder (OUD) who are not engaging in illegal drug use, including those who are taking legally-prescribed medication to treat their OUD. This guidance document provides information about how the ADA can protect individuals with OUD from discrimination—an important part of combating the opioid epidemic across American communities. While this document focuses on individuals with OUD, the legal principles discussed also apply to individuals with other types of substance use disorders.

 

  • What is the ADA? The ADA is a federal law that gives civil rights protections to individuals with disabilities in many areas of life. The ADA guarantees that people with disabilities have the same opportunities as everyone else to enjoy employment opportunities,1 participate in state and local government programs,2 and purchase goods and services.3 For example, the ADA protects people with disabilities from discrimination by social services agencies; child welfare agencies; courts; prisons and jails; medical facilities, including hospitals, doctors’ offices, and skilled nursing facilities; homeless shelters; and schools, colleges, and universities.

 

My thoughts: it is simply too narrow to say that title III of the ADA only applies to purchasing goods and services. It goes far beyond that. First, the question is whether the entity is a place of public accommodation, which is any of the categories listed in 42 U.S.C. §12181(7). Second, there can be all kinds of accessibility problems with respect to title III of the ADA besides just purchasing goods and services. In fact, 42 U.S.C. §12182(a) states: “No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.”

 

2) Does an individual in treatment or recovery from opioid use disorder have a disability under the ADA?

 

Typically, yes, unless the individual is currently engaged in illegal drug use. See Question 5.

 

The ADA prohibits discrimination on the basis of disability.4 The ADA defines disability as (1) a physical or mental impairment that substantially limits one or more major life activities, 2 including major bodily functions; (2) a record of such an impairment; or (3) being regarded as having such an impairment.5 People with OUD typically have a disability because they have a drug addiction that substantially limits one or more of their major life activities. Drug addiction is considered a physical or mental impairment under the ADA.6 Drug addiction occurs when the repeated use of drugs causes clinically significant impairment, such as health problems and or an inability to meet major responsibilities at work, school, or home.7 People with OUD may therefore experience a substantial limitation of one or more major life activities, such as caring for oneself, learning, concentrating, thinking, communicating, working, or the operation of major bodily functions, including neurological and brain functions. 8 The ADA also protects individuals who are in recovery, but who would be limited in a major life activity in the absence of treatment and/or services to support recovery. 9

 

3) Does the ADA protect individuals who are taking legally prescribed medication to treat their opioid use disorder?

 

Yes, if the individual is not engaged in the illegal use of drugs. Under the ADA, an individual’s use of prescribed medication, such as that used to treat OUD, is not an “illegal use of drugs” if the individual uses the medication under the supervision of a licensed health care professional, including primary care or other non-specialty providers.10 This includes medications for opioid use disorder (MOUD) or medication assisted treatment (MAT). MOUD is the use of one of three medications (methadone, buprenorphine, or naltrexone) approved by the Food and Drug Administration (FDA) for treatment of OUD;11 MAT refers to treatment of OUD and certain other substance use disorders by combining counseling and behavioral therapies with the use of FDA-approved medications.12

 

Example A

 

A skilled nursing facility refuses to admit a patient with OUD because the patient takes doctor-prescribed MOUD, and the facility prohibits any of its patients from taking MOUD. The facility’s exclusion of patients based on their OUD would violate the ADA.

 

Example B

 

A jail does not allow incoming inmates to continue taking MOUD prescribed before their detention. The jail’s blanket policy prohibiting the use of MOUD would violate the ADA. 3

 

My Thoughts: I have two other examples, both involving DOJ recent actions just prior to releasing the guidance, which is why I wasn’t surprised to see this guidance get issued.

 

Example C (mine): Pennsylvania courts prohibit people from participating in treatment programs unless they abstain from drug use regardless of whether medication-based treatment, i.e. drugs under the supervision of a physician, is something working for them. See here.

 

Example D (mine): A state nursing board prohibits people from participating in its nursing assistance program because the individual takes medication for opioid use disorder. Such a requirement I might add is not unusual at all for professional recovery programs around the country. See here.

 

4) Does the ADA protect individuals with opioid use disorder who currently participate in a drug treatment program?

 

Yes. Individuals whose OUD is a disability and who are participating in a supervised rehabilitation or drug treatment program are protected by the ADA if they are not currently engaging in the illegal use of drugs.13 See explanation in Question 5. It is illegal to discriminate against these individuals based on their treatment for OUD.

 

Example C

 

A doctor’s office has a blanket policy of denying care to patients receiving treatment for OUD. The office would violate the ADA if it excludes individuals based on their OUD.

 

Example D

 

A town refuses to allow a treatment center for people with OUD to open after residents complained that they did not want “those kind of people” in their area. The town may violate the ADA if its refusal is because of the residents’ hostility towards people with OUD.

 

5) Does the ADA protect individuals who are currently illegally using opioids?

 

Generally, no. With limited exceptions, the ADA does not protect individuals engaged in the current illegal use of drugs if an entity takes action against them because of that illegal drug use.14 “Current illegal use of drugs” means illegal use of drugs that occurred 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.15 Illegal use, however, does not include taking a medication, including an opioid or medication used to treat OUD, under the supervision of a licensed health care professional.16

 

My thoughts: what is “not currently engaging in the illegal use of drugs,” can be very complicated as we discussed here.

 

 

Example E

 

A mentoring program requires its volunteers to provide test results showing that they do not engage in the illegal use of drugs. The program dismisses a volunteer who tests positive for opioids for which the volunteer does not have a valid prescription. This does not violate the ADA because the dismissal was based on current illegal drug use. 4 In addition, an individual cannot be denied health services, or services provided in connection with drug rehabilitation, on the basis of that individual’s current illegal use of drugs, if the individual is otherwise entitled to such services.17 But a drug rehabilitation or treatment program may deny participation to individuals who engage in illegal use of drugs while they are in the program.18

 

Example F

 

A hospital emergency room routinely turns away people experiencing drug overdoses, but admits all other patients who are experiencing emergency health issues. The hospital would be in violation of the ADA for denying health services to those individuals because of their current illegal drug use, since those individuals would otherwise be entitled to emergency services.

 

Example G

 

A drug rehabilitation program asks a participant to leave because that participant routinely breaks a rule prohibiting the use of illegal drugs while in the program. This is not discrimination under the ADA because the program can require participants to abstain from illegal drugs while in the program.

 

 

6) Does the ADA protect individuals with a history of past opioid use disorder, who no longer illegally use drugs?

 

Yes. The ADA protects individuals with a “record of” disability. As explained above in Question 2, OUD typically qualifies as a disability. Therefore, individuals with a “record of” having OUD usually will be protected under the ADA. 19 Individuals would fall into this category if they have a history of, or have been misclassified as having, OUD. 20

 

Example H

 

A city terminates an employee based on his disclosure that he completed treatment for a previous addiction to prescription opioids. The city may be in violation of the ADA for discriminating against the employee based on his record of OUD. 5

 

7) Does the ADA provide any legal protections for individuals who are regarded as having an opioid use disorder, whether or not they actually have an opioid use disorder?

 

Yes. The ADA protects individuals who are “regarded as” having OUD, even if they do not in fact have OUD. 21

 

Example I

 

An employer mistakenly believes that an employee has OUD simply because that employee uses opioids legally prescribed by her physician to treat pain associated with an injury. The ADA prohibits an employer from firing the employee based on this mistaken belief.

 

My thoughts: After the amendments to the ADA, a plaintiff only has to show they were regarded as having a physical or mental impairment for the regarded as prong to apply. A plaintiff does not have to show that they were regarded as having a substantial limitation on a major life activity.

 

8) Does the ADA protect individuals from discrimination based on their association with individuals who have opioid use disorder?

 

Yes. The ADA protects individuals from discrimination based on their known association or relationship with an individual who has a disability, such as a friend, coworker, or family member. The ADA also protects organizations, such as OUD treatment clinics, from discriminatory enforcement of zoning rules based on the organization’s known association with or relationship to individuals with OUD. 22

 

My thoughts: For title I and title III of the ADA, you can actually find statutory provisions prohibiting discrimination against those associating with someone with a disability. As the referencing footnote makes clear, title II of the ADA only has regulatory provisions on that but not statutory provisions. Case law has held that association discrimination does apply to title II of the ADA, such as here.

 

9) Can employers have a drug policy or conduct drug testing for opioids?

 

Yes. Employers may adopt or administer reasonable policies or procedures, including drug testing, designed to ensure that individuals are not engaging in the illegal use of drugs.23 However, some individuals who test positive for an opioid, which may include MOUD, will be able to show that the medication is being taken as prescribed or administered and a licensed health care professional is supervising its use. These individuals may not be denied, or fired from, a job for this legal use of medication, unless they cannot do the job safely and effectively, or are disqualified under another federal law.24

 

10) What can I do if I believe I have been discriminated against because of my opioid use disorder or treatment for my opioid use disorder?

 

Individuals may file a complaint with the Department of Justice if they believe that a public accommodation or a state or local government is discriminating or has discriminated against them because of OUD. Individuals may also bring private lawsuits under the ADA. 6 Information about filing an ADA complaint with the Department is available at civilrights.justice.gov. More information about the ADA is available by calling the Department’s toll-free ADA information line at 800-514-0301 or 800-514-0383 (TTY), or accessing its ADA website at ada.gov. Complaints about a state or local government’s programs, services, or activities relating to the provision of health care and social services can also be filed with the Department of Health and Human Services Office for Civil Rights (HHS OCR). Information about filing an HHS OCR complaint is available at hhs.gov/civil-rights/filing-a-complaint, by email at OCRMail@hhs.gov, by phone at 1-800-368-1019, or at 1-800-537-7697 (TTY). Complaints about employment discrimination (called “charges”) on the basis of disability can be filed with the Equal Employment Opportunity Commission (EEOC). Information about filing an EEOC charge is available at eeoc.gov or 800-669-4000, 800-669-6820 (TTY), or 844-234-5122 (ASL Video Phone). Additional EEOC resources regarding employees and opioid use are available at eeoc.gov/laws/guidance/use-codeine-oxycodone-and-other-opioids-informationemployees and eeoc.gov/laws/guidance/how-health-care-providers-can-help-current-andformer-patients-who-have-used-opioids. Individuals who believe they have been discriminated against under the ADA and would like to file a complaint should file as soon as possible. For instance, there are specific filing deadlines for a charge of employment discrimination, either 180 days or 300 days from the date of the alleged discrimination, depending on the jurisdiction where the charge is filed.

 

My thoughts:

  • Exhaustion of administrative remedies is not required for title II and III matters (title I does require exhaustion with the EEOC), but if you do go the route of DOJ, remember the statute of limitations keeps running because exhaustion is not required;
  • This guidance is absolutely huge for two reasons. First, it shows that the DOJ is watching. Second, many professional recovery programs, especially for healthcare professionals, insist on abstinence as a condition of participating in those programs. Working with licensing counsel to help them represent individuals who find themselves in such situations has become an increasingly large part of my practice over the last couple of years. If such an individual does not do what is required by the professional recovery program, there are licensing discipline issues that arise. Those professional recovery programs are now going to have to strongly reconsider abstinence only requirements.

 

11) Where can I find treatment for opioid use disorder?

 

Information about treatment for opioid use disorder is available at hhs.gov/opioids, findtreatment.gov, samhsa.gov/medication-assisted-treatment/practitioner-programdata/treatment-practitioner-locator, and dpt2.samhsa.gov/treatment. Date issued: April 5, 2022

 

Footnotes:

My thoughts: I checked the footnotes, and they do support the particular referenced statement within the body of the document.

 

1 42 U.S.C. §§ 12111-12117. The Equal Employment Opportunity Commission (EEOC) and the Department of Justice jointly enforce the ADA’s ban on employment discrimination. For more information or to file a complaint of employment discrimination, visit eeoc.gov.

 

2 Id. §§ 12131-12134. 7

 

3 Id. §§ 12181-12189.

 

4 Id. §§ 12112, 12132, 12182.

 

5 Id. § 12102(1)-(2).

 

6 28 C.F.R. §§ 35.108(b)(2), 36.105(b)(2). Regulations implementing Title I of the ADA define the term “physical or mental impairment” as including “any physiological disorder or condition.” 29 C.F.R. § 1630.2(h).

 

7 See Substance Abuse and Mental Health Services Administration, Mental Health and Substance Use Disorders, samhsa.gov/find-help/disorders (last visited Apr. 1, 2022).

 

8 42 U.S.C. § 12102; 28 C.F.R. §§ 35.108(c)(1) (listing examples of major life activities, which include the operation of major bodily functions), 36.105(c)(1) (same).

 

9 28 C.F.R. §§ 35.108(d)(1)(viii), 36.105(d)(1)(viii).

 

10 42 U.S.C. § 12210(d); 28 C.F.R. §§ 35.104, 36.104.

 

11 See Substance Abuse and Mental Health Services Administration, TIP 63: Medications for Opioid Use Disorder, store.samhsa.gov/product/TIP-63-Medications-for-Opioid-Use-Disorder-Full-Document/PEP21-02-01-002 (last visited Apr. 1, 2022); see also Health Resources and Services Administration, Caring for Women with Opioid Use Disorder: A Toolkit for Organization Leaders and Providers, hrsa.gov/sites/default/files/hrsa/Caring-for-Womenwith-Opioid-Disorder.pdf (last visited Apr. 1, 2022).

 

12 See Substance Abuse and Mental Health Services Administration, Medication-Assisted Treatment (MAT), samhsa.gov/medication-assisted-treatment (last visited Apr. 1, 2022); see also Substance Abuse and Mental Health Services Administration, MAT Medications, Counseling, and Related Conditions, samhsa.gov/medication-assistedtreatment/medications-counseling-related-conditions (last visited Apr. 1, 2022).

 

13 42 U.S.C. § 12210(b)(2); 28 C.F.R. §§ 35.131(a)(2)(ii), 36.209(a)(2)(ii).

 

14 42 U.S.C. § 12210(a); 28 C.F.R. §§ 35.131(a)(1), 36.209(a)(1).

 

15 28 C.F.R. §§ 35.104, 36.104.

 

16 42 U.S.C. § 12210(d); 28 C.F.R. §§ 35.104, 36.104.

 

17 42 U.S.C. § 12210(c); 28 C.F.R. §§ 35.131(b)(1), 36.209(b)(1).

 

18 28 C.F.R. §§ 35.131(b)(2), 36.209(b)(2).

 

19 42 U.S.C. § 12102(1)(B); 28 C.F.R. §§ 35.108(a)(1)(ii), 36.105(a)(1)(ii).

 

20 42 U.S.C. § 12102(1)(B); 28 C.F.R. §§ 35.108(e), 36.105(e).

 

21 42 U.S.C. § 12102(1)(C); 28 C.F.R. §§ 35.108(a)(1)(iii), 35.108(f), 36.105(a)(1)(iii), 36.105(f); see also 42 U.S.C. § 12201(h); 28 C.F.R. §§ 35.130(b)(7)(ii), 36.302(g); 29 C.F.R. § 1630.2(o)(4) (noting that individuals who meet the definition of “disability” solely because they are “regarded as” disabled are not entitled to reasonable modifications or reasonable accommodations under the ADA).

 

22 42 U.S.C. § 12112(b)(4); 42 U.S.C. § 12182(b)(1)(E); 28 C.F.R. §§ 35.130(g), 36.205; 29 C.F.R. § 1630.8.

 

23 42 U.S.C. §§ 12114(b), 12114(d); 29 C.F.R. §§ 1630.3(c), 1630.16(c); see also 42 U.S.C. § 12210(b); 28 C.F.R. §§ 35.131(c), 36.209(c) (drug testing by Title II and Title III entities).

 

24 See, e.g., 42 U.S.C. § 12111(3); 29 C.F.R. §§ 1630.2(r), 1630.15(b)(2), 1630.15(e). 8

 

The Americans with Disabilities Act authorizes the Department of Justice to provide technical assistance to individuals and entities that have rights or responsibilities under the Act. This document provides informal guidance to assist you in understanding the ADA and the Department’s regulations. The contents of this document do not have the force and effect of law and are not meant to bind the public in any way. This document is intended to provide clarity to the public regarding existing requirements under the law or Department policies.

 

My thoughts: The statement that appears under the footnotes is necessary as a result of Kisor v. Wilkie, which we discussed here. In my opinion, this particular guidance would be one likely to get Auer deference even after Kisor.

 

On April 21, 2021, I came across a document entitled an, “alcohol use disorder bench card.” The logos on the document are from SoberLink and from NCJFCJ, the National Council of Juvenile and Family Court judges. The logos had me fearing the worst, but when you look at the document itself it is not too bad. The document can be found here. My only worry is that in the very last diagram there is no suggestion of evidence-based treatment, which may or may not be a problem in light of this guidance discussed in this blog entry. I did find the alcohol addiction myths section  excellent. Those myths easily translate over to substance use disorder.

Consider the same set of facts. Title III’s final implementing contain requirements for hotels to post the availability of accessible hotel rooms, 28 C.F.R. §36.302(e), (don’t get me started on how hotels deal with rooms for Deaf, deaf and HOH customers). Two individuals are self avowed testers that visit websites of hotel to see if the hotels meeting those regulatory requirements. Neither has any intention of visiting those hotels or has any personal need for the information missing from the websites. When they find a hotel that does not meet the regulatory requirements, they bring suit. What result? The two cases that we will discuss have results completely opposite of each other and cannot be reconciled. The 11th Circuit in Laufer v. Arpan, here, holds with three different opinions that the plaintiff has standing in this case. On the other hand, the Second Circuit in Harty v. West Point Realty Inc., here, unanimously holds that the plaintiff lacked standing. We will discuss both. As usual, the blog entry is divided into categories and they are: Opinion for the Laufer court (Judge Newsom); Judge Jordan concurring opinion; Judge Newsom concurring opinion; Harty Court’s Reasoning; Can Havens Realty be reconciled with TransUnion/my thoughts; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Opinion for the Laufer Court (Judge Newsom)

 

  1. Whether an intangible harm is sufficient for concreteness, involves exploring whether the alleged injury bears a close relationship to the harm traditionally recognized as providing a basis for lawsuits in American courts. Congressional judgment is instructive and important in that respect because Congress is well-positioned to identify intangible harms meeting Article III requirements.
  2. A reviewing court has to independently decide whether a plaintiff has suffered a concrete harm under Article III because Congress cannot use its lawmaking power to transform something that is not remotely harmful into something that is (see our discussion of the TransUnion case, here).
  3. In Sierra, which we discussed here, the 11th Circuit held that a culturally deaf individual suffered a concrete stigmatic injury when he could not understand videos a city posted on its official website for which it refused to provide closed captioning.
  4. An individual who suffers an intangible injury from discrimination does have standing if he personally experiences the discrimination.
  5. Discrimination itself through the perpetuation of archaic and stereotypic notions thereby stigmatizing members of the disfavored group as innately inferior can cause serious non-economic injuries to those persons denied equal treatment solely because of their membership in the disfavored group.
  6. In the 11th Circuit, a plaintiff can recover damages for emotional distress for a violation of §504 of the Rehabilitation Act.
  7. Emotional injury resulting from illegal discrimination is sufficient to constitute a concrete injury as it is a concrete harm existing in the real world.
  8. The Supreme Court has affirmed that discriminatory treatment in some shape or form is a concrete de facto injury that Congress may elevate to the status of a legally cognizable injury.
  9. Allegations that plaintiff suffered frustration and humiliation and a sense of isolation and segregation is adequate for pleading a concrete stigmatic injury. That is, her emotional injury is her emotional injury that affects her and a personal and individual way and is therefore sufficiently particularized.
  10. While the pleadings are adequate to proceed forward, that is a different kettle of fish from whether as a factual matter plaintiff has shown that she suffered the requisite frustration and humiliation as a result of viewing the websites. It will be up to the district court to figure that out, and it may conduct an evidentiary hearing to do that. Further, it will be for the district court to figure out whether an imminent future injury is involved as well as whether the traceability and redressability requirements are satisfied.
  11. The court took no position with respect to whether plaintiff properly alleged an informational injury as it did not feel necessary to visit that question in light of its decision on stigmatic injury.

 

II

Judge Jordan Concurring Opinion

 

  1. Plaintiff has alleged sufficient facts for an informational injury.
  2. The United States Supreme Court has previously ruled in Havens Realty Corp. that testers have standing to sue with respect to the Fair Housing Act, here (see also V below).
  3. The 11th Circuit has applied that Havens Realty to allow for standing in a title III matter with respect to architectural barriers as title III antidiscrimination and right of action provisions are similar to the Fair Housing Act provisions at issue in the Supreme Court decision upholding tester standing.
  4. In a footnote, Judge Jordan notes that the 10th and Ninth Circuits have also applied Havens Realty to allow for tester standing under title II as well with title III of the ADA.
  5. The District Court confused standing with the merits of the claim with respect to whether the plaintiff has a substantive right to have certain information disclosed.
  6. Where a person is entitled under federal law to information on certain topics and no information is provided, that information has been kept or withheld from the person.
  7. Havens Realty held that depriving someone of information to which one is legally entitled constitutes a cognizable injury under Article III of the U.S. Constitution.
  8. The 11th Circuit has previously held that a plaintiff suffers an injury in fact when the plaintiff fails to obtain information that must be publicly disclosed pursuant to a statute.
  9. Requiring the plaintiff to call the hotel to find out everything she wanted to find out is an additional burden that 28 C.F.R. §36.302(e)(1)(ii) is designed to avoid. That regulation specifically provides that individuals with disabilities should be able to make reservation for accessible guest rooms in the same manner as individuals who do not need accessible guest rooms.
  10. It wasn’t Congress’ intention in enacting the Fair Housing Act to require individual to expend extra energy to acquire accurate information that the individual is legally entitled to and the ADA is no different.
  11. It is difficult to understand why the accessibility information missing from the hotel’s website is not relevant to a person with a disability who is acting as a tester to ensure compliance with the ADA. After all, a Fair Housing Act tester has no intention of actually renting from that particular landlord and yet the Fair Housing Act tester was held to have standing in Havens Realty.
  12. The ADA’s antidiscrimination provisions states that no individual shall be discriminated against on the basis of disability, 42 U.S.C. §12182(a), and when it comes to prohibited activities, “no individual” is the same as, “any person.” That is to say, “no individual,” and “any person,” are broad terms necessarily encompassing testers.
  13. There is no difference between being provided the wrong information in violation of federal law and being denied the information entirely in violation of federal law when it comes to establishing a cognizable injury.
  14. The plaintiff in Havens Realty did not need to allege downstream consequences in order to establish injury, so it is hard to imagine why the plaintiff in this case needs to do so.
  15. Harty, to be discussed below, doesn’t add up because how is a self-proclaimed tester seeking to ensure ADA compliance any different than a self-proclaimed tester seeking to ensure compliance with the Fair Housing Act. There aren’t any court decisions that answer that question persuasively. So, the 11th Circuit is bound to follow Havens Realty, which allowed tester standing.
  16. Havens Realty rested in part on the notion that an injury in fact can exist simply by virtue of the violation of a statutory right (see also V below). However, the Supreme Court seems to be headed in a different direction. Nevertheless, Havens Realty remains on the books and therefore, has to be followed.
  17. Even if you assume that downstream consequences are required, stigmatic harm works for that purpose.

 

III

Judge Newsom Concurring Opinion

 

  1. The Supreme Court has said that in determining whether an intangible harm results in an injury in fact, both history and the judgment of Congress have to play important roles.
  2. In a pair of decisions issued nearly 40 years ago, the Supreme Court recognized that discrimination could give rise to a stigmatic injury sufficient to confer Article III standing.
  3. In light of recent Supreme Court opinions, the place of stigmatic injury is confusing. That is, it simply isn’t clear how and under what conditions the stigmatic injury survives as a basis for standing under Spokeo/TransUnion.
  4. TransUnion says that courts should not automatically equate statutory violation with concrete injuries and it is unclear whether statutory violations need to have downstream effects so as to justify standing.
  5. The rest of Judge Newsom’s concurring opinion is devoted to Judge Newsom’s view that there are two defensible historical approaches to Article III case or controversy requirement but TransUnion is not one of them. The two approaches are: 1) a case exists whenever the plaintiff has a cause of action; and 2) only the particular common-law causes of action existing at the time of the founding fathers, 1787, can serve as a valid analog for modern-day Article III cases. He also argues, as he did in Sierra, that Congress cannot give anyone else, including private parties, a right to sue on behalf of the community and seek a remedy accruing to the public, as the ADA does if it allows tester standing. In a tester case, the tester literally manufactures her own standing by bringing herself to the source of her own injury. Accordingly, that violates Article II the Constitution because it is exactly the type of proactive enforcement discretion properly reserved to the executive branch. For example, the plaintiff in this case exercises executive style enforcement discretion by freely choosing how vigorously the law should be enforced by deciding whether to bring one lawsuit, a dozen, or even hundreds. There isn’t even an external check on that choice. There is no limit to the number of defendants that a tester can investigate, decide to sue, and then obtain the necessary redress from except for her and her attorneys time, will, and money. Those are precisely the kinds of decisions made by executive branch officials and can’t be delegated to private parties under Article II of the Constitution.

 

IV

Harty Court’s Reasoning

 

  1. Three things must be established for a plaintiff to have article III standing: 1) an injury in fact; 2) a causal connection between his injury and the conduct complained of; and 3) the injury will be addressed by a favorable judicial decision.
  2. Any injury must be particularized and concrete. Particularized injuries affect the plaintiff in a personal and individual way, while concrete injuries are physical, monetary, or cognizable intangible harms traditionally recognized as providing a basis for a lawsuit in American courts.
  3. In TransUnion, the Supreme Court said that a plaintiff has standing to bring a claim for monetary damages following a statutory violation only when he or she can show a current or past harm beyond the statutory violation itself.
  4. TransUnion now makes clear that the material risk standards applies only with respect to injunctive relief and that in a suit for damages, mere risk of future harm, standing alone, cannot qualify as a concrete harm.
  5. Plaintiff does not allege anywhere in his complaint that he was using the website to arrange for future travel. In fact, he acknowledges that the review of the website was strictly done in his capacity as a tester and not as a prospective traveler seeking a wheelchair accessible hotel in West Point.
  6. Article III grants federal courts the power to redress harms that defendants caused plaintiff’s and not a freewheeling power to hold defendants accountable for legal infractions.
  7. Since the Plaintiff asserted no plans to visit West Point or the surrounding area, plaintiff cannot allege that his ability to travel was hampered by the website in a way that caused him concrete harm.
  8. Plaintiff’s request for injunctive relief fares no better because allegations that he intends to return to the website and utilize the website to reserve a guest room is not sufficiently imminent to create an injury in fact. Someday intentions, without any description of concrete plans, do not support a finding of actual or imminent injury per Article III.
  9. The informational injury claim fares no better because plaintiff has to allege downstream consequences of failing to receive the required information and has not done so. That is, plaintiff has to show that he has an interest in using the information beyond bringing the lawsuit.
  10. Plaintiff’s complaint does not specify how the website violated ADA regulations or how those alleged violation discriminated against disabled people.
  11. Even if the ADA labeled all violations of the ADA and its implementing regulations that discrimination, which it doesn’t do, TransUnion makes clear that a statutory violation alone is no longer sufficient for Article III standing.
  12. Dismissing a case with prejudice is an entirely different matter than dismissing a case without prejudice without leave to amend. The court was perfectly correct in dismissing the case without prejudice denying leave to amend rather than dismissing the case with prejudice.
  13. In a footnote, the court notes that while testers can have standing, even testers have to show that they suffered an Article III injury in fact.

 

V

Can TransUnion Be Reconciled?/My Thoughts (§ added April 13, 2022)

 

Richard Hunt frequently blogs on standing. In one of his blog entries on this case, he takes the position that Havens Realty cannot be reconciled with TransUnion. Richard may very well have a point. However, I wanted to see if it was possible for Havens Realty to survive after TransUnion, and so here goes. Keep in mind that the Supreme Court rarely likes to explicitly overrule prior decisions. Instead, they overrule it without saying so. So, let’s see from looking at the reasoning of the opinion in Havens Realty, which was unanimous by the way, if we can distinguish Havens Realty. Two statements from the unanimous opinion and one statement from the concurring opinion are critical for seeing how Havens Realty might be distinguished from TransUnion and they are:

 

  1. A tester who has been the object of a misrepresentation made unlawful under §804(d) has suffered injury in precisely the form the statute was intended to guard against, and therefore has standing to maintain a claim for damages under the act’s provisions.
  2. Footnote 14: Congress’ decision to confer a broad right of truthful information concerning housing availability was undoubtedly influenced by congressional awareness that the intentional provision of misinformation offered a means of maintaining segregated housing. Various witnesses testifying before Congress recounted incidents in which black persons seeking housing were falsely informed that housing was not available.
  3. Justice Powell, concurring: distinct and palpable injury remains a minimal constitutional requirement for standing in a federal court.
  4. My thoughts: There are ways for Havens Realty to still be good law even after TransUnion. The first way is to find that a hotel website  ADA tester does not have standing while a Fair Housing Act tester does is to say that the Fair Housing Act contains an explicit statutory provision whereas the ADA does not. The hotel disclosure rules are in the title III final implementing regulations and are not statutory. Second, distinct and palpable injury still remains the minimum standard. Third, title III of the ADA does not allow for damages. So therefore, emotional distress of the kind faced by a tester is not sufficient to justify standing. Finally, even if Cummings winds up holding that emotional distress damages are available under §504 of the Rehabilitation Act, that kind of emotional distress quite arguably differs from the emotional distress suffered by a tester who willingly brings a lawsuit upon themselves.

 

VI

Thoughts/Takeaways

 

  1. There is clearly a circuit court split that cannot be reconciled. I fully expect this issue to come before the Supreme Court, perhaps from Arpan seeking review. It will be interesting to see how the Supreme Court reconciles tester standing with tester standing under the ADA and its recent jurisprudence with respect to standing. If it does go to the Supreme Court, I would expect Laufer to lose with the only question being how and what it means for persons with disabilities in the future.
  2. Richard Hunt blogged on this as well, here, and I commend it to your reading. He and I have been back channeling. An argument that he makes is that title III of the ADA simply does not allow for damages of any kind. So, how could stigmatic injury be sufficient for standing when the ADA itself does not allow for damages for that kind of injury when it comes to title III. My question back to him was the Supreme Court is likely to allow for emotional distress damages under §504 of the Rehabilitation Act in Cummings, discussed here, and whether that would change the analysis. His response was that it certainly moves things closer to justifying standing for §504 cases but is the kind of injury suffered by a tester the same kind of emotional distress suffered by someone personally impacted by the discrimination in a situation not involving a testing paradigm, i.e. a tester without more-a demonstrated desire to take advantage of the goods and services of a place of public accommodation- is arguably not personally denied equal treatment by the discriminatory conduct. After all, a tester as Judge Carnes noted in his concurring opinion, willingly invites a lawsuit. Also, allowing for emotional distress damages in §504 cases does not affect the title III remedies paradigm at all.
  3. We discussed TransUnion previously, as noted above, one thing that struck me as strange about its paradigm was basic separation of powers principles. That is, the legislature makes the law, the judiciary interprets it, and the executive branch enforces it. So, having independent review of standing above and beyond a statutory violation seems to cross into legislative nullification, or being a super legislature, in a way.
  4. Tester standing is perfectly okay under the Fair Housing Act, why isn’t it okay under title III of the ADA? (but see V).
  5. The back-and-forth I have been having with Richard Hunt makes a great deal of sense. It is hard to understand how emotional injury can justify standing if it isn’t the kind of relief that you can get from a lawsuit.
  6. With respect informational injury, what downstream consequences are sufficient to justify standing remains to be worked out.
  7. Judge Newsom’s argument about how testers and particularly serial plaintiffs set up a violation of Article II of the U.S. Constitution is one that he has talked about before and will be interesting to see if any courts take him up on that argument.
  8. Not every final implementing regulation allows for a private cause of action. It depends upon how close that final regulation is to the actual statute. Here, it isn’t the ADA that requires disclosures by the hotel, rather it is the final implementing regulations for title III of the ADA that requires the disclosures.
  9. Transunion was a 5-4 decision. Soon to be Justice Brown-Jackson will be replacing Justice Breyer shortly. It will be interesting to see how TransUnion plays out depending upon its context.
  10. When I was back channeling with Richard Hunt, he came up with some interesting ideas as to how to stop this massive serial litigation over internet accessibility but yet get accessibility for people with disabilities. His ideas included: A)Websites created after x date must meet WCAG 2.1 AA; B). Websites created before x date must be brought into compliance with WCAG 2.1 AA within 24 months to the extent it is readily achievable; C). All websites must meet WCAG 2.1AA in 48 months; D).DOJ require that website vendors sell accessible websites except for items under end user control. WordPress, Tumblr, and others would be treated as operators of websites they host, which would incentivize them to create accessible websites; E). Website owners would be permitted to sue 3rd party website operators for indemnity in any lawsuit brought against the owner. Once again, that incentivizes the party with sufficient expertise and control to make the website accessible;
  11. All of Richard’s ideas are very good ideas (§10(E) might require legislation). I would add that there should also be a provision that WCAG compliance should not trump meaningful accessibility.
  12. Prof. Emeritus of Nova Southeastern Law School, Michael Masinter, pointed out to me the reason for the confusion of how Judge Newsom actually writes the opinion for the court as well as a concurrence, which is a bit unusual. Prof. Masinter pointed out that Judge Newsom had no other choice but to do it that way because he can’t challenge Supreme Court paradigms in a majority opinion/opinion for the court. He can only challenge it through a concurrence. Thanks you!! Prof. Masinter.

 

 

 

 

 

 

 

 

 

 

 

Before getting started on the blog entry of the day, I do want to give a shout out to CODA, which won a best supporting actor, a best adapted screenplay, and best picture at the Academy Awards. As a small d deaf proud person in a deaf and hoh proud (daughter also wears hearing aids), household, I am beyond thrilled. I hope it means more persons with disabilities actually get a chance to be a part of the industry both in front of the camera and behind it and that more persons with disabilities get a chance to play roles portraying persons with disabilities.

 

The case of the day is one we have blogged on twice already. The case is Cushing v. Packard, which we discussed here and here. If you recall from that discussion, the district court decided that legislative immunity trumps everything. A panel of the First Circuit decided that was not the case. It was then heard en banc and decided, here, by the First Circuit (just five judges), and the majority opinion says that legislative immunity does trump everything. Since we have blogged on this case already twice before, I felt compelled to blog on this decision as well. As usual, the blog entry is divided into categories and they are: Judge Barron’s majority opinion; Judge Thompson’s dissenting opinion; and thoughts/takeaways. The decision was 3-2 with Judges Barron, Howard, and Lynch in the majority and Judges Thompson and Kayatta dissenting. The question before the court was whether title II of the ADA or §504 Rehabilitation Act authorizes a federal court to resolve the dispute among members of the state legislative body about whether voting on bills may be done remotely rather than in person.

 

I

Judge Barron’s Majority Opinion Holding That Legislative Immunity Trumps Just about Everything

 

  1. The privilege of legislators to be prevented from being sued is to enable and encourage a representative of the public to discharge a public trust with firmness and success. That is, the reason to keep government officials immune from deterrence to the uninhibited discharge of their legislative duties if not for their private indulgences but for the public good.
  2. Legislative immunity can be asserted against claims seeking only declaratory or prospective relief as well as damages because it exists to protect those engaged in legislative activities from the burdens of defending against the suit and not merely being held liable in one.
  3. Plaintiffs complaint clearly sought redress from the Speaker of the House and not the state. Also, for a variety of reasons, the Speaker of the House cannot be equated with the state. These reasons include: 1) a suit brought against a state officer in their official capacity is not the same thing as a suit against the state; 2) the complaint itself did not go after the state but only the Speaker of the House; 3) suits against officers in their official capacity are not the same as suits against the state because a suit against the state implicates 11th amendment sovereign immunity while official capacity suits do not; and 4) just because title II of the ADA covers public entities that does not transform this case into a suit against the state.
  4. The Supreme Court has held that legislative immunity can be asserted as a defense in an official capacity suit.
  5. While the Supreme Court has talked about municipal corporations not having available to it immunity available to local officials under §1983, they have never reached a similar conclusion with respect to suits against states or against state agents in their official capacities.
  6. That the legislature is covered by §504 of the Rehabilitation Act does not transform the case into a suit against the state either.
  7. While a legislative body appears to be a title II entity, it still gets the ability to assert legislative immunity.
  8. If Congress wanted to abrogate legislative immunity it could have explicitly done so. Just because it explicitly abrogated sovereign immunity in the ADA does not mean that it intended to abrogate legislative immunity. You need explicit abrogation wording for either or both. That is, common law principles of legislative immunity are incorporated into the judicial system and they should not be abrogated absent clear legislative intent to do so. Any general language that might be found in the statute suggesting that legislative immunity is abrogated is simply not good enough; it has to be explicit.
  9. The ADA makes no express reference to legislatures or legislators.
  10. Title II of the ADA does not indicate any intent by Congress to deal with these subtle considerations of the mixture of legislative or executive duties with the political facts of life.
  11. While plaintiffs claim no legislative act is involved, voting is a legislative act.
  12. While legislative immunity does not attach to the activities that are merely casually or tangentially related to legislative affairs, determinations about the procedure governing the means by which House members may cast votes are not so easily characterized that way. Further, the injunctive relief plaintiffs seek is relief that must run against a state legislator directly to be effective.
  13. The scope of legislative immunity is not dependent upon immunity that a particular state itself recognizes under its own law.
  14. Just because a statutory violation is involved, that does not mean it rises to the extraordinary circumstances necessary for the exception to legislative immunity to apply.
  15. The challenged conduct does not on its face target any class of legislators because it involves adhering to existing rules rather than making new ones.
  16. The extraordinary circumstances test for getting around legislative immunity has to be set at a high level because otherwise you may get federal judges improperly intruding into internal state legislative affairs. You also will get partisan battles whereby partisan state legislators improperly enlist federal judges to participate in them.
  17. Congress is better suited to explicitly waive legislative immunity than are the courts to do it on a piece by piece basis.

 

II

John Thompson’s Dissenting Opinion

 

  1. The majority opinion effectively disenfranchises thousands of New Hampshire residents simply because the representatives are persons with disabilities.
  2. The majority opinion immunizes any legislative role that does not on its face target any class of legislators, which is a standard so broad as to immunize race and religious-based discrimination as well.
  3. The majority opinion opens the floodgates to potential abuse and spells a recipe for disaster in the future.
  4. The speech or debate clause in the Constitution was intended to be for the benefit of the people and not their representatives.
  5. While legislative immunity was necessary for the separation of powers, the true driving goal was representation of the public.
  6. Early courts acknowledged that the people were careful in providing privileges to their legislators that would not unreasonably prejudice the rights of private citizens.
  7. Modern courts have also recognized that legislative immunity is not a personal privilege, i.e. not directed to the benefit of the legislators themselves.
  8. The purpose of legislative immunity is not to prevent judicial review of legislative actions but to ensure that legislators are not distracted from or hindered in the performance of their legislative task by being called into court to defend their actions.
  9. The Supreme Court has never addressed a case where it held that the extraordinary character exception to legislative immunity applies. It has said that the clause should not be extended so as to privilege illegal or unconstitutional conduct beyond that essential to foreclosing executive control of legislative speech or debate and associated matters, such as voting and committee reports and proceedings.
  10. It is contradictory to think that legislative immunity can protect some legislators decisions to effectively preclude other legislators from discharging their duties. The majority opinion leaves some people without their voice in representative government.
  11. What benefit do the people gain in immunizing their own disenfranchisement?
  12. The removal of a representative from his or her official duties in the face of an arrest, process, or subpoena, and the resulting loss of the voice for those he or she represents is an evil admitting of no comparison.
  13. The Supreme Court has never addressed any case in which a legislature has sought to exclude legislators based upon federal statutory really protected characteristics.
  14. In a footnote, the dissenting judge says that the legislative acts involved here has only one cause behind them, namely discrimination against a person’s statutorily protected disability. That is a far cry from removing a legislator because of nefarious activities jeopardizing the public trust in the office.
  15. At oral argument, the State admitted that if the state legislature excluded a legislator on racial or other clearly unconstitutional grounds, the federal or state judiciary would be justified in testing the exclusion by federal constitutional standards. That was a correct position taken at oral argument because the consequences of not conceding at least some level judicial review to the exclusion of a duly elected representative are staggering. Such a situation would permit legislative immunity, which is designed to safeguard representative democracy, to be weaponized against the representation it is meant to support.
  16. While the majority opinion essentially says that discrimination on the basis of disability is inconsequential, Congress certainly disagrees: 1) Congress enacted the ADA to provide a clear and comprehensive national mandate for the elimination of discrimination against persons with disabilities; 2) the ADA came in response to Congress’s finding that many people with physical or mental disabilities have been precluded from participating in all aspects of society because of discrimination on the basis of their disability; 3) persons with disabilities as a group occupy inferior status in society; 4) Congress found that individuals with disability continually encounter various forms of discrimination, including the discriminatory effects of overprotective rules and policies, failure to make modification to existing facilities and practices, exclusionary qualification standards and criteria, segregation, and relegation to lesser services, program, activity, benefits, jobs, or other opportunities.
  17. The majority opinion says that legislative rules subverting the ADA and discriminating against the disabled are simply not extraordinary enough even though: 1) Congress explicitly found that people with disabilities were systematically discriminated against and enacted a law meant to put those individuals on equal footing; 2) Congress thinks that discrimination is a serious and pervasive social problem; and 3) Congress passed the ADA with a seeming intent to reject the Supreme Court’s refusal to consider disability as a suspect classification akin to race (the dissent notes in a footnote that the discrete and insular language that originally appeared in the ADA was taken out of the amendments. However, the dissent correctly points out that the reason the insular and discrete finding was taken out was because the courts were using it to narrow the scope of the ADA rather than expand it).
  18. The Supreme Court has repeatedly expressed a skeptical eye towards applying legislative immunity to legislative actions that effectively remove certain constituents representative power in the government.
  19. The logistical issues claimed by the Speaker of the House have been a moving target and don’t make any sense. So, there is no grave legislative concern in pushing the scale in favor of legislators with disabilities being able to fulfill their duties and allowing them to serve the people who elected them.
  20. It is extraordinary to remove a legislator from representing the people who elected them.
  21. Plaintiffs never waived the extraordinary character/circumstances argument.
  22. The First Circuit has previously said that a legislature that votes to allow access to a chambers to members of only one race or two followers of one religion might veer into the orbit of the extraordinary character exception and disability should be treated no differently.
  23. The court opened the floodgates to a host of rules designed to oust various subsets of legislators based on a host of protected characteristics just so long as other legislators are clever enough to craft them in an ostensibly neutral way. Such rules include possibly:

 

  • A rule prohibiting the use of any electronic devices on the voting floor, but a member needs a hearing aid;
  • A rule that all members must stand to address the legislative body, but one of the members is wheelchair bound;
  • A rule prohibiting service animals from entering the floor during a session, but a member requires one;
  • A rule prohibiting a sign-language interpreter from entering the floor during a session of the body, but a member requires an interpreter.
  • A rule prohibiting a representative from wearing any headwear,27 but certain members adhere to a religion that requires doing so28;
  • A rule prohibiting facial hair, but certain members’ religions prohibit them from shaving;
  • A rule requiring that all sessions be held on Saturday mornings, but some members are Jewish and observe Shabbat.

According to the majority, absolute legislative immunity would apply in all of the situations because none of these rules take aim at any class of legislators.

 

  1. The distinction between adhering to existing rules rather than making new rules makes absolutely no sense because it fails to explain why the court should turn a blind eye to discrimination simply because it is based upon an established practice within a legislative chamber. Such a rule also fails to explain how the adherence to a pre-existing rule somehow lessens the potential for nefarious intent compared to a choice to enact the new rule.
  2. According to the majority opinion, representatives in the United States House of the Muslim faith would have no recourse when it came to wearing a religious headscarf because the U.S. House had a rule in place to disallow head coverings on the house floor. Similarly, the current New Hampshire House Rules requires a member to rise from their seat in order to speak and debate, make a motion, or deliver any matter to the House. Immunizing these effective ousters of representatives flies in the face of the entire purpose of legislative immunity.
  3. At oral argument, the Speaker said that challenges to hearing aids and service animal hypotheticals would be barred by absolute legislative immunity and the majority agrees.
  4. It doesn’t require, “Walt Disney level imagination” (the term actually used by Judge Thompson), for a legislature to come up with random reasons that would attach any of these rules to the legislative process.
  5. The majority opinion very well dooms the next case where there is some suspicion of a facially neutral rule driven by abuse. It goes so far as to say that legislative immunity trumps everything and bars any suit based upon any facially neutral legislative rule regardless of its impact on a representative democracy.
  6. The majority opinion gives carte blanche to legislatures to strategically silence legislative opponent and effectively disenfranchise their constituents so long that they can conjure up some facially neutral rationale for the rule. Such an opinion is at the expense of legislators with disabilities as well as at the expense of their constituents who elected them to serve.

 

III

 

Thoughts/Takeaways

 

  1. As a person with a disability and as a person dedicated to helping others understand the rights of people with disabilities, my personal opinion is that this decision goes too far and should be appealed to the United States Supreme Court. Even with the configuration of the United States Supreme Court as it is, I still believe that Representative Cushing has a decent chance of winning at the Supreme Court. Judge Thompson essentially wrote the brief for the plaintiffs.
  2. Look for the majority’s arguments to be made with respect to judicial immunity of state judges as well. It would be strange that judges charged with interpreting the law and getting it right would be free from any liability whatsoever should they themselves violate the rights of a person with a protected characteristic. The majority opinion suggest that is very well the case for both legislators and state judges (it isn’t a reach to see how the majority opinion easily applies to the actions of state judges).
  3. Legislative immunity applies to both suits for damages and for declaratory and injunctive relief, which only raises the stakes involved with this decision.
  4. I do understand how the majority argues that the State is not involved in official immunity suits, but that doesn’t mean that the dissent doesn’t have the better argument anyway.
  5. Some of the arguments made by Judge Thompson implicitly address arguments often seen in standing cases, such as this one decided by the 11th Circuit on March 29, 2022, which I may very well discuss in a subsequent blog entry and strongly suspect that Richard Hunt will discuss in one of his blog entries.
  6. I agree with Judge Thompson that an existing rule v. a new rule distinction makes little sense.
  7. Regardless of legislative immunity, we now see partisan legislators inviting federal judiciary intervention in all kinds of disputes. So, I am not sure that particular argument of the majority opinion withstands deeper analysis.
  8. Is what the Speaker did involve legislative acts, i.e. only tangentially related to legislating? The answer to that question is far from clear in my view.
  9. The ADA clearly applies to disparate impact. It is a far closer question whether the Rehabilitation Act applies to disparate impact.

Today’s blog entry last week’s guidance issued by the DOJ on web accessibility and the ADA. That guidance can be found here. This blog entry does have categories but not the typical ones. The categories are highlights of guidance, and thoughts/takeaways. I can’t see how the reader is going to want to do anything but read the whole thing.

 

I

Highlights

 

  1. Common examples of website accessibility barriers include: poor color contrast; use of color alone to give information; lack of text alternatives on images; lack of captioning on video; inaccessible online forms; and mouse only navigation. This list is not exclusive.
  2. Many state and local governmental services, program, and activities are now being offered on the web. Since a website with inaccessible features limits the ability of people with disabilities to access a public entity’s program, services, and activities through that website, the DOJ has consistently taken the position that the ADA’s requirements apply to all the services, program, or activities of state and local governments, including those offered on the web.
  3. A website with inaccessible features can limit the ability of people with disabilities to access a public accommodation’s goods, services, and privileges available through that website. Accordingly, DOJ has consistently taken the position that the ADA’s requirements apply to all the goods, services, privileges, or activities offered by public accommodations, including those offered on the web.
  4. Automated accessibility checkers and overlays identifying or fixing problems with a website can be helpful tools, but they need to be used carefully.
  5. Businesses and state and local governments have flexibility in how they comply with the ADA’s general requirements of nondiscrimination and effective communication. But they must comply with the ADA’s requirements.
  6. The Department of Justice does not have a regulation setting out detailed standards for Internet accessibility, but the Department’s longstanding interpretation of the general nondiscrimination and effective communication provisions applies to web accessibility.
  7. Businesses and state and local governments can currently choose how they will ensure that the programs, services, and goods they provide online are accessible to people with disabilities. Even though businesses and state and local governments have flexibility in how they comply with the ADA’s general requirements of nondiscrimination and effective communication, they still must ensure that the programs, services, and goods that they provide to the public—including those provided online—are accessible to people with disabilities.
  8. Existing technical standards provide helpful guidance concerning how to ensure accessibility of website features. These include the Web Content Accessibility Guidelines (WCAG)and the Section 508 Standards, which the federal government uses for its own websites.

 

II

Thoughts/Takeaways

 

  1. I view the document as being very unhelpful on a practical level (the discussion in the guidance is far too general to be of much use with respect to specific situations). The guidance does have the effect of making clear that state and local governments as well as companies all need to prioritize website accessibility and that the DOJ is watching. The guidance was actually posted in a beta format. So, the beta posting has me wondering if it isn’t some kind of trial balloon that might lead to reactivating the regulatory process.
  2. While this guidance doesn’t extend to mobile phones, which have a completely different interface and accessibility options and is regulated by the FCC, one has to figure that the FCC is watching as well.
  3. For the practical level, really getting into the weeds of accessibility and maximizing the chances of your website being accessible for a variety of individuals with disabilities, WCAG 2.1 et. ff. (3.0 is also on the horizon), is definitely the way to go. WCAG also explains the basic principles it uses rather than just gives examples of problem areas.
  4. There are no regulations out there with respect to Internet accessibility (they were pulled by the Trump administration), and so this guidance runs into the same issue with respect to its persuasive authority as the HUD animal circular does vis a vis Kisor v. Wilkie, which case we discussed here. That is, it is doubtful just how much persuasive authority this guidance is.
  5. Unusual to see voice dictation technology explicitly mentioned when it comes to website accessibility. I have been using voice dictation technology for a long time and it is great to see that acknowledgment.
  6. With respect to the title III discussion, I am very confused about how DOJ describes the entities covered by title III. As we know, those entities are “places of public accommodation,” and can be any of those listed in 42 U.S.C. §12181(7). A place of public accommodation is a term of art and not at all the same thing as a business open to the public. Even so, for reasons unknown the guidance refers to title III entities as businesses open to the public. It also refers to public accommodations but not to, “places of public accommodation,” which is the proper reference in the statute. In fact, the term “place of public accommodation,” appears nowhere in the guidance. Don’t get me wrong, a strong argument can be made then an Internet only facing business is a place of public accommodation per this blog entry, but that is not at all the same thing as changing the way title III entities are described (“place of public accommodation,” v. “business open to the public.)”
  7. The guidance seems to encourage using overlays. Readers of this blog entry know that overlays are a huge problem and frequently make things worse for persons with disabilities who use screen readers. That said, the guidance does say that nothing beats a manual check of the website as well as using automated tools in order to ensure maximum accessibility.
  8. The absence of regulatory standards means that everyone is free to choose how they ensure accessibility for persons with disabilities for anything they offer online. I used to think that was a benefit, but I am no longer so sure of that. As a preventive law matter, go with WCAG. Remember, the legal standard is meaningful accessibility. Also, remember the ADA requires an individualized analysis. So, beta testing any online offerings by having persons with a variety of disabilities try the site out is a really good idea.
  9. While there are no regulations dealing with Internet accessibility, there are most certainly regulations dealing with effective communications, which we have discussed many times and in a variety of different contexts, such as here and here. Don’t forget about effective communication obligations when dealing with Internet accessibility issues.

Today’s case of the day is a published decision from the Sixth Circuit decided March 8, 2022. The case is Blanchet v. Charter Communications, LLC, here, and it contains a couple of lessons for employers. First, outsourcing HR doesn’t mean that you lose responsibility for what happens if the third-party administrator doesn’t comply with federal law. Second, medical leave beyond FMLA leave can be a reasonable accommodation. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning that direct evidence applies to failure to accommodate claims; court’s reasoning that a genuine issue of material fact exists as to whether plaintiff was otherwise qualified; court’s reasoning that a genuine issue of material fact exists as to whether a reasonable accommodation was possible; Judge Kethledge’s dissent; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

In July of 2014, Charter Communications hired Kelly Blanchet as a Direct Sales Representative (“DSR”). As a DSR, Blanchet was responsible for selling Charter’s services door-to-door in residential neighborhoods. Blanchet quickly excelled in her role, receiving positive feedback from her closest supervisors. For example, her long-time supervisor, Ryan Quigley, identified her as “one of [his] top producers.” Quigley added that she “always was at work on time” and that he could “always depend on her being where she should be.” Another supervisor, Jayson Docter, stated that Blanchet was “probably the top person on [his] team every month.”

 

During Blanchet’s employment, she became pregnant and requested maternity leave. She applied for and received Charter’s standard maternity leave, short-term disability benefits, and Family and Medical Leave Act (FMLA) benefits until September 4, 2016. After giving birth to her child on July 11, 2016, Blanchet developed postpartum depression. As a result of her medical condition, Blanchet requested an accommodation of additional leave under the FMLA, which extended past her initial return-to-work date of September 4, 2016. At that time, Sedgwick, a third party who administered disability leave for Charter, was primarily responsible for all direct communications with employees who requested leave.

 

Charter made clear that Blanchet should not communicate directly with the company regarding disability leave, but should communicate with Sedgwick only. For example, Blanchet’s supervisor, Ryan Quigley, directed Blanchet to speak with Sedgwick only. Thus, Sedgwick was the only party that Blanchet communicated with to request leave for her disability.

 

Charter approved Blanchet’s requests for accommodations from September 4, 2016, to February 1, 2017. Blanchet first sought and was approved for FMLA leave until it was exhausted on September 30, 2016. Blanchet then obtained short-term disability leave until it was exhausted on January 8, 2017. Charter subsequently approved Blanchet for long-term disability leave through February 1, 2017, as an ADA accommodation.

 

During that time, Sedgwick had a pattern and custom of having paperwork approvals delayed long after the initial verbal approval. For example, Blanchet did not receive formal approval for her first request for disability leave until February 3, 2017, two days after she was expected to return to work.

On February 3, 2017, Sedgwick received a letter from Blanchet’s doctor which indicated that Blanchet’s return to work date was “unknown at this time” but that Charter should “expect April” as a timeframe for her to return to work. The letter also indicated that Blanchet “would not be capable of working from home or in any other setting due to her severe depression.”

 

On the same day, Blanchet contacted a Sedgwick representative because she was concerned that she had exhausted her FMLA benefits and did not know how that would impact her employment with the company. Blanchet requested a 60-day accommodation, from February 2017 through April 3, 2017, to allow herself time to adjust to her new medications. When Blanchet contacted the Sedgwick representative about this extension, the representative assured Blanchet “not to worry about [her] job” and that “they were [her] job protection.” After Blanchet followed up a few weeks later with a Sedgwick representative, she was assured that “all was ok,” the representative “knew of no reason this [application] would not be approved,” and that Blanchet should be “receiving [her] approval letter for April 3, 2017.”

 

Blanchet relied on that verbal approval and continued her treatment with the psychiatrist. On March 9, 2017, Blanchet received a termination letter from Charter stating that she was separated from the company “effective January 10, 2017.” Prior to receiving this termination letter, no representative from Charter or Sedgwick contacted her to explain that her request for an accommodation was not reasonable. In addition, no representative from either Charter or Sedgwick requested additional medical records or reached out to inquire for more details on Blanchet’s condition.

 

Ten days after Blanchet received her termination letter, she received an approval letter for her request for extended leave as an accommodation. Unbeknownst to Blanchet, Fred Contreras, the HR Manager of Charter, had been in conversation with Sedgwick after an inquiry requesting his response to Blanchet’s request for approval. On February 22, 2017, Sedgwick emailed Contreras, informing him that a request for a leave of absence was pending for Blanchet, but that it received notice of termination as of January 9, 2017. Sedgwick asked Charter to “review this employee[’]s employment status and confirm.” On March 2, 2017, Sedgwick “escalated” the response as it had not heard from Contreras regarding the request. By March 10, 2017, one day after Blanchet received the termination letter, Contreras sent an email to Sedgwick that he has “responded twice to the request for extension before” and it is “ok with [Charter].”

 

Blanchet subsequently sued Charter after having filed a discrimination charge with the Equal Employment Opportunity Commission. The first count of her operative complaint, entitled “Disability Discrimination,” alleges that “[t]he action of Defendant Charter Communications in firing Plaintiff Kelly Blanchet is in violation of The Americans with Disabilities Act of 1990.” Charter moved for summary judgment, and the district court granted the motion. Blanchet appealed.

 

II

Court’s Reasoning That Direct Evidence Applies in Failure to Accommodate Cases

 

  1. Since failure to accommodate is explicitly listed in the ADA’s definition of disability discrimination, claims based upon the employer’s failure to offer reasonable accommodation necessarily involve direct evidence.
  2. A plaintiff only needs to allege facts premised upon an employer’s failure to accommodate for a court to apply the direct evidence test at summary judgment.
  3. In Blanchet’s complaint, she alleged that she requested an extension of her leave as a workplace accommodation from October 1, 2016, through February 3, 2017. She also argued that Charter unlawfully fired her because her termination was effective during her approved accommodation. Since it is clear from the allegations that her claim was based upon Charter’s failure to accommodate, the claim necessarily involves direct evidence of discrimination under the ADA. Since plaintiff’s claims were so clearly made, Blanchet did not waive any argument that failure to accommodate claim necessarily involves direct evidence.
  4. Even if Blanchet did forfeit her argument that the direct evidence test should apply, this would be one of those exceptional situations when an application of the rule would produce a plain miscarriage of justice.
  5. While the court’s application of the indirect evidence standard was not correct, it did mean that the issue of the reasonableness of Blanchet’s requested leave was fully briefed before and considered by the district court because indirect evidence requires that a plaintiff show that she is qualified, i.e. can perform the essential functions of the job with or without reasonable accommodations. For that matter, the issue was fully briefed at the appellate court level as well.
  6. Under the direct evidence test, Blanchet bears the initial burden of establishing that: 1) she is a person with a disability; and 2) she is otherwise qualified for the position despite his or her disability. Charter then bears the burden of proving that a challenged criterion is essential, and therefore a business necessity, or that the proposed accommodation would impose an undue hardship upon the company.

 

III

Court’s Reasoning That a Genuine Issues of Material Fact Existed as to Whether Blanchet Is Otherwise Qualified

 

 

  1. For Blanchet to be otherwise qualified, she must show that she is otherwise qualified for the position despite her disability: 1) without accommodation from the employer; 2) with an alleged essential job requirement eliminated; or 3) with a proposed reasonable accommodation.
  2. When it comes to an employee’s proposed accommodation of medical leave, it doesn’t do any good to examine her qualifications on the date of her termination because that would not indicate whether the employee is otherwise qualified with an accommodation.
  3. Employees requesting medical leave often cannot perform their jobs at the moment they request the medical leave because it is the medical leave that allows them time to recover from illnesses or medical procedures. Accepting such a rule would mean that an employee requesting medical leave could always be terminated if she were unable to work at the time of her request, which is not consistent with precedent holding that medical leave can constitute a reasonable accommodation under the ADA. In other words, the question becomes whether Blanchet would be otherwise qualified to perform her essential job functions with her proposed accommodationwhen she returned to work.
  4. Prior to her illness, Blanchet was a top producer, was always at work on time, and probably the top person on her team. At the time Blanchet requested her accommodation, Charter had no reason to conclude that her performance would deteriorate when she came back on her proposed return date.
  5. Blanchet was not requesting an accommodation that would permanently remove attendance as a requirement for her position. Instead, she was asking for an extension of medical leave as a temporary accommodation in the hope that she could fully fulfill the attendance requirement once her medical leave was over.
  6. Since a reasonable jury could find that Blanchet could have returned to work and attended her job after she recovered from her illness, a genuine dispute of material fact exists as to whether she was otherwise qualified for her position.

 

IV

Genuine Issues of Material Fact Exists as to Whether a Reasonable Accommodation was Possible

 

  1. Determining the reasonableness of a proposed accommodation is a question of fact.
  2. Once an employee meets her burden, the employer must then show an undue hardship or that the accommodation would eliminate an essential job requirement.
  3. Medical leave as an accommodation is not a novel concept (the court actually cited to cases going back to 1986).
  4. Charter itself considered the proposed accommodation reasonable. Blanchet testified that the third-party administrator told her that it was in communication with her employer and the new HR representative and that she would shortly be receiving her approval letter. Further, a senior HR official at Charter stated that the type of accommodation she was seeking could be possible for a Charter employee. That such a leave was possible was confirmed by the record when the third-party administrator administrator contacted a Charter employee regarding Blanchet’s request for extended leave on March 10, 2017, before she receives her termination letter but after she was effectively terminated. Finally, an employee of Charter confirmed that he responded twice to her request for an extension before and that it was okay with Charter, and Charter followed up 10 days after she received a termination letter with an approval for her extended accommodation.
  5. A jury could conclude from this that Charter considered the leave reasonable and fired the plaintiff anyway. It’s fatal administrative mistakes and lack of clarity regarding Blanchet’s termination date raises genuine disputes of material fact as to whether reasonable accommodation was possible.
  6. Blanchet requested approval from Charter before taking any leave, requested leave for specifified periods, and provided medical support for each of her absences in advance. Further, she did not have a history of absenteeism before she became pregnant and had excellent attendance. Blanchet’s physician also indicated that she was treating her with therapy and medications. So, a reasonable jury could find that Blanchet would recover from her illness within acceptable time.
  7. Blanchet believing that her leave was approved from the third-party administrator administrator and Charter’s representations, did not know that she had to credibly prove anything.
  8. When Blanchet received her termination letter in Marc 10, 2017, no one in the HR leadership at Charter or the HR’s third-party administrator contacted her to indicate that her request for an extended leave was unreasonable. Further, no one contacted her to request medical records or to inquire for further information about her current condition. Finally, when Blanchet contacted the third-party administrator to express concerns about her employment status and to communicate reason for the additional extension, she was told that there would be no reason her application would not be approved. So, it makes no sense for a court to require that a plaintiff provide an exact return date when an employer leads the plaintiff to believe she does not have to do so.
  9. Once an employee requests an accommodation, the employer has a duty to engage in the interactive process.
  10. Both parties have a duty to participate in good faith, and an employer is not participating in the interactive process in good faith if it determines what accommodations it is willing to offer before ever speaking with the employee. In this case, Charter never spoke directly with Blanchet, decided to fire her before even telling her that the accommodation was unreasonable, and led her to believe that her accommodation would be approved. Accordingly, Charter cannot use its failure to engage in the interactive process to argue that Blanchet’s proposed accommodation was unreasonable. This is especially the case when the evidence viewed most favorably to Blanchet shows that the request was reasonable enough for Charter to approve it.
  11. In a footnote, the court notes that while Blanchet did not independently allege an interactive process claim, Charter’s failure to engage in the interactive process is directly related to determining whether her proposed accommodation would reasonable.

 

V

Judge Kethledge Dissent

 

This dissent is very short. It basically echoes a Seventh Circuit case, which is a minority view and which we discussed here, saying that additional leave is not a reasonable accommodation except in very few cases. Here, the dissent said that additional leave is objectively unreasonable when employee has already received significant amount of leave and has demonstrated no clear prospect for recovery (Charter had already provided her seven months of paid disability leave and had extended her leave five times).

 

VI

Thoughts/Takeaways

 

  1. If you are going to outsource your HR function, you need to make sure that some kind of check is in the system so that decisions of the third-party administrator can be reviewed. After all, it is still your company on the hook.
  2. One of the things that I did when I was a General Counsel was insist that anybody thinking of being terminated needed to have it reviewed by in-house legal counsel first. Also, I made it clear that employment at will really didn’t mean much anymore with all the protected classes and that termination should be for cause with employment at will only being used on the margins. By taking both approaches, outside legal fees were reduced by 80%.
  3. The decision is published.
  4. In the Sixth Circuit, failure to accommodate claims go off on direct evidence. This case does a good job of explaining why the direct evidence v. indirect evidence distinction matters. As we have discussed previously, one court was ready to throw up its hands with respect to all the arguing that goes on over direct evidence v. indirect evidence. Instead, as we discussed here, the Seventh Circuit suggested you might look to, “convincing mosaic.”
  5. This is not the first time I have seen otherwise qualified talked about by a court in terms of a plaintiff could show that allege essential job requirement could be eliminated and still be otherwise qualified. I simply don’t get it. An employer does not have to modify or waive an essential job requirement. The only way this makes sense is if the court is saying that the essential job requirement that is alleged is not in fact essential.
  6. Otherwise qualified is no longer the term under the ADA, rather the term is, “qualified.” “Otherwise qualified,” is still the term used in the Rehabilitation Act. Regardless, the two terms have identical meanings.
  7. In evaluating medical leave, the question is whether the medical leave would allow the person to perform the essential functions of his or her job with or without reasonable accommodations at the point in time they return and not at the point in time they request leave.
  8. Medical leave is a reasonable accommodation but indefinite medical leave is not. This case illustrates that there can be lots of gray areas in between the two.
  9. In the Sixth Circuit, an interactive process claim is an independent cause of action, which is not always the case in every circuit.
  10. One wonders if the United States Supreme Court will not get involved as to when medical leave is a reasonable accommodation because the United States Court of Appeals are certainly all over the place on the question. Compare this blog entry with here and here for example.
  11. Interactive process, interactive process, interactive process! Also, don’t forget the do’s and don’ts of the interactive process, here.

Today’s blog entry deals with the situation where a person get Covid-19, goes through most of the quarantine period, and then is fired by the employer during the quarantine period despite the employer knowing that the person had Covid-19 symptoms. The case is Brown v. Roanoke Rehabilitation and Healthcare Center, here, decided by the Middle District of Alabama on February 22, 2022. As usual the blog entry is divided into categories and they are: facts; court’s reasoning that Covid-19 may be an actual disability; court’s reasoning that plaintiff sufficiently alleged that she was regarded as having a disability; and thoughts/takeaways. Of course, the reader is free to concentrate on any or all of the categories.

 

I

Facts

 

Plaintiff was employed as a certified nursing assistant September 16, 2019 until July 13, 2020. On June 29, 2020, plaintiff went to her physician to be tested for Covid-19 because she was suffering from severe weakness, fatigue, brain fog, high blood pressure, cough, difficulty breathing, fever, and swollen eyes. While she awaited her test results, her physician directed her to self isolate. Two days later, on July 1, 2020, Brown’s test results came back positive for Covid-19. She then provided her physician’s instructions and her positive Covid-19 test results to the defendants. At the time, plaintiff’s employer maintained a policy requiring a 14 day isolation period for any employee testing positive for Covid-19. So, plaintiff was to isolate until July 14, 2020. Despite that, plaintiff’s supervisor, called plaintiff on July 7, seven days into her 14 day isolation, and instructed her to report to work to be tested again for Covid-19. Plaintiff responded that she was still under isolation and that she continued to experience the same severe systems. On July 10, 2020, her employer contacted plaintiff again and repeated the instruction that she would report to work to take a Covid-19 test. Again, plaintiff told her employer that she was still suffering from Covid-19 symptoms. She then remained in isolation and did not report to work to take the Covid-19 test. The following day, plaintiff was contacted again for a third time. This time plaintiff was informed by her employer that if she did not return to work on July 13, 2020, the employer would consider her as having voluntarily quit. Plaintiff did not in fact return to work because she was still suffering from severe weakness, fatigue, brain fog, high blood pressure, cough, difficulty breathing, fever, and swollen eyes. Her employer terminated her that day, which was the 13th day of her 14 day isolation. The following day after her termination, plaintiff’s doctor retested her for Covid-19 and she was still positive. Plaintiff then filed suit suit, presumably after exhausting the EEOC administrative processes.

 

II

Court’s Reasoning That Covid-19 May be an Actual Disability

 

  1. To have an actual disability under the ADA, an individual must have a physical or mental impairment substantially limiting one or more major life activities.
  2. Major life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.
  3. Guidance jointly issued by the Department of Health and Human Services and the Department of Justice, which we previously discussed here, indicate that certain forms of Covid-19 may be considered a disability under the ADA. That guidance states that certain forms of Covid-19 can substantially limit major life activities of respiratory function, gastrointestinal function, and brain function, even months after being first infected.
  4. The EEOC has said in their guidance, which we have discussed here among other places, that persons with sufficiently severe impairment from Covid-19 may be covered even if those impairments are not long-term. While that guidance is neither determinative nor binding on a court, it is helpful in deciding the issue of whether Covid-19 can be a disability. That guidance informs that Covid-19 can be a disability so long as the condition is sufficiently severe to impair major life activities.
  5. Plaintiff’s symptoms included severe weakness, fatigue, brain fog, high blood pressure, cough, difficulty breathing, fever, and swollen eyes. Such symptoms could substantially limit any of many major life activities, such as: caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. Plaintiff’s amended complaint makes clear that the symptoms impacted her ability to breathe, concentrate, and work, all of which are statutorily recognized major life activities.
  6. The defense arguments that the typical nonsevere, short-term conditions associated with Covid-19 are a short-term condition not protected by the ADA are better dealt with at the summary judgment stage than they are at the motion to dismiss stage. It is possible that the plaintiff gets by the motion to dismiss but loses at the summary judgment stage.

 

III
Court’s Reasoning That Plaintiff Alleged Sufficient Facts that She Was Regarded as Having a Disability

 

  1. The ADA does not allow for reasonable accommodations for regarded as claims. So, the failure to accommodate claim gets dismissed because it is hooked into the regarded as claim.
  2. Discriminatory discharge claims can be based on the employer’s perception that an employee has a disability.
  3. Under the 2008 amendment to the ADA, an individual is regarded as disabled when she is perceived as having a physical or mental impairment, regardless of whether the impairment actually exists or is perceived to limit a major life activity.
  4. An individual cannot be regarded as having such an impairment if the impairment is transitory and minor.
  5. A transitory impairment is an impairment with an actual or expected duration of six months or less.
  6. What matters for the regarded as theory is whether the employer perceived the plaintiff as having a physical or mental impairment and not whether the plaintiff was actually impaired.
  7. Many lower courts have found that the transitory and minor exception is a defense that the defendant bears the burden of establishing, rather than an element of the plaintiff’s pleading requirement. So, a plaintiff is not required to plead facts plausibly suggesting that the transitory and minor defense fails.
  8. Since transitory and minor is a defense, plaintiff’s claim can only be dismissed if it is apparent from the face of the complaint that her Covid-19 case was transitory and minor, and plaintiff’s allegations of severe symptoms certainly do not make it apparent that her Covid-19 case was either transitory or minor.
  9. Transitory and minor means exactly that. That is, the condition must be both transitory and minor.
  10. The severity of an impairment is an objective and factual inquiry. Plaintiff alleges she told the defendants that she was suffering from a severe and symptom laden case of a Covid-19 and those allegations are sufficient to allege that her impairments were not minor. In any event, whether her impairment was minor, is better addressed at the motion for summary judgment stage than at the motion to dismiss stage, especially since, as the court noted in a footnote, the physical impact of Covid-19 differ widely from person to person. After all, individuals diagnosed with Covid-19 may suffer from no symptoms at all or only minor symptoms on a short-term basis. On the other hand, individuals have been noted to suffer from extremely severe symptoms that have required months long hospitalization and even death. Then you have long-haul Covid-19, which can happen regardless of the symptoms a person has when they get Covid-19. The category that plaintiff falls into is a fact driven inquiry not appropriate in a motion to dismiss.
  11. Plaintiff’s allegations, which only require a short and plain statement of the claim, are more than sufficient in this case could get by a motion to dismiss.

 

IV

Thoughts/Takeaways

 

  1. For a regarded as claim, all a plaintiff has to show is a physical or mental impairment.
  2. Interesting that the court did not pursue how a major life activity also includes bodily functions. They did mention it a bit implicitly but they didn’t address it head-on.
  3. The court cited favorably to both EEOC guidances as well as the joint Department of Health and Human Services and DOJ guidance that we have previously discussed, here, for example, and here.
  4. For the regarded as exception to apply, it has to be BOTH transitory and minor.
  5. Regarded as claims do not have reasonable accommodation requirements with them.
  6. The transitory and minor exception is a defense that the defendant has the burden of establishing rather than an element of plaintiff’s pleading requirements.
  7. Whether a condition is minor is an objective and factual inquiry not normally suitable on a motion to dismiss.
  8. While theoretically a short and plain statement of the claim are all that is required, I have found that when it comes to disability discrimination cases, you want to allege sufficient enough facts to put a reasonable person on notice as to exactly what is going on. Notice pleading may be theoretically still in play, but as a practical matter, a plaintiff alleging disability discrimination makes a mistake by going about it that way.
  9. It is a bad move for a defendant to terminate an employee during a quarantine period demanded by the CDC.

With the nomination of Ketanji Brown Jackson by Pres. Biden to the United States Supreme Court, it is time for me to do my analysis of the nominee’s decisions pertaining to disability rights.  My search was done in casetext and it was, “judge/4 Brown-Jackson and ADA or 501 or 504 and disability. I also did an IDEA search for good measure. I did not see any decisions involving the Air Carrier Access Act or the Fair Housing Act with respect to disability. When it came to the ADA related decisions, I wound up reading about 23 cases and distilled it down to a select few to blog upon those here. I also saw that she had written opinions on about a dozen or so IDEA cases. I will leave the IDEA cases to a special education attorney and not focus on that here. This blog entry is going to be a bit different in terms of how it is laid out. I will discuss what each case is about briefly and then discuss the key holdings from her opinion in that case. In the other section, I will give my thoughts/takeaways. I was reading in the Wall Street Journal today that the Republicans are not expected to throw a monkey wrench into this and that the Democrats will hold firm. Even so, it is interesting to see what her views are with respect to the rights of people with disabilities.

 

I

Cases

 

Brooks v. Goodwill

 

This is a pretty straightforward case where the plaintiff failed to file a claim within 90 days after receiving a right to sue. Understandably, Judge Jackson grants the motion to dismiss.

 

Southerland v. SOC, LLC

 

This is also a straightforward case where she holds that the venue was improper for an ADA/title VII suit.

 

Pierce v. District of Columbia

 

This particular decision has been featured quite a bit in the press. It involves a culturally deaf individual who was not accommodated while in prison despite the prison knowing that he was culturally deaf and despite the culturally deaf individual asking for an ASL interpreter. Judge Jackson was having none of it. In particular, the following bears discussing:

 

  1. Title II of the ADA essentially requires an interactive process (see §6 of this section).
  2. Disability discrimination occurred as a matter of law because the district’s employees and contractors did nothing to evaluate the plaintiff’s need for accommodation despite their knowledge that he was disabled.
  3. There must be a typo in the decision because on page 266 of the opinion “accommodations,” and “modifications,” should be in each other’s place. That is, it is “modifications,” that is §504 and title II parlance and “accommodation,” that is title I parlance and not the other way around as it exists in the opinion.
  4. Deliberate indifference occurs where the prison took an obviously disabled inmate into custody without undertaking any evaluation of his accommodation requirements, and when he later requested aid, either rebuffed his inquiries entirely or provided him with whatever auxiliary tools it had on hand.
  5. Failure of prison staff to conduct an informed assessment of the abilities and accommodation needs of a new inmate who is obviously disabled is intentional discrimination and deliberate indifference.
  6. Prison officials have an affirmative duty to assess the potential accommodation needs of inmates with known disabilities when taken into custody and to provide the accommodations that are necessary for those inmates to access the prison’s programs and services, without regards to whether or not the disabled individual has made a specific request for accommodation and without relying solely on the assumptions of prison officials regarding that individual’s needs.
  7. The district’s knowing failure to evaluate plaintiff’s need for accommodation and provide auxiliary aids easily satisfies a deliberate indifference standard.

 

Equal Rights Center v. Uber Techs.

 

This is a decision dealing with Uber and whether they are accessible to persons with disabilities. It also discusses whether the person with the disability needed to download the app in order to bring a claim. We have discussed this kind of case before, such as here. Here are some of the critical statements made in this case:

 

  1. Deterrence can get a person with a disability standing. All the person with a disability has to show to get standing is that they were deterred from patronizing or visiting that accommodation.
  2. The Seventh Circuit’s view that heightened pleading requirements are somehow required does not wash. The only question is whether a reasonable similarly situated person would be deterred from seeking to avail themselves of the defendant’s services. In a footnote, she notes that the Seventh Circuit decision also makes no sense because by forcing a person with a disability to download the app, you are forcing the person with disability into arbitration. This set of circumstances is manifestly (her words), inconsistent with Congress’s express intent to allow plaintiff to challenge public accommodations that are not in compliance with the ADA even if they do not personally encounter the discriminatory barriers themselves.
  3. Complaint sufficiently allege facts that Uber is a transportation entity subject to 42 U.S.C. §12184 and sufficient allegations existed to make the claim that Uber was primarily in the business of transporting people. That is, an entity can provide a public transportation service without actually conveying or transporting people itself.
  4. A specified public transportation service per the ADA includes a vehicle taking a person to any other location in the metropolitan area at a predetermined price.
  5. Under the District of Columbia code, the lack of a real physical space associated with the Uber app does not at all mean that Uber cannot plausibly be considered a place under the District of Columbia Human Rights Act. Further, the District of Columbia Human Rights Act can extend beyond brick-and-mortar buildings because the definition of a place of public accommodation expressly includes all public conveyances operated on land or water in the air.

 

Von Drasek v. Burwell

 

In this particular case a federal employee waited until the very last minute to let her employer know that she had a disability. That is, when she received notice that she was about to be separated from employment soon, she then filed her reasonable accommodation requests. Her employer was having none of it and claimed that the notification simply came too late. Judge Brown Jackson disagreed but nevertheless finds causation not present. This one is interesting, and I may have a dissenting view. Let’s explore below:

 

  1. Rehabilitation Act causation is according to 29 U.S.C. §794(a) is, “solely by reason of.” Therefore, motivating factor is out and but for is in. But for means the employer’s conduct “was the reason,” that the employer decided to act citing to Gross.
  2. A request for accommodation of a disability is timely if the institution is in a position to respond to the request.

 

I dissent: Readers of my blog entries will probably not be surprised to find out that with respect to the causation analysis in this decision, I respectfully dissent so to speak. First, federal employees are subject to §501 of the Rehabilitation Act. 29 U.S.C. §791(f) provides that the standards used to determine whether employment discrimination occurs shall be the standards applied under title I of the ADA of 1990. Title I of the ADA of 1990 is “on the basis of.” Second, I am aware that a line of cases exists saying that but for causation is essentially sole causation. However, Bostock, which we discussed here, has changed all of that so that but for, by reason of, and on the basis of now mean determining factor. To be fair to Judge Brown Jackson, Bostock was not decided at the time of this opinion. Even so, I just don’t follow the causation analysis because the plaintiff was a federal employee and therefore, §501 was in play and not §504.

 

Alford v. Providence Hospital

 

This is a very interesting case whereby a plaintiff filed a lawsuit alleging violations of the FMLA and the District of Columbia’s FMLA while her ADA claim was working its way through the EEOC. Once the EEOC gave a right to sue sometime later, she filed a separate ADA claim in federal courts. The defense said that res judicata prevented the separate ADA claim from going forward. Judge Brown Jackson agrees and the case gets thrown out on res judicata grounds. To Judge Brown Jackson the problem was the plaintiff could have done other things to prevent the problem from happening. For example, the plaintiff could have done any of three things: 1) filed the EEOC complaint, weight its outcome, and then file all the claim simultaneously in the same complaint in District Court; 2) file one administrative complaint and one complaint in federal court, then seek to stay the federal court proceedings pending the outcome of the EEOC proceedings; or 3) file both EEOC complaint in the federal district complaint, request the right to sue notice after 180 days, then seek to amend the federal complaint to include the additional claims.

 

Mitchell v. Pompeo

 

In this case, an asthmatic employee could not meet the physical requirements of the job. There wasn’t much dispute about that, but she did make clear that she wanted to work with the State Department somehow if possible. The State Department terminates her instead, and she sues under both the ADA and the Rehabilitation Act. Here are some of the salient points from that decision:

 

  1. The ADA does not apply to the federal government.
  2. Citing favorably to a decision saying that mandatory reassignment was in play for persons with disabilities, she said that an employee seeking reassignment to a vacant position is within the definition of a qualified individual with a disability if with or without reasonable accommodations, she can perform the essential functions of the employment position to which she seeks reassignment.
  3. A qualified individual is an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.
  4. When accommodation cannot be made in the employee’s current position, the federal employer must (italics of this word is in the actual opinion), consider the feasibility of reassigning the disabled employee to a vacant position.
  5. The State Department did not present any evidence to show that there was no available position that the plaintiff could have performed.
  6. A straightforward request is asking for continued employment is a sufficient request for accommodation.
  7. “It does not appear that State perform its duty of actually helping Mitchell [the plaintiff] to find another position, beyond just pointing her to job postings.”
  8. While there is no independent cause of action for failure to engage in the interactive process, not doing so is prima facie evidence that the employer is acting in bad faith.

 

II

 

Thoughts/Takeaways

 

  1. Unusual for a hearing Judge, which I presume she is, Judge Brown Jackson truly gets Deaf and deaf.
  2. Mandatory reassignment cases will make their way to the Supreme Court undoubtedly while she is still on the bench. Mitchell v. Pompeo gives a strong indication that she is likely to come down on the side of the Seventh Circuit or something very close to that rather than on the side of the 11th Circuit.
  3. One wonders if she will not revisit her view of causation with respect to federal employees once on the Supreme Court when the federal employee representatives points out that §501 of the Rehabilitation Act is a completely different animal than §504 Rehabilitation Act.
  4. Judge Brown Jackson is likely to be very receptive to review that title III of the ADA does not require a physical place, a view we discussed here.
  5. If I gleaned a judicial philosophy at all it would be that she appears to very much look to what is the purpose of the legislation and then will interpret provisions broadly in order to carry out that purpose. You see that in particular with Pierce and Equal Rights Center. You also see that in Von Drasek where she has a very broad notion of when accommodation request is timely.

Y’all may be wondering where my blog entry from last week went. I was absolutely slammed with client matters and could not get to it. I’ve got a moment now. So, this blog entry is going up at the beginning of this week. Before moving onto the blog entry of the day, there have been some interesting developments in the area of regulatory bodies and disability rights recently. First, the pandemic has raised the issue of whether persons with disabilities are being valued less when it comes to deciding on medical care when choices have to be made. The Federal Constitutional Court of Germany said that isn’t going to happen, here. Also, the Department of Health and Human Services recently put out a question and answer document, here, saying essentially the same thing. Finally, in other regulatory developments, DOJ added to its Common Questions about Covid-19 and the ADA document, here, a section dealing with hospitals and medical facilities excluding all visitors and a section on outside eating spaces at restaurants. For those in the ADA world all the time like myself, I did not find the DOJ information particularly surprising.

 

Turning to the blog entry of the day, it deals with the question of when and if a request for documentation pursuant to legitimate disability related inquiries goes too far. I have not seen a lot of case law in this area before. For current employees, the ADA prohibits medical exams/disability related inquiries unless they are job-related and consistent with business necessity. That limitation also serves to limit any further medical exam or disability related inquiry to those narrow issues. Title II and title III in their technical assistance memorandum also prohibit unnecessary inquiries. Even with all this, it can be difficult to figure out when a document request has gone too far. Cofffey v. Norfolk Southern Railway Company from the Fourth Circuit decided January 14, 2022, here, helps answer the question as to how far a document request can go. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning federal regulatory background; court’s reasoning that Norfolk Southern acted in accordance with its due diligence obligations because its inquiries were job-related and consistent with business necessity; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

As a locomotive engineer, he, plaintiff, was responsible for operating the train, and he had to perform such tasks as responding to hazards on the railroad tracks to prevent collision or derailment. The position required him to walk across uneven tracks and climb steps to board and deboard the train multiple times per shift. Locomotive engineers are subject to Federal Railroad Administration (FRA) regulations regarding alcohol and drug use.

In 2012, a train that Coffey was operating derailed. Shortly thereafter, a drug test revealed the presence of amphetamines in Coffey’s system. Coffey was permitted to continue working, but he was subject to follow-up drug testing for five years. In April 2016, one of these drug tests showed the presence of amphetamines and codeine. Coffey explained that he had prescriptions for both medications: the amphetamines were Adderall, which he took for Attention Deficit/Hyperactivity Disorder (ADHD), and the codeine was Tylenol #3, which he took for a back condition.

In response, Norfolk Southern requested that Coffey provide certain records relating to his medication usage within thirty days. The letter stated that Coffey’s treating physicians should address, among other things, Coffey’s diagnoses, significant symptoms, medication regimen and compliance with that regimen, medication side effects, awareness of other medications prescribed by other doctors, ability to safely perform essential job functions, and recommended work restrictions or accommodations. According to Coffey, he asked his doctors to send the records and he believed they followed through. Norfolk Southern denies having received any records within the thirty-day time frame.

Six weeks later, in June 2016, Coffey ruptured his Achilles tendon and took medical leave from Norfolk Southern. Norfolk Southern requested that when Coffey was ready to return to work, he provide medical information about his injury so that it could determine his fitness for service as an engineer. Coffey remained on medical leave from Norfolk Southern for approximately ten months, and in April 2017 his primary care physician cleared him to return to work. At that point, Norfolk Southern sent Coffey a follow-up letter seeking all the records it had previously requested regarding both his medication use and his injury. Coffey says that he repeatedly asked his doctors to provide the requested information to Norfolk Southern. Norfolk Southern repeatedly denied having received the records, and it sent two more letters demanding compliance within certain time frames. Coffey says that this became a recurring pattern where Norfolk Southern would demand records, Coffey would ask his doctor to send them, and Norfolk Southern would inform him that it had not received anything.

In June and July of 2017, Norfolk Southern eventually received certain records from Coffey. Those submissions included a two-sentence note from Coffey’s treating physician clearing him to work without restrictions after the injury; the results from a functional capacity evaluation completed some months prior; a one-page note from one of Coffey’s doctors verifying that he had a Tylenol #3 prescription; and a one-page note from another of Coffey’s doctors verifying that he had an Adderall prescription. However, Norfolk Southern was unsatisfied with the records it received, stating that they failed to include specifically requested information such as medication side effects or the physicians’ knowledge of other prescriptions. It therefore notified Coffey that he would be subject to a disciplinary hearing to be held on September 7, 2017. For that hearing, Coffey submitted approximately four hundred pages of medical records. Upon determining that the records produced still did not address much of the required information, Norfolk Southern terminated Coffey’s employment.

II

Court’s Reasoning Federal Regulatory Background

  1. Since the beginning of railroad transportation, courts have recognized that railroads present all kinds of danger to the community.
  2. The operation of railroads require the use of instruments and agencies attended with special risk and dangers, the proper management of which involves peculiar knowledge, training, skill and care. If that isn’t done, there can be serious ramifications including loss of human life or property, toxic environmental damage, and infinite litigation. It isn’t surprising that the term “train wreck,” is a shorthand for mishaps of all sorts.
  3. Railroad operators have a very strict responsibility for preventing damage.
  4. The railroad industry is regulated pervasively to ensure safety by both the federal and state governments.
  5. Locomotive engineers in particular are engaged in safety sensitive task because they discharge duties with such risk of injury to others that even a momentary lapse of attention can have disastrous consequences. Not surprisingly, the Supreme Court has upheld constitutional challenges to regulations requiring drug and alcohol testing of certain railroad employees, including engineers because of the great potential of human loss. The Supreme Court emphasized the great public interest in ensuring railway safety underlying those regulations.
  6. Engineers must be aware of whether there are items or obstructions on the track, such as branches, animals, or even pedestrians. They also have to slow down at certain points in the journey where a stop was not planned or respond to unexpected weather conditions. They have to ensure that all personnel are on board when departing the station. They have to navigate switches and intersection where cars cross the rails. Even with technology, the human element can never be removed entirely, so the need for sound judgment remains.
  7. Federal regulations say that no regulated employee may use or possess any controlled substance when the employee is on duty and subject to performing regulated service for railroad. Those regulations also say that an employee may not report for duty or remain on duty while under the influence of or impaired by any controlled substance.
  8. The regulations do allow for medications prescribed or authorized by a medical practitioner only under three conditions: 1) if a physician has made a good faith judgment with notice of the employee’s assigned duties and on the basis of the available medical history, that use of the substance by the employee at the prescribed or authorized dosage level is consistent with the safe performance of the employee’s duties; 2) if the employee uses the medication at the doses prescribed or authorized; and 3) if the employee is being treated by multiple physicians, at least one has been informed of all medications authorized or prescribed and has determined that use of the medications is consistent with the safe performance of the employee’s duties. Finally, amphetamines and coding are specifically listed as substances to which the regulations apply.
  9. The regulations also impose on railroads a duty to exercise due diligence to assure compliance by each regulated employee. So, Norfolk Southern was under an obligation to make further inquiries to ensure that plaintiff’s use of his medication complied with the applicable safety regulation. It also had to investigate whether plaintiff had valid prescriptions, whether he was using the medications as prescribed, whether the position thought he could safely perform his duties well on the medication, and whether at least one physician was aware of any other prescriptions and thought they could all be used safely together.

III

Court’s Reasoning Norfolk Southern Acted in Accordance with Due Diligence Obligations Because Its Inquiries Were Job-Related and Consistent with Business Necessity

  1. Job related and consistent with business necessity is an objective inquiry.
  2. Citing to Kroll, which we discussed here, the Fourth Circuit said that job related and consistent with business necessity standard is satisfied if the employer reasonably believes that an employee’s medical condition impaired his ability to perform the essential functions of the job or the employee poses a direct threat to himself or others.
  3. Business necessity must be based upon more than just mere expediency. That is, the employer must show that the asserted business necessity is vital to the business and that the request is no broader or more intrusive than necessary.
  4. Once plaintiff’s drug test revealed that he was using codeine and amphetamines, Norfolk Southern had an objective basis to believe that those substances could impact plaintiff’s ability to operate a train.
  5. EEOC’s enforcement guidance even says that certain employers may be able to demonstrate job-related and consistent with business necessity when it comes to requiring employees in positions affecting public safety to report when they are taking medication that may affect their ability to perform essential functions.
  6. Each of Norfolk Southern’s specific inquiries into plaintiff’s medication usage were related to plaintiff’s job. The information they sought was unquestionably consistent with the necessity of ensuring the safe operation of its trains. That the inquiries require plaintiff to provide ample record does not change the conclusion.
  7. Norfolk Southern, given its public safety responsibilities, was more than justified in my collecting enough information to permit an informed decision about whether it was safe for its employee to operate a train.
  8. The inquiries of Norfolk Southern were not only related to plaintiff’s job but were in fact required by federal regulations. Complying with legally binding federal regulations is by definition a business necessity. So, a court cannot read the ADA to subject railroad to substantial liability when attempting to obtain information required by federal regulation that is highly germane to public safety.
  9. The business necessity defense is not negated even though there may have been a better way for Norfolk Southern to get the information it needed other than the way it chose. That is, the employer does not have to show that the examination or inquiry is the only way of achieving a business necessity, instead the employer has to show that the examination or inquiry is a reasonably effective method of achieving it. So, Norfolk Southern’s request for plaintiff to submit his own medical records in response to specific queries was clearly a reasonably effective method of investigating medication use.
  10. Plaintiff’s response to Norfolk Southern’s inquiries with one-page letters was not sufficient to satisfy Norfolk Southern’s regulatory requirements, and plaintiff even recognize that the letters he submitted did not address the issues that Norfolk Southern had to address because of federal regulations.d
  11. In a footnote, the court said that improper medical inquiry claims under the ADA stand apart from general claims of discrimination and do not require the plaintiff to show that he has a disability. After all, it would make little sense to require an employee to demonstrate that he has a disability to prevent his employer from inquiring as to whether or not he has a disability.

IV

Thoughts/Takeaways

  1. This case does give useful guidance on when a documentation request goes too far. That said, it is very important to remember that pervasive final federal regulations played a critical role in the court’s decision.
  2. As a preventive law matter, any inquiries should be no broader nor more intrusive than necessary. The TAM’s for title I-III all have unnecessary inquiry prohibitions. See, EEOC title I Technical Assistance Memorandum, I-6.6; DOJ title II Technical Assistance Memorandum, II-3.5300; DOJ title III Technical Assistance Memorandum, III-4.1300 .If specific federal regulations are involved, an employer may have more leeway with respect to the amount of information requested. Even then, be sure to stick to the regulations closely with respect to the information requested.
  3. Kroll has been one of my go to decisions for years as readers of the blog know.
  4. Direct threat is a very high standard. See this blog entry for a discussion of direct threat.
  5. Business necessity is also a high standard as it must be vital to the business.
  6. It’s one thing to mandate reporting the medications, but don’t forget what you do with that information must also be consistent with the ADA. For example, you still have to ascertain whether the person is otherwise qualified, whether it be under title I or title II when you are dealing with an employer or with a nonfederal governmental entity.
  7. When it comes to medical exams and disability related inquiries, it is clear that it is a separate cause of action, and you do not have to have a disability to assert such a claim.