Before getting started on the blog entry of the week, the Atlanta Braves are world champions!! Our local school district is not going to have school tomorrow. It was senior skip day and the Atlanta Braves parade is tomorrow. So, the decision not to have school makes perfect sense. The community we live in is about 20 minutes directly east of the Atlanta capital building. The county we live in is also shutting down its school system for tomorrow as well. Congratulations to the Braves!

 

Also, CMS and OSHA have now released their interim final rules on Covid-19 vaccination. I am sure labor and employment and health law bloggers will be all over that. I don’t rule out commenting on either or both of those regulations in the future, but it is entirely possible that other bloggers will be very comprehensive about it. So, I will wait to see what develops there.

 

Today’s blog entry deals with the question of whether police officers and forces who do not understand the rights of people with disabilities can be held liable for interfering with their protected rights when a person with a disability with a service animal gets thrown out of the place of public accommodation. The case is Wilhelm v. City of Alexandria, decided by the United States District Court for the Western District of Louisiana on February 7, 2020, which can be found here. I have actually in another life been to Alexandria, Louisiana. A very nice town. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning granting summary judgment to defendants on ADA claims; and thoughts/takeaways. Of course, the reader is free to read any or all of the categories.

 

I

Facts

 

  1. At approximately 9:30 p.m. on July 22, 2017, Wilhelm and her fiancé Parker went to Buds N Suds, a bar in Alexandria, Louisiana to celebrate their engagement. ECF Nos. 17-2 at 1, 17-6 at 23-24.
  2. Wilhelm brought her dog, Viggo, with them. ECF Nos. 17-2 at 1, 1-2 at 1. Viggo is a very large eight-year-old Nebolish mastiff. ECF Nos. 17-2 at 1, 17-6 at 18-19.
  3. Shortly after they entered the bar, Buds N Suds’s security guard Mumford told Wilhelm she could not bring Viggo inside. ECF Nos. 17-2 at 1, 17-6 at 25, 17-7 at 2. Mumford was reportedly acting at the direction of Buds N Suds’s owner, Michael Barnhill (“Barnhill”), who did not want Viggo inside the bar because he was turning away customers and created a liability issue. ECF Nos. 17-2 at 1-2, 18.
  4. Wilhelm refused to leave and remained inside the bar with Parker and Viggo for approximately two hours. ECF Nos. 17-2 at 2, 17-6 at 25.
  5. Because Wilhelm refused to leave, Mumford called the Alexandria Police Department. ECF Nos. 17-2 at 2, 17-6 at 26. Before the police arrived, Wilhelm, Parker, and Viggo went outside. ECF Nos. 17-2 at 2, 17-6 at 27.
  6. Officers Helminger and Voorhies responded to the scene. Upon arrival, Helminger and Voorhies spoke to Mumford and Barnhill, who explained they wanted Wilhelm to leave. ECF Nos. 17-2 at 2, 17-4 at 1, 17-5 at 1, 19.
  7. The officers then went to speak to Wilhelm, who was seated outside on a picnic table with Viggo standing by her side. ECF Nos. 17-2 at 2, 19. Parker was standing nearby. Id.
  8. Wilhelm told the officers she felt she had the right to remain on the property with Viggo because he is her “service dog.” ECF Nos. 17-2 at 2-3, 19.
  9. Voorhies explained that Wilhelm was on private property and the owner wanted her to leave. ECF Nos. 17-2 at 3, 19. Wilhelm continued to argue her position. Id.
  10. Voorhies then explained to Wilhelm if she did not leave she would be arrested for “remaining after being forbidden.” ECF Nos. 17-2 at 3, 19.
  11. Voorhies also explained to Wilhelm if she felt she was being discriminated against by Buds N Suds, she had the right to get an attorney and pursue a civil matter against the bar. ECF Nos. 17-2 at 3, 19.
  12. Wilhelm, Parker, and Viggo finally complied and left the bar. ECF Nos. 17-2 at 3, 19.
  13. Throughout the encounter, the officers remained extremely calm and polite, even after being called “dumb.” ECF Nos. 17-2 at 3, 19.
  14. At no time did either officer use any force against Wilhelm, Parker, or Viggo. ECF Nos. 17-2 at 3, 18, 19.
  15. Viggo does not qualify as a “service animal” under the ADA. ECF Nos. 17-2 at 3, 17-9 at 2-25.
  16. No history existed between the plaintiff and the City of Alexandria with respect to ADA noncompliance issues in the past.
  17. Plaintiff also filed excessive force claims, which we are not going to discuss in this blog entry.

 

II

Court’s Reasoning Granting Summary Judgment to Defendants on ADA Claims

 

  1. In a footnote, the court noted that there is no individual liability under the ADA and parallel 42 U.S.C. §1983 claims are not allowed either.
  2. The Fifth Circuit has allowed title II claims in the specific context of police officers failing to reasonably accommodate the known limitations of persons with disabilities they detain.
  3. Since the ADA does not require clairvoyance, the burden is on the plaintiff to specifically identify the disability and resulting limitations, and to request an accommodation in direct and specific terms.
  4. The Fifth Circuit has also held that title II does not apply to an officer’s on the street response to reported disturbances or other similar incidents, whether or not those calls involve subjects with mental disabilities, prior to the officer securing the scene and ensuring that there is no threat to human life.
  5. To establish a prima facie case of discrimination under title II of the ADA, plaintiff have to demonstrate that: 1) he or she is qualified per the ADA; 2) he or she is being excluded from participation in, or being denied benefits of, services, program, or activities but with the public entity is responsible, or is otherwise being discriminated against by the public entity; and 3) such exclusion, denial of benefits, or discrimination is by reason of his or her disability.
  6. The two officers who were called to the scene told the plaintiff that the matter was a civil matter and if she felt she was being discriminated against by the place of public accommodation, she should then retain an attorney and pursue a civil suit.
  7. Whether a service dog is permitted in a restaurant is a straightforward question of law.
  8. The plaintiff had no previous experience with the officers or the City of Alexandria with respect to ADA noncompliance issues. As a result, there wasn’t intentional discrimination.
  9. In a footnote, the court said that in order to recover compensatory damages for disability discrimination under title II of the ADA, a plaintiff must show that the discrimination was intentional, i.e. more than disparate impact. In this same footnote, the court said that the Fifth and Ninth Circuit have taken the position that an entity lacking knowledge and understanding about ADA compliance requirements does not even suggest deliberate indifference, which is the standard you have to meet to get damages under title II of the ADA, which we discussed here.
  10. While plaintiff allegations were poorly pleaded and the lack of evidence proved fatal to her claims, her complaint was not frivolous, unreasonable, or groundless. Therefore, the defendants request for costs was denied.

 

III

Thoughts/Takeaways

 

  1. No individual liability exists for violating the ADA in any of the titles, with a rare exception in the 11th Circuit pertaining to public entities per this case.
  2. If the reasoning of this court is taken at face value, there is no incentive for police forces to learn about the rights of people with disabilities because they never have to worry about damages since ignorance does not equal deliberate indifference.
  3. A critical piece of this case was that the plaintiff had no history of working with the police force regarding ADA noncompliance issues. If the plaintiff had such a history, it is possible the outcome of this case would be different.
  4. Within the next couple of months, the Supreme Court will be hearing a case asking the question of whether §504 of the Rehabilitation Act includes a disparate impact cause of action.
  5. Another way the police force can escape damages for not knowing the law in these situations is to simply advise the individual that they can retain a private attorney to sue the owner for disability discrimination.
  6. Another option for a plaintiff in this situation to consider is to file a claim under the Rehabilitation Act. True, the standard for damages is the same. However, 29 U.S.C. §794(b)(1)(A) states that all operations of an instrumentality of local governments must be meaningfully accessible to persons with disabilities. As such, the Rehabilitation Act goes further than the requirements of title II, which focuses on program accessibility. That said, many cases have held that title II applies to everything that a public entity does.
  7. The case doesn’t discuss 42 U.S.C. §12203(b), the ADA’s interference provisions.
  8. What is concerning about the case that there is now an incentive for police forces to not know the ADA. The history requirement for establishing deliberate indifference has the weird incentive of actually promoting serial suits.
  9. The Supreme Court will also be hearing a case asking the question of whether §504 of the Rehabilitation Act includes damages for emotional distress. If a Rehabilitation Act claim had been filed in this case, whether §504 allows for emotional distress would be a very real issue as actual damages do not seem to be in existence here.
  10. The facts listed by the court says a service dog was not involved. However, no mention of that is found in the court’s reasoning. That is interesting in and of itself because it should have been game over for the plaintiff at that point.
  11. The court said that the plaintiff has the burden to request accommodations in specific and direct terms. However, we know, as we discussed here, that magic words are not required.
  12. The Supreme Court let stand a Ninth Circuit decision, here, holding that title II of the ADA applies to arrests when it decided she can on other grounds, as we discussed here.

Today’s case, Kaswatuka v. United States Department of Homeland Security, a published decision from the Fifth Circuit that came down on August 2, 2021, here, deals with an issue we have not dealt with before in our blog. This case concerns a person who works as a security officer at the DFW international Airport. She alleged violations of the ADA among other things. With respect to the ADA, the Department of Homeland Security defended on the grounds that the Aviation and Transportation Security Act preempted the ADA. The court winds up agreeing with the Department of Homeland Security. As usual, the blog entry is divided into categories and they are: court’s reasoning focusing on the applicability of ADA taken directly from the opinion; 49 U.S.C. §44935(a)-(g); and thoughts/takeaways. The reader is free to focus on any or all of the categories. I could see the reader skipping §II perhaps. I can’t see the reader skipping §§I, III.

 

I

Court’s Reasoning Focusing on the Applicability of the ADA (taken directly from the opinion).

 

The ATSA was enacted following the attacks of September 11, 2001 and established the TSA. See Field v. Napolitano, 663 F.3d 505, 508 (1st Cir. 2011); 49 U.S.C. § 114. The ATSA affords the TSA Administrator discretion in developing employment standards for airport security screeners. Id. § 114(e). The ATSA states that “[t]he Administrator shall establish qualification standards for individuals to be hired . . . as security screening personnel. Notwithstanding any other provision of law, those standards shall require, at a minimum, an individual . . . to meet such other qualifications as the Administrator may establish[.]” 49 U.S.C. § 44935(e)(2)(A)(iv) (emphasis added). It also explains that “[n]otwithstanding any other provision of law,” screeners must “possess basic aptitudes and physical abilities, including color perception, visual and aural acuity, physical coordination, and motor skills[.]” 49 U.S.C. § 44935(f)(1)(B). “[T]he use of . . . a `notwithstanding’ clause clearly signals the drafter’s intention that the provisions of the `notwithstanding’ section override conflicting provisions of any other section.” Cisneros v. Alpine Ridge Grp., 508 U.S. 10, 18 (1993). As sections of the ATSA conflict with the Rehabilitation Act, many courts have held that “the language of the ATSA plainly precludes security screeners from bringing suit under certain of the federal employment statutes . . . including the Rehabilitation Act.” See Field v. Napolitano, 663 F.3d 505, 512 (1st Cir. 2011); see also Coleman v. Sec’y U.S. Dep’t of Homeland Sec., 649 F. App’x 128, 129-30 (3d Cir. 2016) (agreeing with the district court that it lacked subject-matter jurisdiction because the ATSA precludes TSA officers from bringing claims under the Rehabilitation Act); Joren v. Napolitano, 633 F.3d 1144, 1146 (7th Cir. 2011) (“We now join every other circuit to have considered the question and conclude that the plain language of the ATSA preempts application of the Rehabilitation Act to security screeners”); Castro v. Sec’y of Homeland Sec., 472 F.3d 1334, 1337 (11th Cir. 2006) (“The plain language of the ATSA indicates that TSA need not take the requirements of the Rehabilitation Act into account when formulating hiring standards for screeners.”). We therefore agree with the district court that Kaswatuka cannot proceed with a Rehabilitation Act claim as it is precluded by the ATSA.

 

II

49 U.S.C. §44935(a)-(g)

(a) Employment standards. –The Under Secretary of Transportation for Security shall prescribe standards for the employment and continued employment of, and contracting for, air carrier personnel and, as appropriate, airport security personnel.  The standards shall include–

(1)  minimum training requirements for new employees;

(2)  retraining requirements;

(3)  minimum staffing levels;

(4)  minimum language skills;  and

(5)  minimum education levels for employees, when appropriate.

(b) Review and recommendations. –In coordination with air carriers, airport operators, and other interested persons, the Under Secretary shall review issues related to human performance in the aviation security system to maximize that performance.  When the review is completed, the Under Secretary shall recommend guidelines and prescribe appropriate changes in existing procedures to improve that performance.

(c) Security program training, standards, and qualifications.–(1)  The Under Secretary–

(A)  may train individuals employed to carry out a security program under section 44903(c) of this title;  and

(B)  shall prescribe uniform training standards and uniform minimum qualifications for individuals eligible for that training.

(2)  The Under Secretary may authorize reimbursement for travel, transportation, and subsistence expenses for security training of non-United States Government domestic and foreign individuals whose services will contribute significantly to carrying out civil aviation security programs.  To the extent practicable, air travel reimbursed under this paragraph shall be on air carriers.

(d) Education and training standards for security coordinators, supervisory personnel, and pilots.–(1)  The Under Secretary shall prescribe standards for educating and training–

(A)  ground security coordinators;

(B)  security supervisory personnel;  and

(C)  airline pilots as in-flight security coordinators.

(2)  The standards shall include initial training, retraining, and continuing education requirements and methods.  Those requirements and methods shall be used annually to measure the performance of ground security coordinators and security supervisory personnel.

(e) Security screeners.–

(1) Training program. –The Under Secretary of Transportation for Security shall establish a program for the hiring and training of security screening personnel.

(2) Hiring.–

(A) Qualifications. –Within 30 days after the date of enactment of the Aviation and Transportation Security Act, the Under Secretary shall establish qualification standards for individuals to be hired by the United States as security screening personnel.  Notwithstanding any provision of law, those standards shall require, at a minimum, an individual–

(i)  to have a satisfactory or better score on a Federal security screening personnel selection examination;

(ii)  to be a citizen of the United States or a national of the United States, as defined in section 1101(a)(22)    1 of the Immigration and Nationality Act ( 8 U.S.C. 1101(a)(22) );

(iii)  to meet, at a minimum, the requirements set forth in subsection (f);

(iv)  to meet such other qualifications as the Under Secretary may establish;  and

(v)  to have the ability to demonstrate daily a fitness for duty without any impairment due to illegal drugs, sleep deprivation, medication, or alcohol.

(B) Background checks. –The Under Secretary shall require that an individual to be hired as a security screener undergo an employment investigation (including a criminal history record check) under section 44936(a)(1) .

(C) Disqualification of individuals who present national security risks. –The Under Secretary, in consultation with the heads of other appropriate Federal agencies, shall establish procedures, in addition to any background check conducted under section 44936 , to ensure that no individual who presents a threat to national security is employed as a security screener.

(3) Examination;  review of existing rules. –The Under Secretary shall develop a security screening personnel examination for use in determining the qualification of individuals seeking employment as security screening personnel.  The Under Secretary shall also review, and revise as necessary, any standard, rule, or regulation governing the employment of individuals as security screening personnel.

(f) Employment standards for screening personnel. —

(1) Screener requirements. –Notwithstanding any provision of law, an individual may not be deployed as a security screener unless that individual meets the following requirements:

(A)  The individual shall possess a high school diploma, a general equivalency diploma, or experience that the Under Secretary has determined to be sufficient for the individual to perform the duties of the position.

(B)  The individual shall possess basic aptitudes and physical abilities, including color perception, visual and aural acuity, physical coordination, and motor skills, to the following standards:

(i)  Screeners operating screening equipment shall be able to distinguish on the screening equipment monitor the appropriate imaging standard specified by the Under Secretary.

(ii)  Screeners operating any screening equipment shall be able to distinguish each color displayed on every type of screening equipment and explain what each color signifies.

(iii)  Screeners shall be able to hear and respond to the spoken voice and to audible alarms generated by screening equipment in an active checkpoint environment.

(iv)  Screeners performing physical searches or other related operations shall be able to efficiently and thoroughly manipulate and handle such baggage, containers, and other objects subject to security processing.

(v)  Screeners who perform pat-downs or hand-held metal detector searches of individuals shall have sufficient dexterity and capability to thoroughly conduct those procedures over an individual’s entire body.

(C)  The individual shall be able to read, speak, and write English well enough to–

(i)  carry out written and oral instructions regarding the proper performance of screening duties;

(ii)  read English language identification media, credentials, airline tickets, and labels on items normally encountered in the screening process;

(iii)  provide direction to and understand and answer questions from English-speaking individuals undergoing screening;  and

(iv)  write incident reports and statements and log entries into security records in the English language.

(D)  The individual shall have satisfactorily completed all initial, recurrent, and appropriate specialized training required by the security program, except as provided in paragraph (3).

(2) Veterans preference. –The Under Secretary shall provide a preference for the hiring of an individual as a security screener if the individual is a member or former member of the armed forces and if the individual is entitled, under statute, to retired, retirement, or retainer pay on account of service as a member of the armed forces.

(3) Exceptions. –An individual who has not completed the training required by this section may be deployed during the on-the-job portion of training to perform functions if that individual–

(A)  is closely supervised;  and

(B)  does not make independent judgments as to whether individuals or property may enter a sterile area or aircraft without further inspection.

(4) Remedial training. –No individual employed as a security screener may perform a screening function after that individual has failed an operational test related to that function until that individual has successfully completed the remedial training specified in the security program.

(5) Annual proficiency review. –The Under Secretary shall provide that an annual evaluation of each individual assigned screening duties is conducted and documented.  An individual employed as a security screener may not continue to be employed in that capacity unless the evaluation demonstrates that the individual–

(A)  continues to meet all qualifications and standards required to perform a screening function;

(B)  has a satisfactory record of performance and attention to duty based on the standards and requirements in the security program;  and

(C)  demonstrates the current knowledge and skills necessary to courteously, vigilantly, and effectively perform screening functions.

(6) Operational testing. –In addition to the annual proficiency review conducted under paragraph (5), the Under Secretary shall provide for the operational testing of such personnel.

III

Thoughts/Takeaways

 

  1. A plain reading of the statute, which §§(a)-(g) can be found in §II of this blog entry immediately above, indicates that the Under Secretary has the authority to establish whatever qualifications it wants to establish for security screeners including those that screen out people with disabilities. It is also clear that reasonable accommodations do not factor into any of this according to the plain language of the statute.
  2. The plain language of the statute only applies to security screening personnel. I can’t tell from either the opinion or the complaint whether the plaintiff was security screening personnel as the term used in both places is, “security officer.” The opinion itself only refers to the plaintiff working as a security officer. Is that the same thing as a security screener? The plain language of the statute suggests that the lack of recourse for any person with the disability working for the Transportation Security Administration only applies to security screening personnel.
  3. A lesson in how not to do a job description is contained in §44935(f)(1)(B). That is, job descriptions should be organic and not focused on physical abilities. The screener requirements are clearly focused on physical abilities. There may be ways to accomplish what needs to be accomplished without focusing on the physical abilities side of things. That said, if there isn’t, then it is an essential function of the job that simply cannot be done with or without reasonable accommodations, assuming we are utilizing ADA analysis, which we are not. The Job Accommodation Network is fabulous with these kinds of issues.
  4. It is clear from the statute that if you are a person with a disability working for the Transportation Security Administration as a security screener, it is perfectly permissible for the Transportation Security Administration to discriminate against that person based upon their disability and there will be no consequences for it. Same goes for if a Transportation Security Administration employee working as a security screener becomes a person with a disability. Clearly, no right to a reasonable accommodation either.
  5. According to the opinion, no Circuit Court split exists. The lack of a Circuit Court split is not surprising because the language of the statute is very clear. I could see a Circuit Court split developing if the Transportation Security Administration employee was not a security screener. In that situation, you would have a strange paradigm where security screeners with disabilities have absolutely no protection under §501 of the Rehabilitation Act, but employees of the Transportation Security Administration who are not security screeners are subject to §501 of the Rehabilitation Act. Could Congress have really intended that?
  6. One wonders if Pres. Biden could not issue an executive order saying that the Transportation Security Administration has to comply with §501 of the Rehabilitation Act with respect to its security screeners? Would such an order violate the separation of powers in light of the plain language of the statute with respect to security screeners?
  7. It will be interesting to see whether any executive action is forthcoming. It will also be interesting to see if a Transportation Security Administration employee who is not a security screener is able to get past this decision. I am making the assumption that a Transportation Security Administration employee is not always a security screener. That assumption would seem to be a matter of common sense. That assumption is also backed up by a plain reading of 49 U.S.C. §44935(d), which you can find above.
  8. One of the problems that people with disabilities have, is that they don’t have easy access to competent attorneys. Law is unfortunately a business. One of the things I consistently see in my practice is that many people with disabilities simply can’t afford competent legal counsel. The other thing I see in my practice quite a bit is that there are not a lot of people litigating on behalf of people with disabilities in the title II and title I context. It seems that disability discrimination scares a lot of attorneys off for a variety of reasons, not the least of which is that the ADA, as we know, can get very complicated in a hurry. The duty of competence would demand that attorneys who don’t know this area of law the way they should, would get attorneys/consultants involved who do know the area. It often doesn’t happen that way though.

Many times before in this blog, such as here and here and here, we have discussed effective communication rules. On October 6, 2021, the American Bar Association issued Formal Opinion 500. Formal Opinion 500, here, now takes effective communication and makes it a matter of professional responsibility and a matter of legal ethics that attorneys must follow. This blog entry discusses Formal Opinion 500 and then offers my thoughts/takeaways on it, which are also the categories for this blog entry. While Formal Opinion 500 extends beyond persons with disabilities, the focus of this blog entry is just on persons with disabilities.

 

I

Formal Opinion 500

 

  1. Communication between a lawyer and a client is necessary for the client to participate effectively in the representation and is a fundamental component of nearly every client lawyer relationship.
  2. When a client’s ability to receive information from or convey information to a lawyer is impeded because the lawyer and the client do not share a common language or the client has a hearing, speech, or vision disability or other noncognitive physical condition, the duties of communication and competence are undiminished. In such a situation, the lawyer may be obligated to take measures appropriate to the client’s circumstances to ensure that those duties are capably discharged.
  3. When reasonably necessary, the lawyer should arrange for communication to take place through an impartial interpreter or translator capable of comprehending and accurately explaining the legal concepts involved and who will attend to and abide by the duty of confidentiality. The lawyer should also use other assistive or language translation technology when necessary.
  4. Where language considerations affecting the reciprocal exchange of information exists, a lawyer must ensure that the client understands the legal significance of translated or interpreted communications and that the lawyer understands the client’s communications.
  5. Assistive technologies include closed captioning, live transcription, screen readers, refreshable braille display, and speech recognition software. Other technologies include electronic text to voice translation software and devices, telecommunication relay services, video relay services, and video remote interpreting.
  6. Depending upon the circumstances, using technology instead of or in addition to the engagement of a human interpreter or translator may be appropriate and sufficient to satisfy the ethical obligations of communication and competence. Keep in mind, these technologies are rapidly changing and that underscores the duty of lawyers to develop an understanding of relevant technology.
  7. The adoption of the ADA has led to growing awareness among lawyers that clients seeking representation may not be able to hear, speak, or read without accommodation.
  8. The foundational rule of competence (Model Rule 1.1) and communication (Model Rule 1.4) in the ABA model rules of professional conduct prescribe a baseline that when a lawyer and client cannot communicate with reasonable efficacy, the lawyer must take steps to engage the services of a qualified and impartial interpreter and/or employing appropriate assistive or language translation device to ensure that the client has sufficient information to intelligently participate in decisions relating to the representation and that the lawyer is procuring adequate information from the client to meet the standards of competent practice.
  9. Lawyers must communicate with clients in a manner reasonably understandable to those clients so that clients know what is happening on their matters and can participate intelligently in the representation.
  10. Firms and other legal organizations may be legally required to provide and pay for auxiliary aids and services in order to provide a client with reasonable accommodations under the ADA because law offices are explicitly included in the definition of public accommodations per 42 U.S.C. §12181(7)(f).
  11. The ADA does not allow entities to pass along the cost of auxiliary aids and services to the person with the disability.
  12. The duty of communication under current Model Rule 1.4 includes the duties: 1) to promptly inform the client of information when the client’s informed consent is required; 2) to reasonably consult with the client about the representation; 3) to keep the client reasonably informed about the status of the matter; 4) to promptly comply with reasonable requests for information; and 5) to consult with the client on relevant limitations on the lawyer’s ability to provide legal assistance. It is also incumbent on the lawyer to ensure that the client has sufficient information to participate intelligently in the client lawyer relationship, to explain the matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
  13. Reasonably understandable client lawyer communication is not only necessary to enable the client to make important decisions, it is also an element of the lawyer’s obligation to provide the client with competent representation under Model Rule 1.1. If a lawyer does not communicate with the client in a mutually understood language, it is doubtful that the lawyer is exercising the thoroughness and preparation necessary to provide the client with competent representation.
  14. Communication between a lawyer and the client is both the means by which they client is provided with the advice and explanation needed to make important decisions and the vehicle as to how the lawyer obtains information required to address the client’s legal matter appropriately.
  15. The information that must be provided when discharging the duty to explain a matter reasonably is what is appropriate for a client who is a comprehending and responsible adult.
  16. If communications issues are such that the client cannot adequately comprehend the lawyer’s advice and other communication and therefore, cannot participate intelligently in the representation, or the lawyer is unable to ascertain the information needed to competently assist the client, the lawyer must take measures to establish a reasonably effective mode of communication. Ordinarily, that will require the engagement of a qualified impartial interpreter or translator or in some situations the use of an appropriate assistive or language translation device so that the lawyer and client can reasonably understand one another to a degree compatible with the lawyer’s professional obligations.
  17. Ordinarily, the mode of communication to be used during the representation of the matter is to be decided between the lawyer and the client. In the case of language access issues, consultation with the client is appropriate if possible.
  18. A lawyer cannot passively leave the decision to the client or thrust the responsibility for making arrangements for interpretation or translation entirely upon the client.
  19. Once it is reasonably apparent that without an interpreter, translator, or an appropriate assistive or language translation device that there cannot be a reliably understandable reciprocal exchange of information between the lawyer and the client, the lawyer must take steps to help the client understand the need for and purpose of an interpreter or translator, and when reasonably necessary, take steps to secure such services.
  20. It is the lawyer’s affirmative responsibility to ensure the client understands the lawyer’s communications and that the lawyer understand the client’s communications. Where doubts exist, that doubt should be resolved in favor of getting an interpreter, translator, or an appropriate assistive or language translation device.
  21. In general, an individual engaged to facilitate communication between the lawyer and the client must be qualified to serve as an interpreter or translator in the language required, familiar with and able to explain the law and legal concepts in that language, and be free of any personal or other potentially conflicting interest that create the risk of bias or prevents the individual from providing impartial interpretive or translation services.
  22. The ADA generally obligates the lawyer to bear the cost of procuring such services when they are necessary to accommodate a disability.
  23. In assessing the qualifications of the prospective interpreter or translator, the lawyer should verify that the individual is skilled in the particular language or dialect required. In addition, the lawyer should confirm that the individual has the expertise needed to comprehend the legal concepts/terminology at issue so that the legal advice being provided is communicated accurately in the language or format acceptable to the client.
  24. In most situations, the verification of a prospective interpreter’s or translator’s level of skill and capacity to convey legal concepts is best achieved through the engagement of the services of an outside professional to assist the lawyer in the delivery of legal services.
  25. Depending on the circumstances, alternative arrangements may suffice. For example, a lawyer may look to a multilingual lawyer or a nonlawyer staff member within the firm to facilitate communication with the client. If a nonprofessional interpreter is contemplated, the lawyer should proceed cautiously in light of the reduced ability to assess the nonprofessional’s level of proficiency and the increased risk of inaccuracies in interpretation or translation.
  26. In some instances, a client’s friend or a family member may function as a viable interpreter or translator. However, particular care must be taken when using a client’s relatives or friends because of the substantial risk that an individual in a close relationship with the client may be biased by a personal interest in the outcome of the representation. In such situation, the lawyer must exercise appropriate diligence to guard against the risk that the lay interpreter is distorting or altering communications in a way that skews the information provided to the lawyer or the advice given to the client.
  27. A lawyer should be able to verify a prospective translator’s or interpreter’s professional qualifications in the same manner use when engaging the services of an expert, i.e., by evaluating the individual’s training, experience, certification, and professional standing.
  28. Relatives and friends of the client may also be less reliable in providing interpretation and translation services when needed because they lack accountability to the lawyer or firm derived from an employment or other contractual relationship.
  29. If obtaining necessary services would place an unreasonable financial burden on the lawyer or if necessary services are unavailable, the lawyer should ordinarily decline or withdraw from the representation or associate with the lawyer or law firm that can appropriately address the language access issue.
  30. Under Model Rule 5.3, the lawyer must make reasonable efforts to ensure that the interpretive or translation services are provided in a manner compatible with the lawyer’s ethical obligations, particularly Model Rule 1.6, duty of confidentiality.
  31. Lawyer should look for cues indicating that the nonprofessional interpreter is speaking for the client or filtering the attorney’s statement rather than impartially conveying the communications. In such situation, it is prudent for the lawyer to consult with the client about the risks and benefits of using a family member as an interpreter or translator.
  32. Attorneys representing clients through interpreters should ensure that the interpreter has a clear understanding of the obligation to keep the attorney-client communication confidential.

 

II

Thoughts/Takeaways

 

  1. Compliance with the ADA’s effective communication regulations is now more than a matter of ADA compliance. It is also now a matter of professional responsibility and compliance with legal ethical rules.
  2. Just when is the communication not effective? As a preventive law matter, lawyers would do well to read Silva I, which we discussed here.
  3. Lawyers should always use an impartial qualified interpreter.
  4. With respect to the culturally deaf, keep in mind that it is not unusual for the Deaf to not be able to read beyond a fourth grade reading level. So, live interpreters may be your only option. Further, video remote interpretation may not be so great either. Conversations over the phone where the culturally deaf individual uses a video relay phone to talk to an interpreter who responds to the lawyer can work well but it depends upon how technical the information is because of the skill of the video relay interpreter can vary considerably.
  5. Live transcription (AI) may work well depending upon how technical the information is. It is also going to depend upon the reading level of the prospective client.
  6. Technology is rapidly changing and lawyers have an ethical obligation to keep on top of the rapidly changing technology when it comes to being able to accommodate their clients so that effective communication occurs.
  7. Firms and other legal organizations are legally required to provide and pay for auxiliary aids and services in order to provide the client with reasonable modifications under the ADA in order to have effective communication with the client. The actual opinion uses the term, “may be legally required.” There is no “may be,” about it. Since the entire resources of the entity are looked at when it comes to undue burden, a lawyer is going to have a hard time showing that the costs of providing the auxiliary aid and service is going to be too much under the ADA. The lawyer is also going to have a hard time showing that providing such an auxiliary aid or service fundamentally alters the nature of their business. In fact, I don’t see how that is even possible.
  8. The ADA does not allow cost of auxiliary aids and services to be passed along to the person with the disability.
  9. While it is debatable whether the interactive process is required under title III of the ADA, it is certainly good preventive law to engage in the interactive process. Engaging in the interactive process with the person with the disability will prevent a lot of future problems down the road. It will also likely save you money. I would submit that the interactive process is necessary under title III and title II of the ADA because the very nature of providing reasonable modifications presumes an interactive process in the first place. For the do’s and don’ts of the interactive process, see this blog entry. Keep in mind, as we discussed here, that effective communication obligations may extend beyond the interactive process.
  10. While a lawyer cannot thrust the responsibility to make arrangement for interpretation or translation entirely upon the client, there isn’t anything wrong with asking the client for assistance as they may know the people to go to. The lawyer still bears the ultimate responsibility for paying for it and for making it happen.
  11. Qualified interpreters are so important. Definitely do not use family members or friends for interpreting. It is a really bad idea for many of the reasons noted in the opinion.
  12. I don’t think I understand where the authors of Formal Opinion 500 get the idea that the ADA generally obligates the lawyer to bear the cost of procuring auxiliary aids and services. The ADA obligates the lawyer to bear those costs. As mentioned above, it is unlikely that a defense will exist for not bearing those costs.
  13. Lawyer should confirm that the individual has the expertise needed to comprehend the legal concepts and terminology before providing any interpreter services.
  14. In the absence of some kind of extraordinary circumstance, I would not use nonprofessional interpreters, including family members, because of confidentiality issues, issues of bias, and accuracy issues.
  15. The ADA standard for providing auxiliary aids and services when necessary is undue burden. The formal opinion 500 talks about “unreasonable financial burden.” Undue burden has a completely different meaning and looks to the entire resources of the entity.
  16. A qualified interpreter for a culturally deaf individual is bound by their rules of ethics to keep communications between attorney and client confidential, which is yet another reason to use a qualified interpreter.
  17. To be fair to the authors of Formal Opinion 500, they note that the ADA is very much involved here and that the opinion’s purpose is not to set forth a lawyer’s ADA obligations. Similarly, I am not opining on a lawyer’s obligation to provide interpreters for non-disability reasons.
  18. Technology is changing rapidly. For example, Zoom is nowhere the same as it was six months ago when it comes to its accessibility features and its usability by deaf and hard of hearing individuals.
  19. As we know, title II and title III of the ADA use the term reasonable modifications and not reasonable accommodations but the terms, with one case as an outlier, mean the same thing.
  20. As we also know, the effective communication rules for title II and for title III are not precisely the same either. Title II has a primary consideration rule for the person with the disability while title III does not. Instead, title III presume some sort of interactive process.

Go Braves!

Today’s blog entry deals with two questions when it comes to regarded as claims. First, just what does a person have to show to qualify for a regarded as claim? Second, for the transitory and minor exception to apply, must that be a situation where the illness is both transitory AND minor? As we will see, plaintiff survives a motion to dismiss on both grounds even though the court applies a pre-ADA amendments standard to the first question. The case of the day is Matias v. Terrapin House, Inc. decided by the United States District Court for the Eastern District of Pennsylvania on September 16, 2021, here. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning why plaintiff’s regarded as claim survives the motion to dismiss; transitory and minor; and thoughts/takeaways. Of course, the reader is free to read any or all of the categories.

 

I

Facts

 

Plaintiff was employed with Terrapin from approximately August 28, 2020 until November 22, 2020 as a direct support professional. She alleged that she received no discipline during the course of her employment until her termination on November 22, 2020. On that date, she informed Terrapin of her need for leave under the Family First Coronavirus Relief Act and disclose to Terrapin that she had received a positive Covid-19 test result. More particularly, on November 19, 2020 she texted a representative Terrapin to inform them that she felt ill. When the representative inquired into whether she was experiencing symptoms, she responded that she was losing her sense of taste and smell. Rather than provide leave, Terrapin terminated her on the same date she informed them of her positive Covid-19 test saying that she was not a good fit. She brought suit alleging violations of the Family First Coronavirus Response Act, the ADA, and the Pennsylvania Human Relations Act.

 

II

Court’s Reasoning Why Plaintiff’s Regarded as Claim Survives the Motion To Dismiss

 

  1. An individual meets the requirement of being regarded as having such an impairment if the individual establishes that he or she has been subjected to an action prohibited by the ADA because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.
  2. To prevail, a plaintiff has to show that her employer misinterpreted information about her limitations to conclude that she was unable to perform a wide range or class of jobs.
  3. A plaintiff must show that the employer believed that a major life activity was substantially limited by the plaintiff’s impairment.
  4. An exception for ADA regarded as claims exists for impairments that are transitory and minor.
  5. In order to make out a regarded as claim, plaintiff must allege that her employer perceived her to have a disability and that her employer perceived that disability to substantially impair a major life activity.
  6. Citing to the joint guidance on long-haul Covid-19 put out by the DOJ and HHS, which we discussed here, Covid-19 is a physiological condition affecting one or more body systems.
  7. The guidance states that certain forms of Covid-19 can substantially limit major life activities, such as respiratory function, gastrointestinal function, and brain function for periods lasting months after first being infected.
  8. Loss of taste or smell is one of the common symptoms of long-haul Covid-19, and plaintiff felt that she was losing her sense of taste and smell.
  9. The immediate temporal proximity between plaintiff’s disclosure of her Covid-19 symptoms, her positive test result, and her termination raises a strong inference that her employer regarded her as disabled.

 

III

Transitory and Minor

  1. Courts have made clear that transitory and minor are two separate criteria and a defendant must establish both in order to prevail in its defense.
  2. CDC indicates that Covid-19 carries with it symptoms, including fever, chills, cough, shortness of breath, difficulty breathing, fatigue, muscle or body aches, headaches, new loss of taste or smell, sore throat, congestion, runny nose, nausea or vomiting, and diarrhea.
  3. According to the CDC, Covid-19 can damage the heart, blood vessel, kidneys, brain, skin, eyes, and gastrointestinal organs.
  4. The CDC recommends one seek immediate medical care if they experience trouble breathing, persistent pain or pressure in the chest, new confusion, inability to wake or stay awake, or pale, gray, or blue colored skin, lips, or nail beds.
  5. In a footnote, the court noted that it was taking judicial notice of certain facts regarding Covid-19 “posted by the CDC on its official website.
  6. On November 22, 2020, the day plaintiff was terminated, the CDC recorded over 176,000 new Covid-19 cases in the United States alone.
  7. The hospitalization and mortality profiles of the seasonal flu pale in comparison to those associated with Covid-19. While an average of 422,000 people in the United States are hospitalized each year due to the seasonal flu, domestic Covid-19 hospitalization between August 1, 2020 and September 10, 2021 totaling over 2,876,000 people. So when viewed from the perspective of mortality, Covid-19 proves to be more deadly than the seasonal flu. Therefore, Covid-19 viewed objectively is not minor as contemplated by the amendments to the ADA.
  8. An employer may not defeat regarded as coverage of an individual simply by demonstrating that it subjectively believed the impairment was transitory and minor. Instead, the covered entity must demonstrate that the impairment is (in the case of an actual impairment) or would be (in the case of a perceived impairment) both transitory and minor.

IV

Thoughts/Takeaways

  1. Plaintiff survived a motion to dismiss despite the court applying the wrong standard in numerous places. You don’t see that a lot.
  2. The court refers to a plaintiff having to show that she was unable to perform a wide range or class of jobs. The only time this comes up is where the plaintiff alleges that working is the major life activity. Considering the amendments to the ADA, it is legal malpractice for a plaintiff’s attorney to allege working as the major life activity unless he or she absolutely has no other alternative. The wide range or class of jobs comes from Sutton v. United Airlines, here, which was overruled in many respects by the amendments to the ADA but not with respect to working as the major life activity.
  3. A plaintiff for a regarded as claim does not have to show that an employer believed that a major life activity was substantially limited. After the amendments, all a plaintiff has to show is that the employer regarded the individual as having a physical or mental impairment.
  4. Transitory and minor means exactly that. That is, for the transitory and minor exception for regarded as claims to come into play, the condition at issue must be BOTH transitory and minor. They are two separate criteria. As the court makes clear, Covid-19 is certainly not minor and it may or may not be transitory.
  5. Proximity between the adverse action and the right exercised always matters in these cases.
  6. Transitory and minor is an affirmative defense that must be established by the employer.
  7. The transitory and minor exception only applies to regarded as claims, though it can be helpful as a tool for figuring out whether a temporary disability is an actual disability per the actual disability prong.
  8. CDC guidelines was given judicial notice by the court. This could be very important for plaintiff attorneys to keep in mind when dealing with refusal to accommodate in the face of anti-mask and anti-vaccine policies where their client is immuno-compromised or at a much higher risk of severe consequences of getting Covid-19 due to underlying conditions.
  9. Transitory AND minor is an objective standard that is not dependent on an employer’s subjective belief.

Go Braves and White Sox! Congratulations to the Red Sox.

Today’s blog entry come from a case that I found through Law 360. It is a decision by Judge John Kness of the United States District Court for the Northern District of Illinois Eastern Division. The case is Magee v. McDonald’s USA, here, decided on October 5, 2021. The Law 360 article says we can expect an appeal. The issues raised by the case are just who is an operator for purposes of title III of the ADA and whether facially neutral policies can discriminate against persons with disabilities in violation of the ADA. As usual, the blog entry is divided into categories and they are: facts; McDonald’s is not an operator; McDonald’s facially neutral policy and plaintiff cannot show causation; and thoughts/takeaways. Of course, the reader is free to read any or all of the categories.

 

I

Facts

  1. Plaintiff is legally blind, suffers from macular degeneration, and cannot drive a car in the McDonald’s drive-through lane.
  2. Certain McDonald’s USA franchises only serve food late at night through the drive-through lane meaning that the plaintiff cannot order McDonald’s food late at night from those restaurants while at those McDonald’s unless he was in someone else’s vehicle.
  3. Plaintiff’s vision disability precludes him from operating a motor vehicle.
  4. Many McDonald’s restaurants close their dining lobby during late-night hours and offer only drive-through service. Late-night patrons of those restaurants have two options to obtain McDonald’s food. They can either order from a motorized vehicle through the restaurant’s drive-through window or they can order through Uber Eats.
  5. Plaintiff tried to walk through the drive-through lane during late-night hours. Each restaurant denied him service.
  6. Plaintiff’s visits to the California restaurant were part of a lawyer planned test of other McDonald’s restaurant to strengthen his case. His attorneys gave him the list of California-based McDonald’s restaurant to visit. His attorney suggested, plan, and paid for his California trip. Plaintiff visited many of the restaurants on the attorney provided list during the late-night hours. In fact, a friend of the plaintiff’s drove to the restaurants and parked in the lot where he then attempted to order food from the drive-through lane as a pedestrian to no avail. Plaintiff never attempted to order food from the drive-through as a passenger in a motorized vehicle.
  7. Neither the franchise agreement nor the operations and training manual include mandatory policies for serving restaurant patrons during the late-night hours. Both documents are also similarly silent concerning which parts of the restaurant must remain open during late-night hours. Finally, restaurants are authorized to decide whether to allow pedestrians to use the drive-through lane.

 

II

McDonald’s as the Franchisor Is Not an Operator

 

  1. The word operates means an entity that performs effectively the whole function of operating a business.
  2. Where the entity does not perform the whole function of operating a business, case law in the Seventh Circuit has said that such an entity is not an operator for purposes of title III.
  3. Some courts have even gone further by requiring for the operator label to apply to a franchisor, that the franchise agreement must specifically reflect the franchisor’s right to direct the franchisee to make an accessibility related change.
  4. Under the franchise agreement, franchisees are bound to certain mandatory policies and procedures. For example, the franchise agreement requires franchisee’s to comply with all federal, state, local laws, ordinances, and regulations affecting the operation of the restaurant at their own expense.
  5. The operations and training manual also provides for both mandatory and suggested procedures for the franchisees to implement.
  6. The operations and training manual includes an explicitly permissive chapter and procedures for keeping a restaurant lobby open or closed during late-night hours. That chapter of the manual allows the franchisee to establish its own policies, and allows the franchisee to choose the information helpful to it in operating its business. That chapter also notes that the franchisees are independent employers making their own employment policies and decisions and that they may choose to use part, all, or none of the content contained in the manual.
  7. Neither the franchise agreement nor the operations and training manual provide any required late-night service procedures for franchisees. It is up to the franchisees to independently decide whether they will be open for late-night hours, how they will be open, and what policies they will implement if they choose to remain open. In fact, some restaurants elect to stay open late at night and offer services via drive-through’s only. Others choose to keep their lobbies open and hire security guards to ensure safety. The late-night operation decision is left to the franchisees.

III

McDonald’s Policy Is Facially Neutral and Plaintiff Cannot Show Causation

  1. Title III of the ADA talks about causation in terms of whether an entity discriminates against a person on the basis of his disability. The “on the basis,” standard requires a plaintiff to prove that but for his or her disability, he or she would have been able to access the services or benefits desired.
  2. The court in a footnote cites to a previous case where a person also sued McDonald’s because of their refusal to accommodate her during late-night hours. However, at the time of that case McDonald’s did not offer delivery. Since that time, McDonald’s now offers late-night delivery through Uber Eats.
  3. The policy of denying pedestrians service in the drive-through affects all patrons of the restaurant regardless of disability. It is not the disability preventing the plaintiff from purchasing McDonald’s food during the late-night hours, rather it is the pedestrian status that limits his access.
  4. The policy prohibits both sighted and blind pedestrians from walking up and placing an order at drive-through lanes intended for customers in motor vehicles. Any bias in the policy lies in favor of customers in motor vehicles and against all manner of, “perambulating gourmands.”

IV

Thoughts/Takeaways

  1. Very interesting that the court talks about how the plaintiff financed the California trip. That in combination with the term “perambulating gourmands,” indicates that the court has had enough of serial plaintiffs, especially since neither how the California trip was financed nor a person being a “perambulating gourmand,” is germane to the decision.
  2. I am not optimistic about an appeal, which according to the Law 360 article is going to happen, because the Seventh Circuit is not a friendly place for people with disabilities.
  3. If you are a franchisor, this case makes the point that the franchise agreement and the training and operation manuals are critical pieces. On the franchisor side, giving as much leeway to the franchisee as possible is the way to go.
  4. I suppose the reason why the franchisee itself was not sued was because the deep pockets lie with McDonald’s.
  5. If you define operates as an entity that performs effectively the whole function of operating the business, does this mean you can delegate parts of the function of the business to others and not have to worry about ADA compliance? I believe the answer to that question is no as seen in this blog entry.
  6. In my opinion, it goes too far to say that an operator only exists with the franchise agreement specifically reflects the franchisor’s right to direct the franchisee to make an accessibility related change.
  7. Franchisees, at least with McDonald’s, have to comply with federal law at their own expense.
  8. Facially neutral policies are perfectly okay. In this case, the policy discriminated against pedestrians as a whole and not individuals with disabilities. To my mind, this raises a larger question about whether disparate impact cases are allowable. Whether disparate impact cases are allowable under the Rehabilitation Act will be heard by the Supreme Court within the next couple of months.
  9. With respect to plaintiff’s visit to California McDonald’s, plaintiff would have been able to use the drive-through as he was driven to those McDonald’s by a friend who waited for him in the car. One wonders if that didn’t affect the decision in some sort of subtle way.
  10. “But for” causation, has a completely different meaning than what it used to after Bostock v. Clayton County, which we discussed here. For an excellent law review article by Professor D’eandra Shu on the coming sea change in causation, see here.

Good luck to all your teams in the baseball playoffs. Go Atlanta Braves and Chicago White Sox!

I was really busy this week on a pressing client matter. So, the blog entry for the week is a bit late, which occasionally does happen. This week’s blog entry is a response to a push by those very much leading the professional recovery program efforts to expand those efforts to include cognitive screening for all physicians no matter what the situation. The article comes from an article written by Christopher C. Bundy, MD, MPH and Betsy White Williams, PhD, MPH entitled, “Cognitive Screening for Senior Physician: Are We Minding the Gap?” The article, which was published in the Journal of Medical Regulation and can be found here, concludes by saying that, “proactive, mandatory health screening for all physicians would be more effective than age-based screening and mitigating patient safety risk due to performance deficits, while also creating individual and systemic accountability aimed at health protection and workforce sustainability.” The point of this blog entry is to go through various pieces of that article and point out that the article’s suggestions are not in accordance with the provisions of the ADA or §504 the Rehabilitation Act. As usual, the blog entry it divided in the categories and they are the medical model of disability and point counterpoint. Considering the layout of the blog entry, you are probably going to want to read the whole thing.

 

I

The Medical Model of Disability

 

Professional recovery programs working in conjunction with medical licensing boards operate on the medical model of disability. Just what is that model? The best description I have seen of that model is from Prof. Kat MacFarlane’s forthcoming article in the Fordham Law Review, which is entitled, “Disability without Documentation, here.” Her view is that the ADA should operate more like the religious accommodation world does when it comes to accommodating people with sincerely held religious beliefs. When it comes to accommodating sincerely held religious beliefs, you assume that religious belief is sincere and work from that. Whereas with the ADA, to some extent there is an assumption that the disability is not something to take on face value but must be confirmed to some degree. It is a very interesting approach, and I commend the article for anyone to read. A couple of things that I will point out are: 1) the process of confirming disabilities has gotten much better for persons with disabilities with the advent of the amendments to the ADA and their final accompanying implementing regulations; and 2) employers are clamping down on their employees that do not want to get vaccinated. So, I am seeing the religious accommodation process moving away from the assumption that the belief is automatically sincere. I have been reading reports of employers putting in systems to confirm, much in the way a disability is confirmed, a sincerely held religious belief.

All this said, Prof. MacFarlane does a wonderful job of explaining the medical model and how it operates, which is very much the way the professional recovery programs working in conjunction with medical licensing boards go about their business. More specifically, Prof. MacFarlane says in her forthcoming article the following:

“The ADA was intended to reject the medical model, which focuses on diagnoses, treatment, and rehabilitation. The medical model sidelines individuals with disabilities, giving them little say over their own identity. Prior to the ADA, federal 45 29 C.F.R. § 1630.2(o)(3) (emphasis added). 46 Id. 47 Flake, supra note 34, at 75 (quoting 29 C.F.R. app. § 1630.9). 48 Id. at 76–77. 49 Id. 50 Id. 51 29 C.F.R. § Pt. 1630, App. § 1630.9. 52 Id. Electronic copy available at: https://ssrn.com/abstract=3781221 8 disability law and policy “focused on changing, fixing, or training the disabled person to help him overcome his disability and adapt to the ways of ‘normal’ society.”53 Disability was treated as a biological condition. Pursuant to the medical model, a disabled individual is helped through either “rehabilitation efforts to enable the individual to overcome the effects of the disability, or medical efforts to find a cure for the individual.”54 The medical model perceives an individual’s disability as “personal misfortune” with no social cause.55 The medical model of disability grants tremendous power to healthcare professionals. Physicians “validate the existence of disability” and serve as gatekeepers to social assistance.56 Pursuant to the medical model, “[t]he individual’s own subjective experience of impairment or limitation is irrelevant unless it can be professionally validated.” 57 Validation requires a physician, who alone can “diagnose or categorize the cause of an impairment” and also “measure and document its functional impact.”58” (Prof. Kat MacFarlane, Disability Without Documentation, forthcoming article in volume 90 of the Fordham Law Review, at pages 7-8).

I could not have said what the medical model is better myself.

II

Point/Counterpoint

 

  1. On page 42 of the Bundy article, which can be found here, this statement appears: “… cognitive impairment afflicts physicians across the career span, not just older physicians. If the overarching goal is to prevent patient harm through early detection of cognitive impairment in physicians, older physicians may, in fact, be too narrow a target.” 107 Journal of Medical Regulation 42. The problem with this statement is that it is not in accordance with the ADA and §504 of the Rehabilitation Act because preventing harm through early detection is not what the ADA or the Rehabilitation Act are all about. Rather, the question is in the case of employment is whether the person is a qualified individual with a disability. That is, do they meet the requisite requirement for the job by way of training, education, skills, etc. and whether they can do the job’s essential functions with or without reasonable accommodations without constituting a direct threat to self or others. Similarly, when it comes to medical licensing boards the only question is whether the licensee is a qualified individual with a disability per the ADA. Under title II, the question becomes Selectman raise whether they meet the essential eligibility requirements of the program and whether they can do that program with or without reasonable modifications and without constituting a direct threat to others. So, the premise of the paragraph is to weed out people with disabilities or show an early need to fix or cure a person with a disability. That is just not the way the ADA and the Rehabilitation Act roll. Also, keep in mind that the ADA per 42 U.S.C. §12102, protects all of the following categories: 1) a person with an actual disability; 2) a person with a record of a disability; and 3) a person who is regarded as having a disability. So, the emphasis in the ADA and in the Rehabilitation Act is not on whether the disability can be fixed or cured, which is in essence a personal choice, but rather whether the person is qualified per the ADA for the job or the program and does not constitute a direct threat. Finally, direct threat is a much higher standard, as we have discussed numerous times such as here, than the amorphous, “patient harm.”
  2. On page 43 of the article, the authors say, “age-based cognitive screening of physicians has received considerable pushback from the medical community and raises ethical and legal issues regarding age discrimination.” 107 Journal of Medical Regulation 43. This is absolutely true. The EEOC has currently sued Yale University hospitals for such a program. That case is ongoing. The EEOC also is in the process of settling with Yale University hospitals a lawsuit involving how they implement their wellness programs. What is missing from this paragraph is any recognition that such cognitive screening creates serious issues of noncompliance with the ADA and §504 of the Rehabilitation Act.
  3. On page 44 of the article, the authors say, “if our overarching goal is to prevent patient harm through early detection of cognitive impairment in physicians, older physicians may be too narrow a target.” 107 Journal of Medical Regulation 44. Patient harm is not the standard under the ADA. As mentioned above, the question is whether the individual is a direct threat to self or others if the individual’s employer is doing the evaluation, or whether the individual is a direct threat to others if it is the medical licensing board or the professional recovery program doing the evaluation. Such an overarching goal creates problems with respect to giving people a record of a disability, which they may or may not actually have, and certainly creates problems by regarding people as having a disability.
  4. Also on page 44, the authors say, “…merely focusing on concerns related to aging may be a convenient and more comfortable proxy for the larger problem of proactive identification of potentially impairing health conditions at any age.” Id. (Emphasis mine). “Potentially impairing health conditions,” is a term you see all over the Federation of State Medical Boards Policy on Physician Impairment. With respect to ADA compliance, using such a term as your touchstone, will keep ADA defense lawyers very busy and allow plaintiffs lawyers to gravitate to such cases. The term “potentially impairing health conditions,” is simply not consistent with the ADA or the Rehabilitation Act. The question is under the ADA/Rehabilitation Act whether you have an actual disability, a record of a disability, or are regarded as having a disability. Using “potentially impairing,” means that you are automatically regarding that individual as having a disability and allowing him or her to be protected by the ADA. Remember, for a person to be protected under the ADA all they have to show is one of the three definitions of disability.
  5. Again on page 44, the authors state, “we suggest that the value of the physician as healthiest self be woven into the physician identity beginning in medical school and reinforced throughout the career span.” Id. No one can argue with the idea that everybody should be as healthy as they possibly can. However, the language clearly suggests that people with disabilities are simply not healthy. Whether you are healthy or have a disability are two completely different concepts.
  6. On page 45, the authors state, “other safety sensitive professions-such as airline pilot, air traffic controllers, police officers, and firefighters-recognize the link between health and performance and undergoing routine compulsory health screening. The absence of such screening for physicians is a conspicuous gap in the professional self-regulation of physicians. If we are truly committed to protecting our workforce and promoting patient safety, then we should mind this gap and consider the merits of mandatory routine health screening for all physicians. This is particularly important, and physicians may have difficulty acknowledging that they are unwell and tend to underutilize health services.” 107 Journal of Medical Regulation 45. The problem with this particular statement with respect to ADA/Rehabilitation Act compliance are numerous. First, under title I of the ADA medical examinations and disability related inquiries of current employees can only be done when there is reason to believe that such a medical exam/inquiry is necessary because it is job-related and consistent with business necessity. We have discussed job-related and business necessity many times before in the blog, such as here and here. Second, the ADA in both title I and title II prohibits policies and procedures that screen out people with disabilities. Clearly, compulsory health screening is such a policy. Finally, if my experience in my practice is any indication, such compulsory screening would not take into account whether the person is qualified per the ADA or whether the person constitutes a direct threat to self or others or to just others, depending upon what title of the ADA is at issue.
  7. Also, on page 45 of the article, this appears, “we recognize that the prospect of mandatory health screening over the career span is likely to be met with resistance. However, we have argued that health conditions that could negatively (emphasis mine), impact physician performance and patient safety are not limited to older physician; thus, the rationale for screening is valid for all physicians. We have also suggested that age is but one factor, probably less important than health, in the complex interplay between cognition and practice performance.” Id. This paragraph also has several problems with respect to ADA/Rehabilitation Act compliance. First, “that could negatively,” is really the same term as, “potentially impairing.” Those terms are not consistent with the ADA/Rehabilitation Act. Second, patient safety is not the issue either under the ADA or the Rehabilitation Act. The question is direct threat. Further, direct threat is a high standard as we have discussed here. Finally, the prospect of mandatory health screening over the career span should be met with resistance because it is not in accordance with the ADA or the Rehabilitation Act.
  8. On page 46 of the article, the authors say this, “physicians who have positive screen that result in the need for further health evaluation could be directed to their State Physician Health Program. State Physician Health Programs (PHP’s) have a highly effective model to address and rehabilitate impairing health conditions in physicians and other health professionals.” 107 Journal of Medical Regulation 46. While one may or may not quibble with the substance of the statement, the statement by itself is neutral enough on its face. However, title I of the ADA final implementing regulations and the technical assistance memorandums for title II and title III of the ADA make clear that any such evaluations need to be narrowly focused, which, if my experience in my practice is any indication, does not happen with regularity.
  9. Also, on page 46 of the article, the authors say, “should health screening and follow-up reveal an impairment, substantial risk of impairment, or risk of dyscompetence/incompetence, the PHP and physician would work together along the traditional PHP pathway with the goal of rehabilitating the physician’s safe continuation of, or return to, practice.” Id. There are numerous problems here with respect to ADA/Rehabilitation Act compliance. First, absolutely nothing wrong with having an impairment. All kinds of people have impairment. The question is under title I and II of the ADA is whether they are a qualified person per the ADA with a disability. Second, as mentioned previously, the potential for impairment plays no role in ADA analysis. The question is whether the individual is a direct threat to self or others should an employer be doing the evaluation or whether the individual is a direct threat to others should the medical licensing board or the PHP be doing the evaluation. Finally, the language makes it very very clear that what is going on here is the medical model of disability which the ADA as amended largely, but certainly not entirely, does away with.
  10. As I have mentioned, public safety is not the standard rather direct threat is. However, public safety may come into play with respect to the burden of proof for establishing direct threat, as we discussed here. That said, direct threat and who has the burden of proof for establishing direct threat are not at all the same thing.
  11. The term qualified does not appear in title III of the ADA at all, but the paradigm of the ADA is such that the term must be implied. Otherwise, how can a title III entity convincingly show that a reasonable modification is a fundamental alteration to how their business operates.
  12. The medical model described in this article also has serious implications for the healthcare sector because many ADA qualified healthcare providers will be and are being pulled from the profession so that their disability can be fixed or cured even though they are perfectly capable of performing the essential functions of their job with or without reasonable accommodations and do not constitute a direct threat to others. They also meet all the essential eligibility requirements for their profession as well.
  13. Fortunately, my understanding is that the legal profession has not yet gone the route of the medical profession with respect to the “potentially impaired,” attorney. For the reasons laid out in this article, I sincerely hope that the legal profession does not go down this path. Since lawyers worry about complying with the law, I would hope that we would know better. Finally, I would also refer readers to the blog entry I previously wrote on the issues contained in this blog entry as well.

Go Braves and go White Sox. Good luck to all of your teams in the baseball playoffs.

Emotional support animal fraud is a big deal for not only businesses but for people with disabilities with service animals. Businesses and landlords have to manage it. People with disabilities with service animals wind up in a situation where their service animals might be in jeopardy. Also, the emotional support animal abuse creates a presumption that the person with the disability does not have a service animal. Accordingly, various states are passing laws to deal with this issue. We previously discussed what Illinois did here. Just recently, on September 8, 2021, California enacted a law dealing with emotional support animals, and I thought it would be worthwhile discussing. Before going further, I do have to disclose that I am not a licensed attorney in California even though my first law degree was from the University of San Diego. I knew early that I did not want to practice in California, so I never took the California bar. So, what is offered here is just a look at the plain meaning of the statute. If you have any questions, you do want to consult an attorney licensed in California. As usual the blog entry is divided into the categories, which are the provisions of Assembly Bill #468 and thoughts/takeaways. The blog entry is such that you will want to read the whole thing.

 

I

What Are the Provisions of Assembly Bill #468

  1. A business or a person selling or providing a dog for use as an emotional support dog “shall,” provide a written notice to the buyer or recipient of the dog stating all of the following: 1) the dog does not have the special training required to qualify as a guide, signal, or service dog; 2) the dog is not entitled to the rights and privileges accorded by law to a guide, signal, or service dog; and 3) knowingly and fraudulently representing oneself to be the owner or trainer of any canine license as, to be qualified as, or identified as, a guide, signal, or service dog is a misdemeanor.
  2. A person or business selling or providing a certificate, identification, tag, vest, leash, or harness for an emotional support animal “shall,” provide a written notice to the buyer or recipient stating all of the following: 1) the item does not entitle an emotional support animal to the rights and privileges accorded by law to a guide, signal, or service dog; 2) knowingly and fraudulently representing oneself to be the owner or trainer of any canine license as, to be qualified as, or identified as, a guide, signal, or service dog is a misdemeanor; 3) the written notice “shall,” be made in at least 12 point bold type, and shall be provided on the receipt for the emotional support dog or the product described or on a separate piece of paper.
  3. A healthcare practitioner “shall,” not provide documentation relating to an individual’s need for an emotional support dog unless the healthcare practitioner complies with all of the following: 1) possesses a valid, active license and includes the effective date, license number, jurisdiction, and of professional license in the documentation; 2) is licensed to provide professional services within the scope of the license in the jurisdiction in which the documentation is provided; 3) establishes a client-provider a relationship with the individual for at least 30 days prior to the providing the documentation requested regarding the individual’s need for an emotional support dog; 4) completes a clinical evaluation of the individual regarding the need for an emotional support dog; and 5) provides a verbal or written notice to the individual that knowingly and fraudulently representing oneself to be the owner or trainer of any canine license as, to be qualified as, or identified as, a guide, signal, or service dog is a misdemeanor.
  4. A healthcare practitioner may be subject to discipline from the healthcare practitioner’s licensing board for a violation of the statute.
  5. Violation of the statute are subject to a civil penalty of $500 for the first violation, $1000 for the second violation, and $2500 for the third and any subsequent violation.
  6. The Atty. Gen. may bring an action for civil penalties as well as a district attorney, County Counsel, and city attorneys.
  7. The statute does not preempt any rights afforded under the California Fair Employment and Housing Act, the Unruh Civil Rights Act, or the Disabled Persons Act.
  8. Emotional support animal means an animal that provides emotional, cognitive, or other similar support to an individual with a disability, and that does not need to be trained or certified.
  9. Emotional support dog means a dog providing emotional, cognitive, or other similar support to an individual with a disability, and that does not need to be trained or certified.
  10. Guide, signal, or service dog references back to specific California statutory provisions in the Penal Code and in the Civil Code.

II

Thoughts/Takeaways

 

  1. I have to confess that much of the statute doesn’t make a lot of sense to me.
  2. “Shall,” can have up to seven different meanings, which is why the word appears in quotes in this blog entry. Commonly, it has up to four different meanings. For example, if your child says “I shall clean up my room,” what does that mean in terms of timeframe? As we all know, it may mean immediately, soon, not so soon, or never. So, we are left with the question of whether “shall,” is mandatory or whether it just means maybe maybe not.
  3. California has a misdemeanor statute for people who knowingly and fraudulently represent their animal as a service animal, which is not the case in all other states in the country.
  4. A dog by existing is an emotional support animal. Therefore, a real question arises whether everyone selling a dog in California must provide the notice described in the statute.
  5. I realize that California has specific meaning for guide, signal, or service dog. Keep in mind, that the ADA doesn’t break it down that way. The animal is a service animal or not. Under the ADA, as we discussed here, a service animal must be a dog, though miniature horses get similar treatment after a balancing test is applied. Also, the Fair Housing Act circular has its own set of rules, discussed here. Whether that circular is at all persuasive to the courts is another question per this blog entry because the circular is not based upon any regulation or even any statutory provision.
  6. With respect to the healthcare provider, the statute says that the healthcare provider must be licensed to provide professional services within the scope of the license and in the jurisdiction in which the documentation is provided. I don’t have a problem with understanding what is the scope of the license. However, what does “in the jurisdiction in which the documentation is provided,” mean? Are we talking at the state level or are we talking at some level below that? It just isn’t clear.
  7. It can be somewhat problematic that a client-provider relationship must be in place 30 days before submitting any documentation of the need for an emotional support dog. What if a person who needs an emotional support animal has just moved to the state? They can’t use an out-of-state provider per the statute. So, are they supposed to go without their emotional support animal for 30 days until they can find a healthcare practitioner to meet with them and recognize that they need an emotional support animal?
  8. A healthcare practitioner that does not follow the statutory provisions of this law is subject to discipline by their licensing board.
  9. Civil penalties are in order for violations of the statute.
  10. Emotional support animals and emotional support dogs are not certified. Why the language of certification appears in the definition of emotional support animal and emotional support dog in this statute is hard to figure out.
  11. The written notice must be in 12 point bold type, but nothing is said about making the notice accessible to a person with a visual impairment. So, don’t forget about the ADA.
  12. The statute has all kinds of problems. I prefer the Illinois statute on the subject, which we discussed here.
  13. I am not a California licensed attorney. Be sure to get such an individual at this law has all kinds of questions arising from it.

Next week, my daughter is on break and will be making college trips with each of her parents to different parts of the country. Then, all of us will meet up to see both sides of the family at the end of the week. So, I am hoping that I can get a blog entry up next week on either Wednesday, Thursday, or Friday. That said, it is going to be very hectic. So, do not be surprised if a blog entry does not go up next week. I anticipate my next blog entry will be posing a rebuttal to those pushing the medical model of disability in a big way when it comes to physician competency.

 

Today’s blog entry is a two for one. We are going to discuss two short cases. In the first, we will discuss the case, Nix v. Advanced Urology Institute of Georgia, that we previously blogged on here. The 11th Circuit in an unpublished decision affirmed that case. In the second, we will discuss the case of Heck v. The Copper Cellar Corporation, which presents the interesting question of what happens when you have an ADA disability discrimination case and statewide procedural hurdle for matters arising out of the Covid-19 pandemic. As usual, the blog entry is divided into categories and they are: why plaintiff justifiably appealed the lower court decision in Nix; the 11th Circuit Nix decision; Nix takeaways; Heck facts; Heck reasoning; and Heck takeaways. Of course, the reader is free to concentrate on any or all of the categories.

 

I

Why Plaintiff Justifiably Appealed the Lower Court Decision in NIX

 

Previously, here, we discussed the lower court decision in Nix v. Advanced Urology Institute of Georgia. If you recall, the lower court granted summary judgment to Advanced Urology. In that blog entry, I said that the plaintiff should appeal it for the following reasons:

 

  1. While the court found that effective communication was not present here, it didn’t mention the standard in Silva I, which is: “To be ineffective communication, it is sufficient if the patient experiences a real hindrance, because of her disability, which affects her ability to exchange material medical information with her health care providers. This standard is consistent with the requirement that hospitals afford a level of communication to a deaf patient about medically relevant information that is substantially equal to that afforded to non-disabled patients.”
  2. To show deliberate indifference in the 11th Circuit, Liese v. Indian River Community Hospital District, which we discussed here, a plaintiff has to show that the defendant: (1) knew they had failed to provide plaintiff with appropriate auxiliary aids necessary to ensure effective communication; (2) had the authority to order that aid be provided; and (3) was deliberately indifferent as to defendant’s failure to provide aid. A deliberate refusal to provide the auxiliary aid and service does constitute deliberate indifference under Silva I, discussed here.
  3. The court frequently cited to Silva II, here, which vacated the summary judgment on deliberate indifference but threw out the injunctive relief claim due to policy changes of the Defendant (the policy changes required: the provision of live in person interpreters upon request by a patient or guest; provided for VRI while waiting for a live interpreter; and provided for the scheduling of live interpreters for regularly scheduled appointments), as a basis for their decision. However, the impression created is not right. In Silva II, here, the 11th Circuit said that deliberate indifference by itself is not the exacting standard, per Nix’s understanding for example, rather deliberate indifference requires that the indifference be a deliberate choice, which is not the same thing.
  4. Silva II said that deliberate indifference occurs when the defendant knew that the harm to a federally protected right was substantially likely and failed to act on that likelihood. In other words, plaintiff must show ineffective communication done with knowledge that it was substantially likely to occur.

 

II
The 11th Circuit Nix decision

 

The 11th Circuit wasn’t having any of it. In particular, the 11th Circuit in an unpublished opinion reasoned as follows:

 

  1. The most plaintiff established was negligence in selecting an interpreter and not deliberate indifference to plaintiff’s rights.
  2. Defendant’s administrative personnel believed that the person she hired was a qualified interpreter.
  3. Defendant’s administrative personnel was told by a friend of the interpreter that the interpreter was qualified.
  4. Advanced Urology did not ignore plaintiff’s request for an interpreter.
  5. Plaintiff simply cannot prove deliberate indifference and therefore cannot recover any monetary damages, whether it be compensatory or nominal.

 

III

Nix Takeaways

 

The takeaways that I mentioned in my prior blog entry with additional modifications and additions, bear repeating.

 

  1. I, with co-counsel, have previously represented culturally deaf individuals (Deaf). From my experience, the culturally deaf can be a little too trusting of the hearing community at times. If you are representing a culturally deaf individual seeking medical care, you absolutely have to insist that he or she not go through with the appointment the minute they realize that a qualified interpreter is not there. They just HAVE TO WALK AWAY IMMEDIATELY. You have to tell the culturally deaf individual to not even engage in the exchange of written notes except for the purposes of saying that he or she needs a qualified interpreter.
  2. The court creates a higher standard for deliberate indifference than what was created in Liese, which we discussed here. It resembles more the deliberate indifference standard adopted by the Seventh Circuit in a case we discussed here.
  3. While the court says effective communication did not occur, they didn’t bring up the Silva I standard, which is whether communication was hindered.
  4. If you are representing a culturally deaf individual in a case like this, it becomes really important to have a table interpreter, an interpreter that acts very much as part of the legal team, who really understands how interpreting can go awry when a qualified interpreter is not involved. Also, be prepared to have an expert talk about the English ability levels of the plaintiff and the importance of ASL given that English ability (with respect to a culturally deaf individual, it is not unusual for such individuals to have English reading skills not higher than fourth grade if that).
  5. Prior to a culturally deaf individual walking away from the appointment, it is really helpful if the culturally deaf individual makes clear in writing that the interpreter is not qualified and that they will not take any medical care offered until a qualified interpreter is present. Make sure the person keeps a copy of that written notification as well.
  6. Depending upon your state, there may be informed consent concerns as well when a qualified interpreter is not provided for a culturally deaf individual. In the case that I served as co-counsel on, we had both informed consent claims as well as ADA claims in our complaint.
  7. Since the interpreter was not a qualified interpreter and not bound by an interpreter code of ethics, there may be a breach of confidentiality claims against the physician in this kind of scenario.
  8. Another problem I have with this opinion is that it rewards ignorance of the culturally deaf community. Anybody with familiarity of the culturally deaf community would not have hired this particular interpreter in the first place and would have instantly known that the interpreter was not qualified. Yet under this decision, the defendant is rewarded for their ignorance.
  9. One wonders if an en banc hearing would not be requested in light of the panel ignoring Silva I and its narrowing of Liese. I did not see anything in the docket to suggest that this is happening, at least not yet.
  10. The decision is unpublished. Even so, while its precedential value is limited, attorneys are going to look at this decision for guidance. Also, depending upon the jurisdiction there are ways that even an unpublished decision could be cited. I suppose the nature of an unpublished decision could be one reason why people focusing on disability rights might hope that an en banc review is not sought. That said, the 11th Circuit is generally very pro-disability rights and how this decision rewards ignorance of the culturally deaf community is not a good thing. Also, the decision severely narrows Silva I and Liese. So, maybe an en banc rehearing request is in order and might be successful.

 

IV

Heck Facts

 

  1. Plaintiff asserted claims for violation of the Tennessee Disability Act and the ADA based upon termination of her employment. In particular, she alleged that she was discriminated against because of her asthma and increased risk of serious illness from Covid-19 and that the defendant discharged her rather than accommodate her by limiting her risk of exposure. She sought compensatory damages for lost wages and emotional distress.
  2. Tennessee has a Covid-19 recovery act containing the following salient provisions: 1) a clear and convincing evidence standard; 2) requirement of a verified complaint pleading with specific facts from which a finder of fact could reasonably conclude that the injury was caused by the defendant’s gross negligence or willful misconduct; 3) requirement of a certificate of good faith from plaintiff’s counsel saying that he or she has consulted with a Covid-19 knowledgeable physician duly licensed to practice in Tennessee or in a neighboring state and that the physician believes the Covid-19 was caused by the alleged act or omission of the defendant. Failure to meet the requirements laid out in this particular paragraph of the blog entry results in granting a motion to dismiss with prejudice.

 

V

Heck Reasoning

 

  1. The Tennessee law does not deprive federal courts of subject matter jurisdiction simply because some of the allegations relate to Covid-19.
  2. Plaintiff’s claims arise from the alleged discrimination and retaliation related to her asthma.
  3. While her request for accommodation related to her increased vulnerability to Covid-19, her claims do not arise from Covid-19 for purposes of the Tennessee law.
  4. The expansive reading of the Tennessee law advocated by the defendant would deprive federal courts of their ability to hear federal claims when there are state legislative procedural hurdles. Such a reading violates the most basic principles of federalism and leads to inconsistent application of federal law and inconsistent access to federal court based upon the forum state’s policy concerning state law claims.
  5. Plaintiff asserts a federal claim, and therefore the federal court plainly has jurisdiction.

 

VI

Heck Takeaways

 

  1. A lot of states have coronavirus liability laws now. This case shows that such laws are not going to bar federal disability discrimination claims nor should they.
  2. The decision denies a motion to dismiss. So, a trial is next. Of course, plaintiff will have to get by summary judgment.
  3. You are going to see a lot of claims dealing with failure to accommodate people who are an increased risk should they get Covid-19, especially in states with anti-mask and anti-vaccine mandates or policy preferences. The EEOC just filed such a claim in Georgia, here, and others are on the way no doubt. In those situations, objective medical science will be critical. Plaintiffs will want to have access to the medical science, which is publicly available, and access to coronavirus experts wouldn’t hurt either.
  4. Individual cases may go differently depending upon the location you are in. For example, if you are in a jurisdiction that is mandating vaccines and mandating mask wearing, the whole accommodation process can go quite a bit differently. In jurisdictions with anti-mask and anti-vaccine mandates/policy preferences, work from home is going to be something that will have to be seriously considered.
  5. Definitely read Chevron v. Echazabal, here, and School Board of Nassau County, Florida v. Arline, here. Both of those cases discussed direct threat and direct threat as discussed in those cases has been incorporated into ADA final regulations, here (title I), here (title II), and here (title III).

Previously, I mentioned that the upcoming Supreme Court term will have two cases before it pertaining to the rights of people with disabilities. One of those cases asks the question of whether disparate impact claims exist under §504 of the Rehabilitation Act. On August 24, 2021, the Ninth Circuit over a dissent said that such claims were allowed in Payan v. Los Angeles Community College District, here. As usual, the blog entry is divided into categories and they are: facts; what happened at the district court level; majority opinion/private right of action exists for disparate impact claims; majority opinion/disparate impact should not have been applied to all claims; dissenting opinion by Judge Lee; and thoughts/takeaways. Of course, the reader is free to concentrate on any or all of the categories.

 

I

Facts (Taken from Opinion)

 

Upon their enrollment at LACC, Payan and Mason each registered for disability accommodations through the college’s Office of Special Services (“OSS”). Payan and Mason’s approved accommodations included tape-recorded lectures, preferential seating, receiving materials in electronic text, and test-taking accommodations, and Mason received additional accommodations in the form of weekly tutoring. Both Payan and Mason use a screen reading software called Job Access with Speech (“JAWS”) to read electronic text. Screen reading software allows blind users to read electronic text by converting electronic text and images into audio descriptions or a Braille display.

 

Despite being granted individual accommodations, Payan and Mason each encountered accessibility problems while taking classes at LACC. While some of these accessibility barriers affected Payan and Mason individually, others affected blind LACC students generally. Plaintiffs categorized these accessibility barriers into the following five general inaccessibility claim categories: (1) in-class materials; (2) textbooks; (3) educational technology; (4) websites and computer applications; and (5) research databases in the LACC library.

 

First, Payan and Mason each took LACC classes in which they were not provided with in-class materials, such as handouts and PowerPoint presentations, in an accessible format at the same time that their classmates received the materials. LACC has a general written Alternate Media Production Policy (“AMPP”) which requires all instructional materials be made accessible to students with disabilities. Despite this written policy and being approved for individual accommodations, Payan took a philosophy course in which his professor did not provide him with class handouts in an accessible format. Similarly, Mason took a psychology course in which the professor utilized a handbook for in-class discussion, but Mason was only provided with a paper copy which she was unable to review. Mason took another psychology class in which the professor lectured using PowerPoint presentations, which Mason was able to download for review after class but which were not accessible because they were not fully compatible with screen reading software.

 

Second, Plaintiffs alleged they were unable to access certain textbooks required for their LACC courses. The AMPP requires that instructional materials purchased from third parties, such as textbooks, be made accessible to students with disabilities, that the college must proactively evaluate the accessibility of its instructional materials, and it establishes a process by which students with disabilities may request inaccessible materials be reproduced to them in an accessible format. Despite this policy and his individual accommodations, Payan enrolled in a math class in which he was not timely provided an accessible version of his textbook. Payan was required to take his math textbook to OSS to have it converted to an accessible format in a piecemeal manner. However, because OSS could not digitize Payan’s textbook quickly enough for Payan to keep up with his course, he received his accessible assignments late and fell behind in the course as a result.

 

Third, despite the requirements of the AMPP and his individual accommodations, Payan took multiple LACC courses which utilized inaccessible computer programs to facilitate class work. Payan’s math class required students to complete and submit homework assignments through a computer program called MyMathLab. MyMathLab was not compatible with screen reading software. Because Payan was unable to complete homework assignments using MyMathLab, and because he was not timely provided with accessible textbook assignments, he fell behind in his coursework.

 

Fourth, Plaintiffs identified a variety of accessibility barriers to utilizing LACC’s website resources which impacted all blind students. LACC’s front-facing website, as well as its internal online student portal—operated through a program called PeopleSoft—were not compatible with screen reading software. Plaintiffs put forward evidence that reasonable website programming modifications existed which could resolve these accessibility barriers, and LACCD failed to offer any evidence to rebut or contradict this evidence.

 

Fifth, Plaintiffs identified accessibility barriers in LACC’s library research databases, many of which were not compatible with screen reading software. Despite the AMPP and her individual accommodations, Mason was unable to complete a research paper for a psychology course because the professor required use of an inaccessible research database for the assignment. Although some of the library’s online databases were accessible to blind students, the library did not conduct regular accessibility checks and did not test programs for accessibility before the library acquired them, as the AMPP required. Instead, accessibility was only tested when a blind student reported an accessibility problem.

 

II

What Happened at District Court Level (Taken from Opinion)

 

After the district court instructed Plaintiffs to reframe their disability discrimination arguments through a disparate impact framework only, it granted summary judgment for Plaintiffs on the claims related to Payan’s access to his math textbook and MyMathLab assignments. The district court also found that LACCD discriminated against blind students as a matter of law based on the accessibility barriers present in the LACC websites and library database, but it declined to impose liability at that time because Plaintiffs had not yet met their burden to show reasonable modifications existed to remedy this discrimination.

 

After a two-day bench trial on liability, the district court additionally found that LACCD violated the ADA and Section 504 by providing Mason with an inaccessible handbook in her psychology class and through its use of the inaccessible LACC website and library databases. Then, after a three-day jury trial on damages, the jury found LACCD’s discrimination against Payan was deliberately indifferent and awarded $40,000 in compensatory damages to Payan but no damages to Mason. Following the bench and jury trials, the district court entered a permanent injunction and final judgment in favor of Plaintiffs. The permanent injunction requires LACCD to: (1) come into compliance with its AMPP; (2) evaluate its library databases for accessibility and establish means of alternate access to inaccessible databases for blind students; (3) designate a Dean of Educational Technology; (4) make the LACC website and embedded programs accessible to blind students; and (5) assess educational materials for accessibility before acquisition and to establish means of providing accessible alternative materials to blind students in a timely manner. LACCD appealed, and Plaintiffs conditionally cross-appealed.

 

III

Majority Opinion (Judge Tallman)/ Private Right of Action Exists for Disparate Impact Claims.

 

  1. Since 1996, the Ninth Circuit has recognized disparate impact claims in title II of the ADA cases.
  2. In 2001, the Supreme Court in Alexander v. Sandoval, here, held that no private right of action exists to enforce the disparate impact discrimination regulations promulgated under title VI of the Civil Rights Act of 1964.
  3. A close read of Sandoval reveals that title VI’s limitation to only intentional discrimination is not based upon the statutory text of the Civil Rights Act. That is, Sandoval relied on two prior United States Supreme Court cases considering the scope of title VI. Accordingly, the similar statutory language in §504 and the ADA does not create an analogous limitation on disparate impact disability discrimination claims. So, Sandoval did not upset the historical understanding that §504 and the ADA were specifically intended to address both intentional discrimination and discrimination caused by thoughtless indifference or benign neglect, such as physical barriers to access public facilities.
  4. The ADA must be construed broadly in order to effectively implement the ADA’s fundamental purpose of providing a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.
  5. Following Sandoval through the equal protection jurisprudence governing disability-based classifications, you get to the same place. That is, legal classifications based upon disability are subject only to rational basis review unlike race-based distinctions.
  6. Unlike title VI’s prohibition of race-based discrimination, equal protection jurisprudence surrounding disability-based classifications permits civil rights statutes to prohibit disparate impact discrimination.
  7. Nothing in Sandoval disturbs prior case law saying that disparate impact disability discrimination claims remain enforceable through a private right of action.

 

IV

Majority Opinion (Judge Tallman)/The Disparate Impact Framework Should Not Have Been Applied to All of Plaintiff’s Disability Discrimination Claims

 

  1. Title II of the ADA prohibits public entities from discriminating on the basis of disability. §504 does the same with respect to recipients of federal funds.
  2. The two laws get interpreted in the same way because there is no significant difference in the analysis of rights and obligations created by the two acts.
  3. To state a prima facie case for violating title II of the ADA, a plaintiff has to show: 1) he is a qualified individual with a disability; 2) he was either excluded from participation in or denied the benefits of a public entity’s services, program, or activities, or was otherwise discriminated against by the public entity; 3) such exclusion, denial of benefits, or discrimination was by reason of his disability.
  4. The elements of a prima facie case under §504 are similar with the additional requirement that a plaintiff has to prove that the program receives federal financial assistance.
  5. The only question at issue in this case is whether defendant’s action, practices, and policies discriminated against the plaintiffs.
  6. Prohibited forms of disability discrimination include, 28 C.F.R. §35.130(b)(1), denying individuals with disabilities the opportunity to participate in a program or service, providing an unequal opportunity to participate in the program or service, and providing the entity’s program or service in a way that is not effective in affording the individual with the disability an equal opportunity to obtain the same result as provided to others.
  7. 28 C.F.R. §35.130(b)(7)(i) requires public entities to make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that the making the modifications would fundamentally alter the nature of the service, program, or activity.
  8. Disability discrimination claims can be based on any of three different theories of liability: 1) disparate treatment, 2) disparate impact; or 3) failure to make a reasonable accommodation.
  9. In a footnote, the court notes that “reasonable modification,” (title II, title III), creates identical standards to the ADA’s title I term “reasonable accommodation,” and the two may be used interchangeably.
  10. In a disparate impact claim, a plaintiff must allege that a facially neutral government policy or practice has the effect of denying meaningful access to public services to people with disabilities.
  11. To state a reasonable accommodation claim, a plaintiff need not allege either disparate treatment or disparate impact.
  12. If a public entity’s practices or procedures deny people with disabilities meaningful access to its programs or services causing a disparate impact, then the public entity is required to make reasonable modifications to its practices or procedures.
  13. Although failure to make a reasonable accommodation and disparate impact are two different theories of a title II claim, a public entity may be required to make reasonable modifications to it facially neutral policies that disparately impact people with disabilities.
  14. The difference between the two theories is that a reasonable accommodation claim is focused on an accommodation based on an individualized request or need, while a reasonable modification in response to a disparate impact finding is focused on modifying a policy or practice to improve systemic accessibility.
  15. Ninth Circuit case law provides no justification for limiting disability discrimination claims to only the failure to accommodate theory of liability in the higher education context. That said, the district court did err in requiring plaintiffs to present all of their claims as disparate impact claims.
  16. Some of the claims in the complaint are true disparate impact claims, such as: 1) allegations pertaining to systemic accessibility barriers and campus websites or the library; and 2) the defendant had facially neutral practices of selecting classroom material from third parties and only evaluating the accessibility of those materials on an ad hoc, complaint-driven basis rather than in compliance with the campus’s own policies.
  17. Where a plaintiff challenges a program’s policy or practice of failing to remedy systemic barriers rather than the individual’s experience with requesting accommodations to address those barriers, this type of claim is more appropriately evaluated under the disparate impact framework than under the failure to reasonably accommodate framework.
  18. Certain claims are specific to the individual plaintiffs in the case and should have been considered through the individual failure to accommodate framework rather than through the disparate impact framework, such as those pertaining to receiving materials and accessible e-text and certain classroom accommodations.

V

Dissenting Opinion by Judge Lee

 

  1. 504 and title II of the ADA statutory claim language prohibits intentional discrimination only and a court must abide by Congress’ policy choice.
  2. The Supreme Court has suggested that the ADA and §504- like title VI of the Civil Rights Act of 1964- do not permit disparate impact claims.
  3. Nothing in either text remotely suggests encompassing a disparate impact theory, which holds that even facially neutral laws are discriminatory if they have an unintended disproportionate effect on certain groups.
  4. Title II of the ADA provides, 42 U.S.C. §12132, that no qualified individual with a disability shall by reason of such disability (emphasis in the dissent), be excluded from participation in or denied the benefits of the services, program, or activities of a public entity, or be subjected to discrimination by any such entity.
  5. The phrase “by reason of,” means “because of,” or “due to.” That is, title II prohibits discrimination only because of or due to disability status. Accordingly, it requires intentional discrimination based upon disability and does not contemplate disparate impact.
  6. 504 is an even clearer case because causation, per 29 U.S.C. §794a, is “solely by reason of.”
  7. The Sixth Circuit has held that §504 does not contemplate a disparate impact theory.
  8. When the Supreme Court has found that a statute prohibits disparate impact discrimination, it has relied on language like “otherwise adversely affect,” or “otherwise make unavailable,” both of which refer to the consequences of an action other than an actor’s intent. No such language appears in §504. So, for better or worse, Congress apparently prohibited only intentional discrimination against people with disabilities. It did not authorize a disparate impact theory and a private right of action should not be inferred.
  9. In Sandoval, the Supreme Court specifically left open whether a disparate impact claims survive under statute analogous to title VI or those directly depending upon it.
  10. In a footnote, the dissent notes that the Supreme Court has agreed to hear a case addressing the question of whether disparate impact claims are available in §504 cases or under statutes depending upon §504.
  11. The 10th Circuit has held that the Rehabilitation Act allows for a disparate impact claim because the Rehabilitation Act has a different aim and was enacted in different contexts from the Civil Rights Act of 1964. On the other hand, the Sixth Circuit has adopted a contrary view.
  12. The ADA contains an explicit mandate that federal regulations adopted to enforce the statute be consistent with the Rehabilitation Act. Indeed, the remedies for violating title II of the ADA are specifically by statute hooked into the Rehabilitation Act.
  13. In Sandoval, the Supreme Court held that §601 (title VI) prohibits only intentional discrimination. Therefore, §602 reveals no congressional intent to create a private right of action to enforce disparate impact regulations. In other words, if title VI does not allow a disparate impact claim, then the Rehabilitation Act cannot allow such a claim either because it derives its remedies and rights from title VI. Same goes for the ADA because title II of the ADA relies on the Rehabilitation Act for its remedies and rights. Such a domino effect is unavoidable because the Rehabilitation Act and the ADA both rely on the same statutory language in title VI for their causes of action, and the Supreme Court has held that it is beyond dispute that title VI prohibits only intentional discrimination.
  14. Any interpretive inquiry begins with the text and structure of the statute and ends once it has become clear that Congress did not provide a cause of action. You start by looking at the rights creating language and structure. If that does not clearly imply the cause of action, the inquiry ends even where regulations provide rights creating language.
  15. 504 only prohibits discrimination against an individual, “solely by reason of her or his disability.” The ADA is “by reason of his or her disability.”
  16. Though the ADA must be construed broadly, it cannot be construed any more broadly than the text of the statute allows.

 

VI

 

Thoughts/Takeaways

 

  1. The majority and dissenting opinion tee up nicely the arguments on both sides as to whether title II of the ADA and §504 of the Rehabilitation Act allow for disparate impact claims.
  2. The majority opinion is not correct when it says that persons with disabilities are always in the rational basis class when it comes to equal protection jurisprudence. They most certainly are not per Tennessee v. Lane. In fact, it is a case by case analysis. As far as I know, persons with disabilities are the only group of people whose actual equal protection status depends upon the individual facts of the case.
  3. You see all the time the statement that there are no significant differences in the rights and obligations under §504 and title II of the ADA. That is only sort of correct. As noted in this opinion, causation is very different. Also, the notion of program accessibility doesn’t get the same treatment between the two laws. For example, title II of the ADA allows for program accessibility. However, depending upon the type of entity you are, under §504 of the Rehabilitation Act all of your operations may need to be meaningfully accessible to persons with disabilities. See 29 U.S.C. §794(b)(1),(2).
  4. The majority opinion seem to suggest that causation under §504 and title II of the ADA are the same. As the dissent notes, that isn’t the case.
  5. Reasonable modifications and reasonable accommodations do mean the same thing. It has always been a mystery to me why “reasonable accommodation,” appears in title I and “reasonable modification,” appears in title II and title III. That there is a difference at all, is used by the majority to suggest a reason as to why title II of the ADA allows for a disparate impact claim, which I find to be a very interesting approach.
  6. The majority opinion does a nice job of explaining the difference between what situations are disparate impact claims and what situations are traditional failure to accommodate claims. For a real world example, one has to look no farther than the Georgia voting bill that was signed by the governor making it a crime for other people standing in line to give food or water to another person standing in line. Such a policy, seemingly neutral on its face, definitely has a disparate impact on persons with disabilities.
  7. The trend is absolutely clear that failure to accommodate is a separate cause of action, though I know not all courts agree with that.
  8. I have absolutely no idea how the Supreme Court is going to approach the case it has before regarding whether §504 allows for a disparate impact claim. As I mentioned previously, the Supreme Court has been very good for persons with disabilities outside of the employment context. The strongest arguments I see against the allowance of disparate impact claims is the causation language in title II of the ADA and especially the Rehabilitation Act. On the other hand, the argument that the ADA and §504 have different aims and arise in different contexts than traditional title VI claims, makes intuitive sense to me as well. I look forward to reading the oral argument in the disparate impact case when it gets to the United States Supreme Court. I am not going to make a prediction on any possible outcomes.

Today’s blog entry is something I came across by way of my subscription to the Wait A Second blog, which focuses on all things in the Second Circuit and can be found in my blogroll. The case of the day is Winegard v. Newsday LLC decided by United States District Court of the Eastern District of New York on August 16, 2021. It talks about whether a place of public accommodation can be an Internet based business. As you may recall, there are several lines of jurisprudence regarding this: never; always; gateway; if one of the businesses in 42 U.S.C. §12181(7) is involved; and never but that isn’t the question (11th Circuit). This particular case shows how the never line of cases is beginning to make a comeback. Will it last? Personally, I don’t think so providing attorneys start making use of South Dakota v. Wayfair, which we discussed here. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning; important footnotes; and thoughts/takeaways. Of course, the reader is free to concentrate on any or all of the categories.

 

I

Facts

 

Plaintiff is a deaf individual residing in Queens New York. Newsday distributes newspapers throughout New York, but it operates no physical retail operations. The newspaper is also available on Newsday’s web site along with other web-based content. Plaintiff alleged that he visited Newsday’s website to watch various videos, including programs entitled “Dumpling Craze Hits Long Island: Feed Me TV,” and “High And Mighty: Feed Me TV,” but was unable to view them because the videos lack close captioning. Defendant moved to dismiss for failure to state a valid ADA claim.

 

II

Court’s Reasoning

 

  1. At common law, the phrase “public accommodation,” referred to a subset of businesses that had heightened duties of service-often relating to lodging and transportation-because of the public nature of their physical facilities.
  2. Antidiscrimination statutes like the ADA have used the term “place of public accommodation,” for over a century. In fact, you can find the phrase in a New York statute passed in 1895.The ADA’s definition of “public accommodation,” is consistent with that history.
  3. Of the 50 examples found in 42 U.S.C. §12181(7), at least 49 of them are indisputably physical places.
  4. Congress could have said, “all businesses operating in interstate commerce,” or “retail,” or “service,” operations. However, it didn’t do that and chose to focus on physical places instead. If Congress had wanted to capture business operation rather than places, it could have said as much but didn’t. Congress could easily have also included newspapers but didn’t. All of this demonstrates Congress’s decision to apply the ADA’s antidiscrimination provision to physical places rather than to business operations generally.
  5. Countless types of businesses operating outside of brick-and-mortar premises existed in 1990, including some that had been in operation for decades. For example, the Sears Roebuck catalog dated back to 1888. If Congress had wanted to, it could easily have required catalog to be printed in braille and TV shows to include closed captioning by including such media within the scope of the phrase, “public accommodation.”
  6. While it is true that each of the categories in 42 U.S.C. §12181(7) has a residual clause, that clause must be read in light of the specific list it follows. Ejusdem generis teaches that a residual clause’s meaning should be confined to the characteristics of the specific items listed before it.
  7. Other Circuits (9th and 11th), have limited 42 U.S.C. §12181(7) to physical places.
  8. Dictionaries overwhelmingly define “place,” to mean a physical location.
  9. United States Supreme Court in a non-disability discrimination case talked about a physical place being a public accommodation. Since that decision came down after the ADA in 1990, places of public accommodation are presumptively physical locations in federal court.
  10. PGA Tour v. Martin also emphasized a physical location.
  11. No allegations exist that Newsday operates public-facing physical places where newspapers or any other goods or services are sold.
  12. Cases saying that a website is a place of public accommodation in its own right just don’t add up according to this particular judge because it would mean allowing considerations of policy to divorce from the statute’s text and purpose to override its meaning, which is not something a court should do.

 

II

 

Important Footnotes

 

In law school, they teach you to always read the footnotes. In law school anyway, I tried not to do that because it meant a lot of additional time. As a lawyer, that is a mistake and this case illustrates the point. Let’s take a look at several of the footnotes.

 

  1. In footnote 1, the court says that “travel service,” appears to refer to travel agencies and to facilities, such as American Express counters, offering traveler’s checks, currency-exchange services and the like. Those businesses routinely operated out of physical facilities when the ADA was adopted and still do to a lesser extent.
  2. In footnote 2, the court refers to the District Court decision in National Association of the Deaf v. Netflix when that court stated that since web-based services did not exist when the ADA was passed in 1990, web-based services could not have been explicitly included in the Act.
  3. In footnote 3, the court said that Congress knew well by 1990 that the Internet was coming. The Senate held hearings in 1989 to explore the potential of a national information superhighway. Even so, the ADA wasn’t written to account for that.
  4. In footnote 11, the court notes that the ADA was amended in 2008 and that Congress could have easily amended the definition to clarify the inclusion of the Internet with the 2008 amendments but it did not do so.
  5. In footnote 12, the court says the maxim noscitur a sociis says that individual items appearing in the list should be read to share common attributes.
  6. In footnote 14, plaintiff argues that Newsday has its own television and video Internet studio in addition to its publishing and advertising production facilities and offices. However, plaintiff does not allege that those facilities are open to Newsday’s customers, or that Newsday sells it newspapers or any other goods or services that those locations.
  7. In footnote 16, the court notes that plaintiff is a serial plaintiff having filed at least 44 ADA lawsuits in the Eastern District of New York alone as of August 16, 2021.
  8. In footnote 17, the court says that while many district courts within the Second Circuit have held that websites qualify as a place of public accommodation under the ADA, the reasoning goes too far. Absent some limiting principle, their reasoning means that every operator of the website-every blogger, vlogger, and the like-must provide closed captioning and any other accommodation required by the ADA. The argument that such a rule would only apply to websites offering goods and services also does not wash because the textual basis for such a limitation in the ADA is unclear.

 

III

Thoughts/Takeaways

 

  1. The two strongest arguments in favor of the never line of cases are that Congress did not add phrasing that would include the Internet in 2008, and the term “place,” presumptively refers to physical places.
  2. The counterargument is that the United States Supreme Court has recognized technological evolution in other contexts, such as free speech, which we discussed here, and taxation, which we discussed here (As we know, South Dakota v. Wayfair is very recent. So by the logic of the court in this opinion, the term place would not presumptively refer to physical locations).
  3. Very curious why South Dakota v. Wayfair was not raised in this decision. For lawyers advocating that the Internet is a place of public accommodation, failure to raise South Dakota v. Wayfair may border on malpractice (see this blog entry discussing legal malpractice). Perhaps, on appeal plaintiff will raise S.D. v. Wayfair then.
  4. DOJ in the Trump administration, as we discussed here, strongly suggested that they were going to take the approach of Internet sites having to be accessible if it was of the type of business operating in 42 U.S.C. §12181(7). I would suspect that under a Biden administration that approach would continue.
  5. There clearly is a circuit court split already (9th-Gateway v. 11th never but that isn’t the question) and more to undoubtedly come. When it goes to the Supreme Court, all bets are off with respect to the never line of cases succeeding, particularly in light of South Dakota v. Wayfair. To my mind, the Supreme Court would be more likely to go with the gateway theory or, relying on South Dakota v. Wayfair, with the of the type of business theory.
  6. That plaintiff is a serial plaintiff should not affect the analysis. However, it isn’t unusual for a court’s analysis to be affected by that fact in subtle ways, sometimes significantly so.