Airplane, Aircraft, Take Off, Flight

 

Colonel Johnny

 

Please find below, a continuing legal education webinar that I am doing in the first week of May. It has two parts to it. The first part will be discussing the intersection of the Airline deregulation act, the air Carrier Access act, the ADA, and state negligence laws. The second part of it will be discussing the DOT final rule concerning animals on planes and how it compares to the ADA and the FHA. If you are a Georgia attorney, CLE will be submitted for you. All you have to do is put in your bar number at the registration link. If you are not an attorney or you are an attorney licensed in another state, just put in “N/A” in the bar number box. If you are an attorney licensed in another state and want CLE, you will have to submit this on your own to your respective state bars. Hope everyone can join us.

Aviation Law Section | Upcoming CLE

Section Members:

Make plans now to join the Aviation Law Section for a CLE event in May.

Topic: The Intersection Between the Americans with Disabilities Act and Commercial Airline Travel

Date/Time: May 5, 2021 from 12 – 2 p.m.

CLE: 2 hours of trial CLE credit pending

The Aviation Law Section of the State Bar of Georgia will sponsor a two hour webinar featuring William Goren and chaired by Alan Armstrong, dealing with the intersection of the law as it relates to the Americans with Disabilities Act (“ADA”) and the duties and obligations of air carriers holding certificates of authority to engage transportation by air under Part 121 of the Federal Aviation Regulations. Mr. Goren has extensive experience in the area of ADA and brings a wealth of knowledge relating to this timely and interesting topic. This event is free and materials will be emailed prior to the event.

Please mark your calendars and make plans to attend this interesting and informative webinar.

Click here185196191201209206 to register. Please note, you must register prior to the day of the event. After registering, Zoom will email the information needed to join the day of the webinar. If you are not a member of the State Bar of Georgia, please enter “N/A” when asked for your Bar number during the registration process.

Alan Armstrong, Chair
Aviation Law Section
State Bar of Georgia

 

Today’s blog entry takes a page from Richard Hunt and how he often blogs in his accessibility defense blog. That is, I’m going to briefly summarize a few cases all at once. That way, I will clear out some of the backlog in my blogging pipeline. I was having trouble finding a case to take a deep dive into, and so I decided to take this approach. Even though the approach is different than usual, I still offer takeaways in the discussion.

 

I

Gloeckner v. Kraft-Heinz Foods Company185185194199199199 decided by the District Court of Oregon on March 9, 2021. The key for this case is overtime can be an essential function of the job. However even if it is an essential function of the job, the question is whether the person can perform the essential functions of the job with or without reasonable accommodations. Defendant also failed to engage in the interactive process with respect to exploring reasonable accommodations with respect to overtime. The takeaways here are always engage in the interactive process. Also for every essential function of a particular job, the question is whether that function can be performed with or without reasonable accommodations.

 

II

Reyazuddin v. Montgomery County, Maryland186186195200200200, a published decision decided by the Fourth Circuit on February 24, 2021. Here after receiving a jury verdict in the plaintiff’s favor but receiving nothing in compensatory damages, the defendant transferred the plaintiff as she originally desired to another position. The court then denied equitable relief on that basis. Plaintiff then sought attorney fees. Defendants argued that the plaintiff was not a prevailing party because the catalyst theory is not how it works when it comes to attorney fees. The court wasn’t buying it because the plaintiff actually received a favorable jury verdict notwithstanding the plaintiff not getting any compensatory damages. The takeaway here is that what is a prevailing party is more complicated than at first blush. Here while there was no continuing jurisdiction, plaintiff did win a jury verdict. So, plaintiff gets attorney fees as a prevailing party. We have talked before in our blog before about a consent decree rather than a settlement being useful to make sure attorney fees are there if you are on the plaintiff side. See here for example187187196201201201.

 

III

Brown v. Los Angeles Unified School District188188197202202202, a published decision from the Court of Appeal of the state of California for the second Appellate District decided on February 18, 2021. Here, the plaintiff alleged that the school system’s Wi-Fi system was making her sick. The defense moved to dismiss and the trial court granted it, i.e. what California calls granting a demurrer. The appellate court reverses saying that the California disability nondiscrimination law goes further than the ADA and therefore, whether the ADA recognizes getting sick through Wi-Fi is a disability is irrelevant. Also, a failure to accommodate is a separate cause of action. There was a concurring opinion expressing a worry about the proliferation of experts and how allowing a Wi-Fi makes you sick claim to proceed will open the floodgates. The takeaways here are state laws can go further than the ADA. The ADA just sets a floor and not a ceiling. Also, jurisdictions vary on whether a failure to accommodate is a separate cause of action.

 

IV

Bayer v. Neiman Marcus Group, Inc.189189198203203203, an unpublished decision from the Ninth Circuit decided January 26, 2021. Here, plaintiff loses a bench trial and appeals. The Ninth Circuit reverses and remands. What happened in this case is that after the plaintiff returned from medical leave, Neiman Marcus denied his request to modify his work schedule to accommodate his ADA qualifying medical condition. Shortly after that, plaintiff filed an administrative charge with the EEOC alleging failure to accommodate. The same day, Neiman Marcus present Bayer with the mandatory arbitration agreement. That mandatory arbitration agreement mandated arbitration for administrative charges already filed and also purported to change the applicable statute of limitations. It also gave Neiman Marcus the right to reserve for itself the power to amend, modify, or revoke the agreement terms at any time with 30 days notice to the employee. The plaintiff refused to sign and filed a second EEOC charge claiming that Neiman Marcus interfered with his rights in violation of the ADA. The court agrees and hold that an employer interferes with ADA rights when it knowingly compels an employee with a pending EEOC charge to a false choice of either resigning or consenting to an unconscionable arbitration agreement that specifically targets ADA rights.

The takeaways from this case are several: 1) arbitration agreements should focus on acts in the future and not in the past; 2) arbitration agreements do not get to change existing statute of limitations; 3) unilaterally having the power to amend, modify, or revoke existing arbitration agreements is problematic; and 4) while you hear a lot about retaliation claims, interference claims are also a possibility under the ADA as well. See this blog entry for example190190199204204204.

Today’s blog entry talks about a published decision from the Third Circuit that came down on March 3, 2021. It deals with what happens when a physical or mental exam after a conditional job offer is done in an ADA noncompliant way. The case of the day is Gibbs v. City of Pittsburgh, which can be found here184196206203. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning plaintiff stated a claim for disability discrimination; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

Gibbs applied to be a Pittsburgh policeman. He passed the written test with flying colors and got a conditional job offer. After that, he had to be personally examined by a Pennsylvania licensed psychologist and found to be psychologically capable of exercising appropriate judgment or restraint in performing the duties of a police officer. Two of the psychologists who interviewed him said he was unfit to serve. So, he never got the final offer.

Gibbs filed suit and alleged that the psychologists were biased because they reflectively rejected him after learning of his ADHD diagnosis. They never explored whether his ADHD would interfere with his job. If they had, they would have learned that his ADHD was under control. Further, five other Police Department found him mentally fit and had hired him. He also had never misbehaved as a police officer or as a Marine. While he did misbehave as a child that was before he was treated for ADHD. Finally, Gibbs alleged that Pittsburgh had hired other applicants with similar childhood issues not caused by ADHD. The City of Pittsburgh filed a motion to dismiss, which was granted, and Gibbs appealed to the Third Circuit.

 

II

Court’s Reasoning Stating that Plaintiff Stated a Claim for Disability Discrimination

 

  1. Proving up a disability discrimination case under the ADA or the Rehabilitation Act involves showing: 1) plaintiff is a person with a disability; 2) plaintiff was qualified for the job; and 3) plaintiff suffered discrimination because of his disability.
  2. The ADA protects job applicants if they are regarded as having a disability.
  3. In a regarded as situation, the test is whether the employer perceived the employee as impaired regardless of whether that impairment limits or is perceived to limit a major life activity.
  4. Even though plaintiff’s ADHD was under control, the psychologists allegedly thought it was a handicap and fixated on that in rejecting him.
  5. When a plaintiff claims that job criteria are applied in a discriminatory way, the plaintiff does not need to satisfy the discriminatory criterion in order to bring a discrimination claim. A plaintiff would only have to show that he was qualified based on all the other nondiscriminatory criteria.
  6. A previous case saying that psychological tests for police officers was a valid qualification is of no help to the defense because even in that case the court said that there weren’t any facts that would support a claim of bias. Here, plaintiff has alleged bias.
  7. Detailed evidence is not necessary in a complaint. All a person has to do is give the defense fair notice of his claim and raise the reasonable expectation that discovery will uncover evidence of discriminatory motive. Plaintiff did exactly that through his allegation that once the psychologists learned he had ADHD, they fixated on his childhood misbehavior without considering whether the ADHD was currently under control. Gibbs also claimed that his ADHD was under control and five other police departments thought so as well. Finally, he claimed that Pittsburgh hired other policemen who had likewise misbehaved as a child but did not have ADHD. So if the allegations are true, a reasonable chance exists that discovery will unearth more of it.
  8. The argument that the psychologists were biased and not the city of Pittsburgh so that the city of Pittsburgh gets a free pass does not wash. It doesn’t wash because the ADA prohibits participation in a contractual or other arrangement or relationship that has the effect of subjecting a qualified applicant to discrimination. So, an employer cannot abate its obligations under the ADA by contracting out personnel functions to third parties by way of using preemployment examinations as conclusive proof of an applicant’s mental capabilities. In other words, if the psychologists discriminated against the plaintiff, Pittsburgh is liable for relying on them.
  9. The argument that state law mandates a psychological exam and therefore permitted Pittsburgh to screen out the plaintiff doesn’t apply either because an employer may not shield itself from federal antidiscrimination liability just by saying that it was trying to follow state law. In other words, by virtue of the supremacy clause the demands of the federal Rehabilitation Act or the ADA for that matter do not yield to state laws that discriminate against persons with disabilities. In fact, it works the other way around. So, trying to follow Pennsylvania law is not a defense when federal law says to do so would be discriminatory.

 

III

Thoughts/Takeaways

 

  1. We previously discussed the scheme for disability related inquiries before in our blog, such as here185197207204. Under that scheme, just about anything goes with respect to medical exams after a conditional job offer. Even so, you can’t reject that person with the information received during the course of that physical or mental exam unless you can show that the information received is job-related, consistent with business necessity, and the person could not perform the essential functions of the job with or without reasonable accommodations.
  2. Stereotyping disabilities, even by psychologists, is a dangerous game because it may lead to justifiable regarded as claims.
  3. For regarded as claims, a plaintiff does not have to show that the employer perceived a substantial limitation on a major life activity. All they have to show is that the employer regarded them as having a physical or mental impairment.
  4. In essence, what happened here was a “fitness for duty,” exam. For ADA compliance purposes, the question here is whether the person can perform the essential functions of the job with or without reasonable accommodations and whether the person is a direct threat. Since this is an employment situation, the question is whether the person would be a direct threat to self or to others. Remember, direct threat is a high standard as we have discussed numerous times in our blog, such as here186198208205. In particular, under Chevron v. Echazabal, and is echoed in the implementing regulations of title I, title II, and title III of the ADA, a direct threat finding must be based upon a reasonable medical judgment relying on the most current medical knowledge and/or the best available objective evidence. It also must be based upon an individualized assessment of the individual’s present ability to safely perform the essential functions of the job.
  5. The context of the medical exam matters because, unlike title I, under title II and title III final implementing regulations put out by the DOJ, the DOJ concept of direct threat only applies to direct threat to others and not to self.
  6. A city does not escape liability just because it contracts out with others to perform work and the contractors act in a discriminatory way. In other words, the ADA is a nondelegable duty as we have discussed in this blog entry187199209206.
  7. Whenever you plead an ADA case or Rehabilitation Act case, it is a good idea to allege sufficient facts to put the defendant on notice as to what is going on. With Iqbal and Twombly, relying on notice pleading is never a good idea when it comes to ADA and Rehabilitation Act claims because disabilities are so fact specific.
  8. Just because state law allows for certain procedures does not mean that those procedures get to be carried out in a way that federal law says it discriminatory.
  9. A plaintiff does not have to satisfy job criteria that are applied in a discriminatory way.
  10. The case has implications whenever “fitness for duty,” exams occur. Those types of exam do not always occur in the employment process, such as discussed here188200210207.
  11. Comparatives rarely come into play in disability discrimination cases. However, it was a nice touch here to allege differential treatment those misbehaving as kids without an ADHD diagnosis v. his behavior with an ADHD diagnosis because it shows that the job criteria screened out people with disabilities.
  12. Lots of training needs to be done with the people engaged in “fitness for duty,” exams regardless of whether they are occurring in the employment context or outside of the employment context. In the employment context, the issue is whether the person can perform the essential functions of the job with or without reasonable accommodations without being a direct threat to self or others. If it is being done in the title II context, the issue is whether the individual meets the essential eligibility requirements of the program, services, or activities of the public entity with or without reasonable modifications and without being a direct threat to others. The people performing the medical exam do not get to engage in discrimination on the basis of disability while performing the medical exam.
  13. “Because of,” causation now has a different meaning per Bostock, which we discussed here189201211208.
  14. “Handicapped,” has been out for over 30 years. You want to use “person with a disability,” or “disabled.” I always start with people first and then change to identity first depending upon the individual’s personal preference.
  15. There are a couple of other ADA claims that could be made here. First, under the title II final implementing regulations, 28 C.F.R. §35.130(b)(1)(v),190202212209 the City is prohibited from perpetuating or aiding discrimination by providing significant assistance to anyone discriminating on the basis of disability. Second, one wonders if a title III claim is not available against the psychologists that regarded him as having a disability prevented him from being a police person when they did not explore whether his disability was under control, whether he was qualified, or whether he was a direct threat to self or others.

Today’s blog entry explores an issue that we have not discussed before. It is hard to believe that after 400+ blog entries over eight years that we could find a topic we haven’t discussed. However, that is the beauty of how comprehensive and all-encompassing the ADA is. Today’s case takes on the question of whether acting in a legislative capacity results in complete immunity from any claims of disability discrimination. The United States District Court for the District of New Hampshire holds that it does. As usual, the blog entry is divided into categories and they are: facts of Cushing v. Packard; legislative immunity trumps everything; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts of Cushing v. Packard184189204207

 

Seven members of the New Hampshire House of Representatives and the New Hampshire Democratic Party sued the Speaker of the New Hampshire House of Representatives to allow them to participate in legislative proceedings remotely. Each of the plaintiffs has one or more serious health conditions placing him or her at high risk for severe illness or death should he or she contract Covid-19.

The New Hampshire Constitution states that the House has the power to set its rules of proceedings. House Rule 65 states that if a given procedure is not governed by a constitutional provision, another House rule, or “custom, usage, and precedent,” the procedure shall be derived from the 2020 edition of Mason’s Manual of Legislative Procedure. Rule 786 of the 2020 edition of Mason’s Manual provides that absent specific authorization by the Constitution or adopted rules of the body, remote participation for session by members of the legislative body is prohibited.

In the fall of 2020, members of the House twice attempted to amend the House rules to permit remote participation of how sessions. At the December 2020 House session, one of the representatives proposed an amendment to the House rules that would require the Speaker to permit members upon request to participate remotely in committee meetings and legislative sessions. The House voted on and rejected that proposal. At the January 21, 2021, House session, another amendment to the House rules was proposed that would have explicitly permitted virtual meetings of the full House. The House voted on and rejected that proposal as well.

Despite numerous efforts by the plaintiffs to get the Speaker to change his mind, the Speaker did not grant any members requests for remote participation. He stated that the House has not adopted a rule allowing it to meet remotely, either wholly or in part, and until such a time of the members adopt such a rule, the House was obligated to meet in person.

On February 15, plaintiffs filed this action against the Speaker arguing that his action violated title II of the ADA, Rehabilitation Act, and federal and state constitutions. They also filed simultaneously a Temporary Restraining Order or preliminary injunction focusing solely (emphasis mine), on title II of the ADA and the Rehabilitation Act.

 

II

Legislative Immunity Trumps Everything

 

  1. State legislators have absolute immunity from suit for legislative acts.
  2. Legislative immunity shelters individual legislators from the distractions and hindrance of civil litigation so they can perform the legislative duties without undue interference from federal lawsuits.
  3. The time and energy required to defend against the lawsuit are of particular concern when considering the part-time citizen legislator, which is the case in New Hampshire.
  4. Legislative immunity operates to prevent courts from intruding into areas constitutionally reserved to the legislative branch.
  5. Whether legislative immunity applies in a particular case does not depend on the official’s identity or even on the official’s motive or intent, rather it depends upon the nature of the act in question.
  6. Legislative immunity applies to acts forming an integral part of the deliberative and communicative process by which legislators participate in its proceedings and consider legislation.
  7. Legislative immunity also applies to matters the Constitution places within the jurisdiction of either House.
  8. Legislative immunity only covers actions that are not casually or incidentally related to legislative affairs.
  9. A rule dealing with the very conditions under which legislators engage in formal debate is part and parcel of the legislative process, and the acts of House officials in enforcing it are therefore fully protected against judicial interference by the doctrine of legislative immunity.
  10. A legislative body adopting a rule that is not invidiously discriminatory on its face and that bears upon its conduct of legislative business necessitates the doctrine of legislative immunity applying to officials who do no more than carry out the will of the body by enforcing the rule as part of their official duties. That includes rules regulating the very atmosphere in which lawmaking deliberations occur.
  11. Plaintiffs did not identify any constitutional provision or House rule specifically authorizing remote participation in its sessions, and the court was unaware of any such provisions or rules.
  12. Even though the House has permitted remote participation by members at committee meetings throughout the pandemic, plaintiffs did not identify a custom of remote participation in floor sessions of the House. In fact, House sessions have been in person since the onset of the Covid-19 pandemic.
  13. The rule prohibiting remote participation in House sessions regulate the very atmosphere in which lawmaking deliberations occur.
  14. Rule 786 is not invidiously discriminatory on its face as it applies equally to all members of the House.
  15. In denying individual plaintiffs request to participate remotely in House sessions, the Speaker did no more than enforce a rule that goes to the very conditions under which legislators engage in formal debate.
  16. In the First Circuit, legislative immunity applies regardless of whether the plaintiff seeks prospective relief or damages.
  17. Legislative immunity applies to acts and not actors.
  18. Absolute legislative immunity is justified and defined by the function to protect and serve not by the person to whom it attaches.
  19. Many cases hold that legislative immunity applies to suit for prospective relief because that furthers a key goal of the doctrine, which is protecting those who exercise a legislative function from distractions and costs of litigation.
  20. Since legislative immunity is a creature of federal common law, there is no reason to conclude that it would apply in §1983 actions but not to others absent abrogation of legislative immunity by Congress.
  21. The court isn’t persuaded that an intent to abrogate legislative immunity can be inferred from an intent to abrogate sovereign immunity.
  22. The plaintiff did not provide and the court could not find any case holding that legislative immunity does not apply to title II or Rehabilitation Act claims. In fact, several courts have applied legislative immunity to bar title II and Rehabilitation Act claims, including some seeking injunctive relief.

 

III

Thoughts/Takeaways

 

  1. Interesting use by the court of the phrase “serious health conditions,” because that phrase is an FMLA term and not an ADA term.
  2. We previously discussed a case, here185190205208, from the 11th Circuit holding that sovereign immunity did not apply to legislative streaming on the Internet. One of the things that case said was that it didn’t make sense for Congress to validly abrogate sovereign immunity to protect the rights of students with disabilities to get an education but it could not do the same with respect to student participating in the democratic process. That statement by way of analogy certainly applies to persons with disabilities who want to be legislators and to their constituents that want to see them do a good job.
  3. Congress previously identified in 42 U.S.C. §12101186191206209(a)(3) discrimination in voting and in public services as one of the reasons for the ADA in the first place.
  4. The burden of allowing the legislators to remote in would remove a complete barrier to their participation and could be accomplished with limited cost and efforts.
  5. The legislators are seeking equal footing with the rest of the nondisabled legislators.
  6. Facially neutral policies, as we discussed here187192207210, can violate the ADA when those policies unduly burden persons with disabilities even when those policies are consistently enforced.
  7. What strikes me as an interesting choice by the plaintiffs is that they did not seek a temporary restraining order on the ground that the Speaker’s actions violated the 14th amendment to the U.S. Constitution. Instead, they only sought a temporary restraining order on ADA and Rehabilitation Act grounds. The reasoning for an equal protection claim would go like this: 1) voting is a fundamental right as would be the right of individuals to select people to represent them; 2) a legislator cannot do their job as a person with a disability if the legislature does not engage in the interactive process to figure out how the legislator can do his or her job with or without reasonable modifications; 3) since voting is a fundamental right as is the ability to allow persons with disabilities to run for legislature, the government would need a compelling reason to engage in the facially neutral discriminatory practices; and 4) A compelling reason for the discriminatory action simply can’t be offered, especially since the New Hampshire legislature has already engaged in remote activities
  8. There can be little doubt that sovereign immunity would be waived under the ADA and/or the Rehabilitation Act in this case. There also is little doubt that the plaintiffs would have a strong chance of prevailing on the merits, including proceeding for damages against the Speaker in his official capacity. So, the decision goes too far by giving a get out of jail free card to anyone acting in a legislative capacity even when it is clear that discrimination based upon disability is occurring.
  9. I also believe that the 14th amendment argument is quite a strong one. True, the equal protection class for persons with disability depends upon the circumstances. However, here you have the fundamental right of voters to choose their elected representatives. You also have the right of people to participate in the legislative process. So, at the very least the government would need a good reason if not a compelling reason to deny the remote access.
  10. What is next for the case? Could the denial of the TRO be appealed? The First Circuit directly addressed that question in the case of Calvary Chapel of Bangor v. Mills188193208211 decided on December 22, 2020. In that case, the First Circuit, which includes New Hampshire, said that the denial of a temporary restraining order can be appealed if all of the following are true: 1) the refusal of a temporary restraining order has the practical effect of denying injunctive relief; 2) the refusal of the temporary restraining order would likely cause serious if not irreparable harm; and 3) the denial of the temporary restraining order can only be effectually challenged by means of an immediate appeal. It is up to the plaintiff to carry the burden of persuasion on each of the elements.
  11. The first Calvary factor is clearly satisfied as the denial of the TRO was issued after a full adversarial hearing and no further interlocutory relief is available in the absence of an immediate review. By holding that legislative immunity trumps everything, a preliminary injunction on title II or Rehabilitation Act grounds is not going to happen.
  12. The second Calvary factor is clearly satisfied as well because the lack of immediate appealability would cause serious harm as the legislators with disabilities cannot do their job on behalf of the constituents that elected them.
  13. With respect to the third factor, a strong argument can be made that the third factor is also satisfied because: 1) the court’s denial of the temporary restraining order did result in an irreversible or meaningful shift in the relationship between the parties; and 2) the effect of the denial is not of a modest temporal duration.
  14. Calvary also says that public officials do not have free reign to curtail individual constitutional liberties during a public health emergency.
  15. In checking to see where the status of the case is, I do not see an appeal filed as of yet. The decision came down on February 22, 2021, and so an appeal may yet happen. If I am on the plaintiff’s side, I definitely appeal the denial of the TRO. There would be a good chance that the First Circuit would hear the matter because of the applicability of the Calvary factors coming down on the side of the plaintiffs. If it got to the Supreme Court of the United States, I wouldn’t be afraid to go before them as this is the type of case they may prove very receptive to for a variety of reasons. Keep in mind, persons with disabilities have done very well outside of the employment context and the title II and Rehabilitation Act claims here are very strong. Also, this configuration of the United States Supreme Court enjoys letting other branches of government know when they have gone too far. Finally, fundamental constitutional rights are involved here, and I like the strength of the equal protection arguments as well.

Today’s blog entry deals with two different cases and both of them deal with standing. The first case, Smith v. Golden China of Redwing, Inc., decided by the Eighth Circuit on February 17, 2021, which can be found here185186201204204, is the appeal of a case that we blogged on previously, here186187202205205. We won’t spend a lot of time on Smith. Suffice to say, that the Eighth Circuit dismisses the case without prejudice because they found that the plaintiff’s allegations of intent to return were not shown with sufficient specificity even after discovery occurred. For standing to be had, specificity is needed and not general and conclusory statements, especially after discovery has occurred.

The second case is Langer v. Manny Moe and Jack decided by the Northern District of California on January 15, 2021, which can be found here187188203206206. Richard Hunt previously wrote a summary of this case on his blog. As readers of my blog know, it isn’t unusual for me to blog on something that Richard has already blogged on if I feel like I can offer a different perspective. This is one of those situations. The facts of Langer are pretty straightforward. What you have here is a hard of hearing individual who went to the Pep Boys website. The website had videos but no captioning. The hard of hearing individual sues because he is not able to access the videos and thereby obtain the full use and enjoyment offered by Pep Boys with respect to its facilities, goods, and services. Pep Boys defends on the grounds that plaintiff’s claims were mooted by the launch of an entirely new website. They also defended on the grounds that the plaintiff lacked standing. The court finds that the claims were not moot but that the plaintiff lacked standing for the reasons to be explored below. As usual, the blog entry is divided into categories and they are: case is not moot; standing; and thoughts/takeaways. Of course, the reader is free to concentrate on any or all of the categories.

 

I

Case Is Not Moot

 

  1. Courts are more reluctant to find that in ADA plaintiff’s claims are mooted where the alleged barriers are not structural in nature v. when they are structural in nature because nonstructural barriers are more likely to recur.
  2. The Supreme Court has carved out an exception to mootness for acts that are capable of repetition yet evading review.
  3. In the case of a website lacking closed captioning for their videos, a defendant could easily remove any particular video immediately after a lawsuit is filed in order to moot the plaintiff’s claim. Then, the same defendant could also continue to upload such videos with impunity or fail to implement adequate safeguards to prevent future violations.
  4. When considering whether a violation is likely to recur, courts need to consider the bona fides of the express intent to comply, the effectiveness of the discontinuance, and the character of past violations.
  5. While it is true that testimony from Pep Boys indicated that Pep Boys has been developing an updated website for 18 months prior to beginning this litigation and that Pep Boys undertook extensive effort to ensure its website complied with WCAG, that testimony lacked some key information, such as: 1) the testimony was that the previous website was WCAG compliant and yet Pep Boys conceded that the video the plaintiff viewed on the old website did not have closed captioning; 2) the testimony did not explain whether uploading that video was a one time lapse in an otherwise compliant policy and if so, why Pep Boys failed to identify it; 3) the testimony did not say whether or how many other videos lacked closed captioning prior to September 2020, so there is no evidence regarding Pep Boys history of violations or lack thereof; 4) Pep Boys did not present any argument or evidence regarding WCAG standards, such as a declaration from an ADA consultant with expertise in WCAG standards; 5) it is unclear what specialized knowledge the person testifying had with ‘WCAG compliance, particularly since Pep Boys did not explain the relevant WCAG standards; and 6) website compliance with WCAG standards is informative but not dispositive of whether it violates the ADA.

 

II

Standing

 

  1. Ninth Circuit case law establishes that an ADA plaintiff may establish standing either by demonstrating deterrence or by demonstrating an injury in fact coupled with an intent to return to a noncompliant facility.
  2. On their own, websites are not places of public accommodations in the Ninth Circuit per Cullen188189204207207, which was affirmed on appeal here189190205208208. We discussed the Cullen oral argument at the Ninth Circuit in this blog entry190191206209209.
  3. Robles191192207210210, which we discussed here and is the famous Domino’s pizza case that United States Supreme Court denied cert. for, held that websites and applications are covered by the ADA to the extent there is a nexus between the website and the physical location. That is so long as there is a nexus between independent physical locations and its website or web based mobile app, discriminatory barriers impeding access to goods and services can give rise to an injury under the ADA.
  4. A plaintiff who fails to allege any connection between the website barriers and a physical location does not have an ADA claim. See this blog entry192193208211211.
  5. Plaintiff does not explain how the alleged violations have a nexus to Pep Boys physical locations. For example, plaintiff does not allege that he intended to visit a Pep Boys location and could not because the website was not accessible. He also did not represent that he was trying to use the website to order goods or services from Pep Boys physical locations. Rather, he merely suggested that the website’s videos are themselves a service that he was prevented from accessing. The claim doesn’t fly because case law makes clear that websites and the services offered on them are not public accommodations absent a nexus to a physical location. So, plaintiff’s allegations that he has difficulty watching a video on Pep Boys website is not sufficient by itself to allege injury under the ADA.

 

III

Thoughts/Takeaways

 

  1. Courts are beginning to fight back against the serial plaintiff, whether architectural drive-by or those who surf websites.
  2. General statements and conclusory statements dealing with a plaintiff’s intent to return are not cutting it in these two cases. In Red Wing, plaintiff testified that he didn’t even like Chinese food and wasn’t planning on going back unless the lawyer he works with directed him to do so.
  3. Just what is a gateway is a bit of a mess. The courts are all over the place as to when a sufficient nexus exist or not. In Langer, you had a hard of hearing individual but without specific allegations about how that hard of hearing individual wanted to use Pep Boys himself, his claim failed.
  4. As I have mentioned here193194209212212 and here194195210213213, I don’t believe the gateway theory for website accessibility will prove to be the ultimate rule in the end. Instead, I believe you are going to be looking at whether it is the of the type of business listed in 42 U.S.C. §12181(7), the ScribD approach, discussed here195196211214214, because of the some 23 different statements made by the United States Supreme Court in South Dakota v. Wayfair, which we discussed here196197212215215.
  5. Mootness in the absence of an expert that can testify as to how the website is complying with WCAG standards may be very difficult to pull off with respect to websites.
  6. WCAG standards continues to be the gold standard. The legal standard is meaningful accessibility. There are times when the WCAG standards still may not result in meaningful accessibility. You may need expert testimony here.
  7. The court puts it well when it says that website compliance with WCAG standards is informative but not dispositive of whether it violates the ADA. On this question, we are still waiting to see what the 11th Circuit will say in the Winn-Dixie case, which has been under review for quite some time now and no one knows how much longer they will take.
  8. If you have videos, make sure they are captioned. Otherwise, you are a sitting duck for litigation.

Today’s blog entry comes to me courtesy of Richard Hunt, who in his blog will often do many briefs of several cases at once. He focuses on title III and the Fair Housing Act, especially from the defense side. However, he did mention our case of the day in one of his blogs, and I thought I go into more depth on it. So, our case of the day is Martinez v. County of Alameda185189210214211 decided on January 12, 2021 by the Northern District of California and written by Judge Hixson. The case involves a blind individual who asked for help with respect to filling out a fictitious name form because she was blind. When the help was refused, she filed suit. As usual the blog entry is divided into categories, which track how the case was laid out. The categories are: facts; title II overview; facially neutral policies; fundamental alteration/undue burden; deliberate indifference; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

On March 29, 2019, Martinez went to the Alameda County Clerk-Recorder’s Office to file a fictitious business name statement for her new small business. Compl. ¶ 13, ECF No. 1. Prior to her visit, she downloaded the form from the acgov.org website and completed the fillable fields using screen access software. Id. ¶¶ 14-15. Because she is blind, she obtained help at home in manually signing the document’s signature line. Id. ¶ 16.

At the Clerk-Recorder’s office, Martinez spoke with an agent at the counter, who told her the form had checkboxes for “LLC” and for “individual,” and that Martinez had checked “individual” and entered her name in that area but had elsewhere indicated she was seeking a fictitious business name for an LLC. Id. ¶ 17. The employee informed Martinez that she would have to check the box for “LLC,” cross out her own name where she had written it and write in the name of her LLC in the relevant area. Id. Martinez asked the employee to assist and enter the information on the form because she was blind, but the employee said she could not assist because it was a legal document that must be completed by the business owner. Id. ¶¶ 18-19. Martinez explained that she herself was the business owner and that she was asking for assistance because she was unable independently to fill out the paper form. Id. ¶ 20. After the employee still refused to assist her, Martinez asked to speak with a supervisor but was told no supervisor was present and she would have to wait to speak with one. Id. ¶ 22. After waiting 45 minutes, Martinez again asked when she might expect to speak with a supervisor, but the employee told her there was still no supervisor available and that she would no longer discuss Martinez’s need for assistance. Id.

Martinez continued to stand at the counter waiting for a supervisor for approximately 20 more minutes. Id. ¶ 23. Finally, Defendant Maria Laura Briones, a supervisor at the Clerk-Recorder’s office, arrived and told Martinez no one could assist because the office required legal documents such as the fictitious business form to be filled out by the business owner. Id. ¶¶ 7, 23. Martinez again explained that she was the business owner and would be completing the form, but she required assistance because she could not complete the form herself. Id. ¶ 24. After Briones again refused her request, Martinez asked under what legal authority she was refusing to assist. Id. ¶ 25. Briones left to speak with Defendant Eva He, the Assistant Clerk-Recorder, and then returned to say that He confirmed no one from the Clerk-Recorder’s office would assist Martinez in completing her form. Id. ¶¶ 6, 26. When asked if He cited any authority for that decision, Briones said there was no legal authority, that she would no longer speak to Martinez, and then walked away. Id. ¶ 26. Martinez left without filing the form. Id. ¶ 27.

On November 14, 2019, Martinez wrote to Defendant Melissa Wilk, the Alameda County Auditor-Controller/Clerk-Recorder, and Alameda County, through its counsel, requesting a modification to the policy denying assistance to blind persons at the Clerk-Recorder’s office. Id. ¶ 30. Through counsel, Defendants responded that any assistance in filling out forms constituted legal advice and would not be provided. Id. ¶ 31

Martinez filed suit and the County of Alameda put forward a motion to dismiss.

II

Title II Overview

  1. 42 U.S.C. §12132186190211215212 provides that no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, program, or activities of the public entity, or be subjected to discrimination by any such entity.
  2. 28 C.F.R. §35.130187191212216213 provides that public entities have to make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability absent a showing of a fundamental alteration in the nature of the service, program, or activity.
  3. To state a claim for discrimination, Martinez has to show: 1) she is a person with a disability; 2) she is otherwise qualified/qualified; 3) she was excluded from participation in, denied the benefits of, or otherwise subjected to discrimination with respect to Alameda County’s services, programs, or activities; and 4) the inclusion, denial of benefits, or discrimination she suffered was by reason of her disability.
  4. No dispute exists as to Martinez being blind and being an otherwise qualified/otherwise qualified individual with a disability. The argument is over whether the discrimination was by reason of her disability. In particular, the County of Alameda claims that their policy is a neutral policy, and therefore no discrimination occurs.

II

Facially Neutral Policies

  1. Facially neutral policies can violate the ADA when those policies unduly burden persons with disabilities even when those policies are consistently enforced.
  2. Martinez pled sufficient facts demonstrating that the County of Alameda’s policy of refusing to assist anyone in completing paperwork disproportionately burdened her as a blind person and denied her meaningful access to Alameda County’s benefits and services.
  3. The exclusion, denial of benefits, or discrimination was by reason of her disability and therefore, constituted a violation of title II of the ADA.
  4. Cases cited by the County of Alameda did not involve a public entity’s failure to effectively communicate information to a person with a disability nor did they involve its policy of refusing auxiliary aids or services necessary for effective communication as alleged here.
  5. Martinez did not allege that the discrimination was because they charged her for filing a fictitious business name, a charge everyone has to pay, rather she alleged that they discriminated against her because of her exclusion from an equal opportunity to participate in, and enjoy the benefits of the County of Alameda’s services, program, and activities.
  6. The County of Alameda simply failed to provide authority or persuasive argument to overcome either: 1) the Ninth Circuit’s own binding precedent regarding facially neutral policies that disproportionately affect individuals with disabilities; or 2) the ADA regulatory requirements to provide auxiliary aids (28 C.F.R. §35.104188192213217214), and services, such as a qualified reader or another effective method, so that the form could be made available to a blind individual.

III

Fundamental Alteration/Undue Burden

  1. Public entities must take appropriate steps to ensure that communications with applicants, participant, and members of the public with disabilities are as effective as communication with others.
  2. Public entities are also required to furnish appropriate auxiliary aids and services where necessary to afford an individual with a disability an equal opportunity to participate in and enjoy the benefits of their services, program, and activities.
  3. Fundamental alteration/undue burthen are affirmative defenses for which the public entity asserting the defense bears the burden of proof.
  4. Determining whether a modification is reasonable or results in a fundamental alteration is an intensively fact-based inquiry.
  5. Case law and the final implementing regulation for title II of the ADA makes clear that whether a request for policy modification auxiliary aid or service results in a fundamental alteration or an undue burden is a fundamentally factual question inappropriate for disposition prior to discovery.
  6. The decision that proposed modification or auxiliary aid or service would result in a fundamental alteration to a public entities program, service, or activity, or results in an undue financial or administrative burden must be made by the head of the public entity or his or her designee after considering all resources available for use in the funding and operation of the service, program, or activity. It also has to be accompanied by a written statement of the reason for reaching that conclusion. 28 C.F.R. §35.164189193214218215.
  7. Even if a fundamental alteration or an undue burden exists, the public entity must still take any other action that would not result in such an alteration and that ensures to the maximum extent possible that individuals with disabilities receive the benefits or services provided by the public entity.
  8. So even if an individual with a disability requested accommodation is not feasible, the public entity still has to take any action to establish equality, or as close as possible to that, between persons with disabilities and individuals without disabilities using the public entity’s services.
  9. There was no form to alter as the plaintiff was seeking help in filling out the form. So, the argument that helping the plaintiff fill out the form would violate the California Government Code’s prohibition on altering records doesn’t wash.
  10. The County of Alameda’s argument that to help the plaintiff fill out the form would constitute the unauthorized practice of law does not wash either because long-standing California precedent holds that acting as a scrivener to perform the clerical service of filling in the blanks on a particular form in accordance with the information furnished by someone is not the unlicensed practice of law in California.

III

Intentional Discrimination/Deliberate Indifference

  1. To seek injunctive relief under title II, a plaintiff only has to allege that she was denied meaningful access to a public entity’s program, services, or activities.
  2. Getting monetary damages under title II of the ADA does involve a showing that the defendant’s conduct constituted deliberate indifference.
  3. Deliberate indifference requires both knowledge that a harm to a federally protected right is substantially likely and the failure to act upon that likelihood.
  4. Knowledge that a harm to a federally protected right is substantially likely is automatically satisfied where the need for such an auxiliary aid or service is obvious or where an auxiliary aid or service is required by statute or regulation.
  5. A qualified reader or other effective method of making the County of Alameda’s paper form available to the plaintiff, or another similar service or action, is explicitly sanctioned by regulation, 28 C.F.R. §35.104190194215219216.
  6. Once a public entity is put on notice of the need for an auxiliary aid or service, a public entity must undertake a fact specific investigation to determine an appropriate aid or service. The particular service will vary in accordance with the method of communication used by the individual; the nature, length, and complexity of the communication involved; and the context in which the communication at taking place. Don’t forget about this blog entry191195216220217.
  7. When determining what auxiliary aids or services are necessary, a public entity must give primary consideration to the requests of individuals with disabilities per 28 C.F.R. §35.160192196217221218(b)(2).
  8. A public entity may not merely speculate that a suggested auxiliary aid or service is not feasible but must determine what auxiliary aids or services are necessary based upon the information gathered from the individual with the disability and, where needed, from qualified experts.
  9. A public entity may not require an individual with a disability to be accompanied by another person. For that matter, it cannot rely upon the accompanying person to facilitate communication with an individual with a disability. 28 C.F.R. §35.160193197218222219(c).
  10. While it is absolutely true that deliberate indifference requires a public entity to act more than negligently, its belief that it was acting in good faith is not sufficient by itself to defeat an allegation that it acted deliberately in failing to adequately investigate or in refusing to provide a necessary auxiliary aid or service.
  11. Plaintiff alleged that the only auxiliary aid or service offered by the County of Alameda was one specifically prohibited by 28 C.F.R. §35.160194198219223220(c), i.e. reliance on a person accompanying her.
  12. The County of Alameda has not alleged any evidence that it undertook any fact specific investigation to determine an appropriate aid or service for the plaintiff. Rather, the County of Alameda merely provides speculative and conclusory assertions that her requested aid or service (being provided a qualified reader or scribe), was not feasible.
  13. Since plaintiff has properly alleged a claim under title II of the ADA, the derivative ADA title V and state law claims survive as well.

IV

Thoughts/Takeaways

  1. People with disabilities, including myself, are business owners.
  2. Undue burden/fundamental alteration is an affirmative defense and the burden is on the public entity alleging it.
  3. The amendments to the ADA mean that the ADA term is “qualified,” rather than the Rehabilitation Act term, “otherwise qualified.” The meaning of the two terms are identical.
  4. Facially neutral policies do not automatically get a pass.
  5. A person does not have to be Deaf, deaf, or hard of hearing to benefit from the effective communication regulations. Here, the person was blind. Also, as an FYI, the hearing loss community disfavors the term, “hearing impaired.”
  6. Unlike title III, the title II effective communication rule requires primary consideration be given to the person with a disability preferred mode of communications.
  7. Filling out a form is communication. That is, an individual is trying to understand what is being communicated to him or her in writing.
  8. You don’t see it litigated a lot, but it is noteworthy that the court cites to the Code of Federal Regulation requiring a public entity’s CEO to sign off on any situation where there is a claim of undue burden or fundamental alteration.
  9. A defendant is going to have a hard time prevailing on a motion to dismiss where they argue that a fundamental alteration/undue burden is involved.
  10. Undue burden is going to be extremely difficult to show because you look to the entire resources of the public entity. It is more likely that fundamental alteration will be an easier defense. While it may be an easier defense than undue burden, that does not mean it would be an easy defense. You basically need to show that the operations of your public entity’s program, services, or activities is going to be turned upside down.
  11. Even if you can show somehow that an undue burden or fundamental alteration exist, you are going to have to do everything short of that to figure out a win-win solution.
  12. Title II of the ADA does not have an interactive process requirement because that is a title I construct. All of the titles of the ADA do require an individualized analysis. See PGA Tour v. Martin195199220224221. This case clearly illustrates that the interactive process is something that title II entities should use even if theoretically they don’t have to. An interactive process between the parties may have enabled a win-win situation if it was used. All public entities, and for that matter I think every entity covered by the ADA, needs to be trained on the do’s and don’ts of the interactive process196200221225222.
  13. Under this opinion, a harm to a federally protected right is substantially likely is automatic if the need for an auxiliary aid or service is obvious. What does obvious mean? As a preventive law matter, you might look to “readily apparent,” with respect to the two inquiries that may be asked when someone is representing their dog as a service animal. See this blog entry for example197201222226223.
  14. The title I term is “reasonable accommodation,” while the title II and title III terms are, “reasonable modifications.” The two terms are identical in their meaning.
  15. Any entity covered by the ADA may want to think twice about denying a reasonable accommodation/modification where that accommodation/modification is specifically listed as a possibility in the Code of Federal Regulations. Same argument where a covered entity insists that a person do something that the regulations say you cannot insist upon.
  16. Even if title II of the ADA doesn’t require an interactive process, it does require a fact specific investigation to determine the appropriate aid or services. How do you determine the appropriate aid or services is hard for me to understand without engaging in the interactive process. I suppose it can be done, but it would not lead to the best results.
  17. Good faith is a defense to deliberate indifference but it is not taken at face value. You have to look beyond face value to the facts. Also, deliberate indifference, which we discussed here198202223227224, is not necessary for injunctive relief.
  18. The unauthorized practice of law argument is interesting. It didn’t work here because the person recording the information is not exercising independent legal discretion.
  19. Exhaustion of administrative remedies is not required for title II claims.
  20. It is mind-boggling to me the amount of money that was spent on litigating this when the accommodations/modifications were so simple and costs so little.
  21. The case went to a jury and the jury ruled in favor of the plaintiff. See here. My thanks to plaintiff’s counsel for updating me on the case.

First, congratulations to the Tampa Bay Buccaneers for winning the Super Bowl Sunday. What an amazing record Tom Brady has developed over the years. Between the Rays, the Lightning, and the Buccaneers, Tampa Bay has become quite the sports town.

 

Turning to the blog entry of the day, last week I attended a webinar as part of the African-American Conference on Disabilities. It was also hosted with the Arizona Center for Disability Law, which is the protection and advocacy group for the State of Arizona. They had an excellent panel consisting of an EEOC attorney, an attorney from the Arizona Center for Disability Law, and a plaintiff employment attorney. The panel talked about title I issues in the context of Covid-19. What set this webinar apart from other webinars that I have attended was that it focused on questions and answers from the audience and much less so on material presented by the attorneys, though there was some of that. With permission, I wrote down all the questions that were asked and received permission to post the questions here, without naming names of course, and turn it into a blog entry. I also added two questions of my own. So, let’s play 21 questions. Finally, there are no categories to this blog entry, rather there are just questions posed and my answers.

 

  1. May an employer require vaccinations? Answer: yes, but it gets complicated. Unless you are a healthcare entity, most management labor and employment lawyers are recommending that you focus on encouraging vaccinations rather than on mandating vaccinations. You can require vaccinations, but you will have to deal with requests for accommodations if a person has a disability that makes getting vaccinated an issue or if the person has a religious objection based upon a sincerely held belief. An open question is just how much encouragement can you offer before it turns into something that is not voluntary, especially if you have a type of wellness plan where the EEOC has said that incentives can only be offered if they are de minimis. A variety of groups are asking the EEOC to clarify when encouragement turns into something involuntary with respect to Covid-19 vaccination.
  2. Do you have to accommodate an employee who does not have a disability but who has a high risk family member? Answer: no. The ADA certainly protects people who associate with people with disabilities even though they do not have a disability themselves. However, those provisions do not require that the person who associates with the person with a disability be reasonably accommodated. That said, we have discussed, such as here185185197198198208, situations where an employer ran into trouble because they did not even engage in the interactive process with a person who associates with a person with a disability. So while you do not have to reasonably accommodate a person without a disability who associates with someone who does have a disability, you do want to engage in the interactive process with an individual to see if something can work. The EEOC also recommends that approach as well.
  3. Is remote work a reasonable accommodation for a person being called back into the office where they have a disability that puts them at risk of Covid-19 or associates with someone with a disability? Answer: see above for the situation where a person associates with someone with a disability. With respect to an individual who has a higher risk if they get Covid-19, the question is going to come down to whether essential functions of the job includes attendance or whether attendance is just a personal preference. Before Covid-19, courts were usually holding that attendance was assumed to be an essential function of the job. Now, that argument simply can’t be made in many cases because the essential functions of the job are being done remotely for quite a period of time already. With respect to figuring out whether attendance is an essential function of the job, I always like to look to the Samper factors, which we discussed here186186198199199209. The better data an employer has that actually working in the office has some added advantage over working remotely, the better off the employer is going to be in arguing that attendance is an essential function of the job and not a personal preference.
  4. Can you treat Covid-19 the same way as you do the flu or mononucleosis. Answer: Well, the question really is to my mind whether Covid-19 is a disability. It very well may be in many cases. A disability is defined under the ADA, 42 U.S.C. §12102187187199200200210(1), as a physical or mental impairment that substantially limits one or more of life major activities, has a record of such an impairment, or is regarded as having such an impairment regardless of whether a physical or mental impairment actually exists. With the amendments to the ADA, it is quite possible that Covid-19 positivity would be a disability. The question is going to be whether the person is substantially limited in a major life activity as compared to most people in the general population. They very well might be. Another question is whether Covid-19 positivity would be a temporary disability not protected under the ADA. A disability of short duration can be an ADA disability. A preventive law step that I like to use is to borrow from the regarded as exception and ask whether the disability is both temporary AND minor. With Covid-19, you have a fair amount of Covid-19 long haulers. So, it can often be debatable whether the disability is temporary. Also, the disability may not be minor either. Again, the temporary and minor standard is something that I am borrowing from the regarded as exception as a matter of preventive law and using something for preventive law purposes is not the same as a legal standard. So where you have a person diagnosed with Covid-19, an employer definitely wants to engage in the interactive process for sure.
  5. Can you require a Covid-19 positive employee to work? Answer: Recently, OSHA came out with guidance on Covid-19, here188188200201201211. So, you definitely want to review that guidance before requiring a Covid-19 positive employee to work, particularly at a worksite.
  6. Can you just go ahead and fire a person who is positive for Covid-19? Answer: that would be a big mistake because Covid-19 positivity may very well be a disability as discussed above. It also may activate the FMLA as well, in addition to other laws passed recently to deal with the coronavirus crisis. Best bet is to engage in the interactive process and seek knowledgeable legal counsel with respect to the variety of laws that are activated by this situation.
  7. What is an undue hardship? Answer: in the title I area, an undue hardship can either be financial or logistical. With respect to financial, the entire resources of the employer are looked at. Accordingly, financial undue hardship is very difficult to show. With respect to logistical undue hardship, the best bet is to borrow the concept of fundamental alteration from title II and title III. In assessing logistical undue hardship, you are looking at whether the reasonable accommodation would fundamentally alter the nature of the position (which would lead to the conclusion that the employee is no longer qualified/otherwise qualified per the ADA), or fundamentally alter the employer’s operations. Remember, an employer does not have to reassign essential functions of any job to someone else. Marginal functions can get reassigned. Utilize the interactive process. If you get stuck, call the Job Accommodation Network, here189189201202202212.
  8. For employees who are deaf or hard of hearing, what about face shields and clear masks? Answer: the OSHA guidance talks about how these may be utilized for such employees. Regardless of whether you read lips, masks are a problem for the deaf and hard of hearing. If the person is a lip reader, it is obvious why masks are a problem. If the person is culturally deaf, masks are still a problem because the face is often used the get context for the signs. One problem you may run into is clear masks and face shields may not be medically rated the same as other kinds of masks that people wear. I just read an article on LinkedIn that Ford is developing a clear mask that can be certified as N95. Such a mask cannot come soon enough as far as I am concerned. Even so, employers are still under the obligation to figure out how they can effectively communicate with the deaf or hard of hearing employee. As a side note, do not use the term “hearing impaired,” as that term generally drives people in the deaf and hard of hearing community nuts. For example, nothing impaired with my hearing, rather it just doesn’t work the way a person with typical hearing does.
  9. Can you force someone onto FMLA rather than reasonably accommodate them? Answer: This is a topic that has come up in our blog before, such as here190190202203203213. Most people want to work. So, you are better off if you engage in the interactive process to see if the person can continue to do their essential functions of the job with or without reasonable accommodations rather than forcing them onto FMLA. If FMLA leave is the best choice after an interactive process, that is okay. However, forcing a person onto FMLA without an interactive process is risky.
  10. What if the employee is not your employee but works for a staffing company? Who has the obligation to accommodate the person? Answer: It is quite possible that both the staffing company and the company the person is working for have the reasonable accommodation obligations as joint employers. I know of one staffing company that takes a very aggressive stand in making sure that its employees are reasonably accommodated one way or the other. On a related note, last week we discussed the situation of where you had two companies that were so intertwined that the court held they were a single integrated employer, here191191203204204214.
  11. What if you have less than 15 employees but you took federal funds. Do you have to deal with federal disability nondiscrimination laws? Answer: yes. You will have to deal with §504 of the Rehabilitation Act of 1973, 29 U.S.C. §794192192204205205215, which has been held by the courts to apply to employment situations. The remedies available under that law include the full range of damages but not punitive damages. Injunctive relief and attorney fees are also possibilities as well. Keep in mind, taking federal funds to stay afloat through the coronavirus relief laws that were passed qualifies as taking federal funds. If an employee situation is involved, title I of the ADA would be the standard that would be used to figure out whether disability discrimination has occurred.
  12. How long are psychological evaluations valid for? Answer: this is something I see come up all the time in the educational setting, whether it be K-12, secondary, or postsecondary education. The question is what is the disability that you are dealing with. Many MH/LD disabilities are static. So if you are dealing with a disability that is static, requiring psychological evaluation to be current doesn’t make a lot of sense. You don’t want to be in a situation where you are requesting excessive documentation as that is something you are not allowed to do. You can of course receive documentation from healthcare professionals and other individuals to help assess the disability. I would be careful about insisting on current psychological evaluations just for the sake of the fact that the psychological evaluation is not current, especially where the disability is of the kind that doesn’t change much over time.
  13. Three secretaries are all working remotely but an employer requires a secretary that can’t come in to come in. Answer: definitely a potential problem. The first question I have is whether the secretary who is required to come in has a disability. If she does, then you need to engage in the interactive process to figure out if there is a win-win solution. If he or she does not and is associating with someone who does, the interactive process is highly recommended even though reasonable accommodations are not required. If it is the person with a disability who has a higher risk of Covid-19 that is being forced to come in and not the secretaries without a disability, then that is a problem.
  14. When should a person disclose a disability? Answer: this is a highly personal call. It depends on whether the disability is hidden or obvious. It also depends upon the type of employer. Certain employers may be more receptive than others. It is not unusual for a person with a disability to wait for the job offer and then start work before disclosing. Many people with disabilities may not have a choice but to disclose at the interview process. Employers must make reasonable accommodations for people with disabilities to access the interview process. Again, a real personal call. There is no obligation for the person with a disability to disclose. Whether a person with a disability discloses at all is something that I discussed in this blog entry that I posted on the Federal Bar Association blog, here193193205206206216. It is certainly a worthwhile read for understanding when a person with a disability decides to disclose. I can tell you from the legal side it is much better to disclose early because that way the employer is on notice. If they don’t know the person has a disability and there are performance issues, then the employer is not on the hook for what it did not know.
  15. Do I have the obligation to reassign duties that a person with a disability can’t do to other staff? Answer: marginal duties can be reassigned but you are under no obligation to reassign essential job functions.
  16. If a person can’t do the essential functions of their current job with or without reasonable accommodations, must the employer reassign that individual to a vacant position where they can do that job’s essential function with or without a reasonable accommodation? Answer: this entirely depends upon the Circuit you are in. In the Seventh Circuit, the answer is absolutely. In the 11th Circuit, the answer is no. That is, in the 11th Circuit you do want to allow the person with the disability to engage in the competitive process but you are not required to reassign that individual to a vacant position whose job they can do the essential functions with or without reasonable accommodation when they can no longer do their current job with or without reasonable accommodations. Eventually, this question will go up to the Supreme Court. My guess is that the Supreme Court would likely take the 11th Circuit approach, but you don’t know that for sure. That said, you can prevent a lot of problems if you engage in the interactive process and if you as the employer work with the person with the disability to figure out what the possibilities are even if you don’t go as far as reassigning the individual. I discussed this issue here.237207217
  17. Does the employee get the accommodation they want? Answer: no. The accommodation that gets given is the result of the interactive process. Whoever blows up the interactive process is the one that faces the consequences.
  18. What if an employee needs railings, but the employer offers a wheelchair instead? We just saw something similar in the blog entry that was just posted on understanding the ADA last week. Here, you may have two different titles at work. You may have title I with respect to the employee and you may have title III with respect to non-employees. Keep in mind, the applicable ADA architectural guidelines, ADAAG. There is no substitution for the interactive process. Be sure to get into the mindset of a person with a disability. There is a world of difference between railings and wheelchairs on a psychological level that you might want to consider.
  19. If I am an employee and need a reasonable accommodation and already have an attorney, do I copy in my attorney on the reasonable accommodation request? Answer: this is a matter of strategy for you to discuss with your attorney. There isn’t anything wrong with copying in the attorney but it does alert everyone to a more adversarial situation. You definitely want to work with your attorney on this. It is possible that the attorney might ghostwrite the reasonable accommodation request. What exactly happens here is going to depend upon the way the particular attorney wants to do it, the reputation of the employer, and you as the client. There isn’t a right answer per se to this question.
  20. Here is a question that I just thought of so as to make it 20 questions. I have an employee who must as part of their job deal with software as a service platforms that are not accessible to persons with disabilities. Since the software as a service platform is not mine, do I have the obligation to reasonably accommodate that employee? Answer: yes unless you can show an undue hardship (logistical or financial). If you are buying platforms from other companies for use by your employees, it would be a good idea to have indemnification/reimbursement provisions in that contract. Keep in mind, the ADA is a nondelegable duty, as we discussed here194194206207208218. So, the employer does have the obligation to reasonably accommodate that employee unless it can show an undue hardship. The gold standard but not the legal standard for Internet accessibility is WCAG 2-2.1 Level AA. The WCAG standard can be found here195195207208209219. The software as a service providers certainly need to be aware of those standards if they are not already so aware. Also, always engage in the interactive process.
  21. Here is another question I just thought of. I have an employee whose experience with the pandemic was not easy. The employee now wants to bring in emotional support animal to work. I thought emotional support animals were not protected by the ADA. Is that right? Answer: not exactly. While it is true under title II and title III of the ADA, such as we discusse d here196196208209210220, and for that matter the Air Carrier Access Act, under its most current regulations, as discussed here197197209210211221, the EEOC and title I of the ADA are silent. What you want to do, as we discussed here198198210211212222, is handle such a request the same way you would any request for reasonable accommodations. Then, engage in the interactive process to see if that is the only possibility that will work. There is a debate going on about whether the animal needs to be related to a specific essential function of the job or not. At the end of the interactive process and if nothing else works, then you may need to consider an emotional support animal. If the animal is a service animal under title II and title III regulations, the employer would be wise to allow the animal as a reasonable accommodation. Finally, preventive law means to look at the animal in terms of work performance and not in terms of how it relates to an essential job function, especially if it is a service animal.

Before turning to the blog entry of the day, I should point out that OSHA last week, January 29, 2021, issued a guidance entitled, “Protecting Workers: Guidance on Mitigating and Preventing the Spread of Covid-19 in the Workplace.” It can be found here184185197198198204. Lots of good information in the guidance. Keep in mind, that Covid-19 guidances are constantly evolving. For example, some people in medicine and public health are now saying to double mask (something sure to increase the frustration of deaf and hard of hearing individuals). That said, lots of good information in the OSHA guidance. I particularly like how they recognize that the deaf and hard of hearing don’t have it easy and that employers should have clear masks available to deal with the situation where people need to be understanding what is on the face or lips in order to understand what is being said. Also, the Wall Street Journal recently had an article talking about what the NFL has found out about Covid-19 transmission having played through their season. That information is not always consistent with CDC guidances, and CDC guidances taken as a whole can be very confusing to sort out. So, a business of any resources or an employer may want to consider having an infectious disease/public health person on retainer to help you sort this out.

 

Turning to the case of the day, Burnett v. Ocean Properties, Limited, a published decision decided by the First Circuit on February 2, 2021 that can be found here185186198199199205, the case asks the question of just what is an integrated employer. It then discusses whether a punitive damages award should be affirmed where the employer refused to engage in an interactive process despite being put on notice that an employee with a disability needed accommodations. As usual, the blog entry is divided into categories and they are: facts; integrated employer; reasonable accommodation; new trial; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

The Parties Ryan D. Burnett (“Burnett”) was injured in a dirt bike accident and rendered paraplegic over twenty-three years ago. Starting in 2009, Burnett worked as an associate at a call center in South Portland, Maine, taking room reservations for forty-five hotels and resorts in the United States and Canada, all marketed under the umbrella term, “Ocean Properties Hotels, Resorts & Affiliates.” Under 101 employees worked in the reservations department at the call center, whereas over 500 employees worked for the hotels and resorts under the Ocean Properties Hotels, Resorts & Affiliates umbrella. AmeriPort, LLC (“AmeriPort”), was Burnett’s employer, and it held itself out publicly as “Ocean Properties Reservations,” consistent with the umbrella moniker. Ocean Properties, Ltd. (“Ocean Properties”), was an entity that, as we discuss below, was interrelated to AmeriPort.

 

Burnett’s Request For An Accommodation The call center was located in a golf clubhouse whose public entrance sported heavy, wooden doors that pulled outward and then automatically closed. Just beyond the entrance was a slight, downward slope that caused Burnett’s wheelchair to roll backwards as the doors closed on him. As a result, Burnett needed to exert greater force as he struggled to enter. On August 28, 2014, Burnett sent a message to Nick Robertshaw (“Robertshaw”), the acting office manager, requesting push-button, automatic doors at the public entrance, explaining that the “[d]oors are heavy and hard to hold open while I push myself [through] [without] them closing on me.” Robertshaw did not respond to Burnett, but instead forwarded the message to his own supervisor, Lori Darsaoui (“Darsaoui”), and Darsaoui’s supervisor that same day. On September 10, 2014, Darsaoui e-mailed Mark Mooney (“Mooney”), who constructed the clubhouse and was responsible for ensuring the building was up to code, asking “if the set of large wooden doors used to enter the lobby of the clubhouse are ADA compliant.” Hearing no response, Darsaoui e-mailed Mooney again on September 30, 2014: “I wanted to follow up with you and see if you had found out if the doors here are ADA compliant[.] Please let me know as soon as you can.” Mooney responded that same day with, “As constructed when the building was built, Yes.” Darsaoui did not follow up on Mooney’s e-mail and Burnett did not receive a response to his request. One morning in October 2014, Burnett, while entering the clubhouse, injured his wrist (causing tingling in his hand) as he pulled open the heavy door and tried to quickly push himself inside. Burnett reported the incident to another supervisor who filed an incident report on his behalf, but again no one followed up with Burnett on his request for push-button, automatic doors. In June 2015, Burnett filed a disability discrimination complaint with the Maine Human Rights Commission (“MHRC”). In a meeting with Burnett to discuss his MHRC complaint, Darsaoui told him she was not familiar with ADA compliance and, for whatever reason, no specific mention was made of Burnett’s request for pushbutton, automatic doors. So even the filing of a complaint yielded Burnett no relief. On February 26, 2016, Burnett gave notice of his resignation, at which time the condition of the doors remained the same.

 

At trial, appellant stipulated that replacing the doors with not an undue hardship and that Burnett has a disability, was qualified to do his job, and worked for him Ameriport but disputed whether he also worked for Ocean Properties. The jury also asked the judge whether they could find that Ocean Properties was a joint employer and simultaneously fine weather Ocean Properties and him e-report where an integrated employer of Burnett. The judge gave the okay to that. In closing argument, Burnett’s attorney mentioned the golden rule and also threw out dollar amounts for the jury to consider. The jury winds up awarding Burnett $150,000 in compensatory damages. They then went ahead and deliberated with respect to punitive damages whereby they awarded the plaintiff $500,000 in total punitive damages (200,000 under the ADA and 300,000 under the Maine Human Rights Act).

 

The District Court denied the defendant’s motion for new trial but did issue a remittitur reducing the total award from $650,000-$500,000 and reducing the punitive damages award from $500,000-$350,000 ($125,000 under the ADA and $225,000 under the Maine Human Rights Act. The defendants, Ameriport and Ocean Properties then appealed.

 

II

Integrated Employer

 

  1. An integrated employer is where you have two nominally separate companies so interrelated that they constitute a single employer subject to liability.
  2. The court borrows a test from the NLRB as to when two related companies should be treated as one entity. That test involves looking at four factors: 1) centralized control over labor relations; 2) interrelation between operations; 3) common management; and 4) common ownership.
  3. Not all four factors are necessary to establish a singular employer relationship, rather the test is a flexible one placing special emphasis on the control of employment decisions.
  4. With respect to centralized control over labor relations: 1) Burnett believed he worked for Ocean Properties; 2) he signed a probationary form indicating his acceptance as a 90 day probationary period with Ocean Properties and a hiring statement indicating he was an employee of Ocean Properties or affiliated companies; 3) the list of employment policies he was given displayed Ocean Properties Reservations Center Training Manual on the bottom left-hand corner and he received a certificate from Ocean Properties Limited for completing mandatory harassment training; 4) his immediate supervisor hired reservation agents for Ocean Properties as well as Ameriport; 5) Burnett received wages and benefit from both companies; 6). his paystub contained the names of both companies on it; 7) the 401(k) plan was through Ocean Properties.
  5. When evaluating the interrelationship between operations, you look at whether you had shared employees, services, records, office space, and equipment, commingled finances, and handling by the parent of subsidiary taxes, such as payroll, books, and tax returns. Additional considerations include whether one entity exerts considerable influence over the other entity’s advertising and other decisions, as well as whether the former entity is directly involved in the latter entity’s daily sales, marketing, and advertising decisions.
  6. Plenty of evidence indicating an interrelationship was produced, including: 1) his immediate supervisor was responsible for hiring individuals at both companies; 2) Burnett and his immediate supervisor both had Ocean Properties email addresses; 3) both companies shared documents and logos; 4) Burnett’s immediate supervisor contributed to the advertisement of the other company; 5) both companies shared office space and a corporate office; and 6) payroll information was processed for one company by the other.
  7. With respect to the third factor, a individual doing work for both companies is evidence of that. That is, you had one individual playing a large role in the managing or supervising both entities.
  8. With respect to the fourth factor, little evidence exists either way, but it doesn’t matter because the other three factors are so overwhelming with respect to evidence of there being an integrated employer.

 

II

Reasonable Accommodation

 

  1. Sufficient evidence existed that Burnett needed an accommodation and that his requested accommodation was reasonable.
  2. Burnett testified that he daily experienced difficulty entering the clubhouse and injured his wrist once when doing so.
  3. The fact that Burnett was able to enter the clubhouse at the risk of bodily injury and was able to perform the duties of an associate once inside does not necessarily mean that he did not require an accommodation or that his requested accommodation was unreasonable.

 

III

Punitive Damages

 

  1. Plaintiff can get punitive damages if he can show that the employer acted with malice or reckless indifference.
  2. Malice and reckless indifference concern not the employer’s awareness that it is discriminating, but the employer’s knowledge that it is acting in violation of federal law.
  3. Burnett has to prove punitive damages by a preponderance of the evidence.
  4. Sufficient evidence existed that defendants acted with reckless indifference towards Burnett’s rights, including the failure to follow up with Burnett three different times regarding his accommodation requests: 1) after Burnett sent his employer and request for an accommodation in August 2014; 2) after Burnett reported his wrist injury in October 2014; and 3) after Burnett filed a complaint with the state of Maine Human Rights Commission in June 2015 and met with his employer to discuss the filing of that complaint. As a result of the defendant’s failure to respond to his request, Burnett experienced difficulty with the doors every day for months until he resigned.
  5. Defendants never responded to Burnett’s request for an accommodation.
  6. Defendant argued that they made a good faith attempt to comply with the law. However, good faith attempts require more than lip service.
  7. While it is true that the employer had a written open door policy with respect to a person requesting an accommodation, such a policy without more is insufficient to insulate an employer from punitive damages liability.
  8. Evidence exists that the integrated employer knew that a failure to respond to Burnett’s request was a violation of the law.
  9. His immediate supervisor did confirm with another that the doors were apparently ADA compliant when the building was built. However, he did not inquire further into the date the building was built and whether the doors remained compliant at the time of Burnett’s request. Ultimately, Burnett’s pleas simply went unanswered.

 

IV

New Trial

 

  1. While it is true that the verdict is inconsistent, the defendants never properly preserved that objection.
  2. Defendant didn’t object when the jury inquired whether an inconsistent verdict (integrated employer as well as a joint employer) was possible.
  3. Trial court was was within its discretion to exclude the testimony of a person that was offered on the eve of the trial and not during discovery when that testimony would have critically affected plaintiff’s case. In fact, such disclosure should have been made much earlier pursuant to federal rules.
  4. The golden rule statement of plaintiff’s attorney at closing was improper but it didn’t prejudice the case. That is, the case would have ended the same way in light of the evidence. Same goes for the plaintiff’s attorney throwing out specific dollar figures during closing arguments. That was also improper but didn’t change anything. Further, with respect to the damages amount being thrown out in closing argument the plaintiff didn’t properly preserved that challenge at trial.

 

V

 

Thoughts/Takeaways

 

  1. The discussion of an integrated employer, which I have not blogged on before, reminds me a lot of what we learned in law school when it comes to alter ego and piercing the corporate veil. If you have separate corporations, you would do well to observe corporate formalities so that the corporations are truly separate. Failure to do that, can run both corporations into trouble.
  2. The integrated employer factors are holistic. That is, you look at the overall picture rather than how each of the factors add up with each other.
  3. If an employee gives his or her employer enough information to indicate that reasonable accommodations are needed, the employer would do very well do not ignore those requests. Ignoring those requests is a bad idea and may even subject the employer, as here, to punitive damages.
  4. The discussion of punitive damages resembles in some ways the discussion of what is deliberate indifference under title II/Rehabilitation Act, which we discussed here186187199200200206. You can get punitive damages under title I but not under title II, the Rehabilitation Act, or title III.
  5. Good faith requires something more than just written policies.
  6. Interesting that there wasn’t a separate personal injury cause of action alleging that the injury was the result of the doors being noncompliant with the ADA, which they probably were. We discussed that possibility here187188200201201207.
  7. There is no grandfather clause with respect to the accessibility of physical facilities. You have to look at the applicable ADAAG guidelines in place at the moment in time the issue comes up.
  8. Doing the job adequately or even well doesn’t forfeit a person with a disability right to reasonable accommodations.
  9. Title I, II, and III of the ADA all have different statutory, regulatory, and interpretive rules from each other. Sometime, more than one title of the ADA at a time is involved simultaneously. For example, to Burnett, an employee, the heavy doors fell under title I. However, if the place that Burnett worked at is a place of public accommodation under 42 U.S.C. §12181(7), which it probably is, then to the individual non-employee seeking to access that place, the double doors would fall under title III (a completely different system than title I). While the result of having to move the double doors would probably be the same, how you get there would be completely different under title I then under title III. So, it can be really helpful to have access to an attorney knowledgeable about all of the titles of the ADA. I don’t know many attorneys besides myself that fit that criteria. In that case, you would want to find attorneys that have knowledge about the applicable title of the ADA involved. In other words, I have been involved in matters over the years where title I, title II, and title III are all involved simultaneously. This case involved the simultaneous operation of title I and title III. I have also been involved in matters where title I and title II were operating simultaneously. In short, simultaneous operations of multiple titles of the ADA is not as unusual as you might think.

Basketball, Referee, Game, Orange, Ball

 

Today’s blog entry come from the Wait a Second blog. It was something that I was going to blog on anyway, but the Wait a Second blog beat me to the punch. As everyone knows, I still will blog on cases that other bloggers have blogged on if I feel I can offer a unique perspective. This case certainly qualifies. The case is Girard v. International Association of Approved Basketball Officials Inc., a summary order from the Second Circuit. Wait A Second does a great job of discussing the case here182185191197197, and the case can be found here183186192198198. This blog entry is personal to me in many ways as in my 30s I refereed basketball. The set up of the Referee Association was very very similar to what is described in the case. No doubt, the Second Circuit gets it right with respect to whether the referee is an employee. However, my question is what if the same thing happened except the reason why it happened was because the referee had a disability as the ADA defines the term that did not interfere with him or her refereeing the games. Nevertheless, let’s assume the Referee Association assumed that the disability as the ADA defines the term would interfere or would potentially interfere with refereeing and then took adverse action against the referee. If this was an ADA matter would a court reach the same result at the Second Circuit? That is the question that this blog entry will explore. As usual, the blog entry is divided into categories and they are: facts; court’s decision; is the Referee Association a place of public accommodation; if the Referee Association is a place of public accommodation, where is the liability exposure; and thoughts/takeaways. Of course, the reader is free to concentrate on any or all of the categories.

 

I

Facts

 

As alleged in the complaint, Girard officiates middle and high school basketball games in Connecticut. IAABO and Board 6 control the assignment of referees to middle and high school basketball games at schools in Connecticut, and they determine which referees will work which games. While defendants do the “matchmaking” of pairing officials with games, the referees are paid on a per-game basis directly by the “schools, school districts and league of schools.” Compl. ¶¶ 72-73. Referees are paid more for working high school varsity-level games than for “subvarsity” games at the middle school, freshman, and junior varsity levels. Compl. ¶ 51. – 4 – Defendants use a peer rating system to determine which referees are eligible to officiate varsity games. Defendants’ ratings of referees and their determinations of varsity eligibility thus significantly affect the number of work opportunities available to referees and what they will be paid. As further alleged in the complaint, defendants’ peer rating system has led to disparate varsity-eligibility and rankings between genders. Approximately 99% of the varsity referees on Board 6’s roster are male. Defendants have refused to adopt objective methods for assessing referees, and thus continue to use subjective rankings systems that are influenced by gender bias. Defendants’ practices have caused female referees to be underrepresented at the varsity level. In 2009, Girard complained to the president of Board 6, David Anderson, that she was not receiving opportunities to develop in games with seasoned referees and advance to the varsity level. Instead, she was assigned to low level games because of her gender. Dissatisfied with Anderson’s response, Girard filed a grievance with Board 6’s Professional Standards Committee, but the committee rejected it. Thereafter, defendants reduced the number of games Girard was assigned to and continue to assign her to sub-varsity games in retaliation for her complaints about gender discrimination.

 

II

Court’s Decision

 

  1. To state a title VII claim, a plaintiff has to allege the existence of an employer employee relationship.
  2. No such relationship exists under two different Supreme Court precedents. That is, the plaintiff does not meet the common-law element of control nor does the plaintiff meet a 13 factor test that the Supreme Court laid out in one of its cases.

 

III

Is the Referee Association a Place of Public Accommodation under the ADA

 

  1. As we have discussed here184187193199199, the trend is very much that a place of public accommodation does not have to be a physical space.
  2. 42 U.S.C. §12181185188194200200(7) has 12 categories what are places of public accommodations but the examples in those categories are not exclusive. 12181(7) (F) is a service establishment and 12181(7)(L) is a place of exercise or recreation. Either of those might fit for a Referee Association. That is, the Referee Association is certainly providing a service to its referees. Also, the referees are performing their job in a place of exercise or recreation, i.e. gymnasiums.
  3. The Referee Association is certainly operating an Association.
  4. PGA Tour, Inc. v. Martin186189195201201 makes clear that the 12 categories of public accommodation need to be construed liberally to allow people with disabilities equal access to the wide variety of establishments available to those without disabilities.
  5. As mentioned in PGA Tour, Inc. v. Martin, the events that the referees referee occur at types of places specifically identified by the ADA as a place of public accommodation, i.e. gymnasiums.
  6. Also by way of analogy to PGA Tour, Inc. v. Martin, a Referee Association, like the PGA Tour, offers at least two privileges to the public-that of watching the basketball game with the referees and allowing people to be referees in the games if they are able to do the job of being a referee.
  7. Similarly to PGA Tour, just because the Referee Association serves the schools by refereeing its games and the public by making sure the games are played within the rules, that does not preclude them from having another set, the actual referees, against whom it may not discriminate.
  8. Being a member of the Referee Association is a privilege offered by the Referee Association and therefore title III coverage may be had under the case discussed in this blog entry187190196202202.

 

IV

 

If the Referee Association Is a Place of Public Accommodation under the ADA, Where Is the Liability Exposure

 

  1. 42 U.S.C. §12182188191197203203(b)(1)(A)(i) makes it discrimination to deny an opportunity to a person with a disability on the basis of a disability from participating in or benefiting from the goods, services, facilities, privileges, advantages, or accommodations of the place of public accommodation.
  2. 42 U.S.C. §12182189192198204204(b)(1)(A)(ii) makes it discrimination to deny the opportunity for a person with a disability on the basis of the disability to participate in or benefit from a good, service, facility, privilege, advantage, or accommodation that is not equal to that afforded to other individuals.
  3. 42 U.S.C. §12182190193199205205(b)(1)(D)(i) makes it discrimination for a place of public accommodation to utilize standards or criteria or methods of administration that have the effect of discriminating on the basis of disability.
  4. 42 U.S.C. §12182191194200206206(b)(2)(A)(ii) makes it discrimination or place of public accommodation to fail to make reasonable modifications and policy, practices, or procedures, when such modifications are necessary to avoid such goods, services, facilities, privileges, advantages, or accommodation to individuals with disabilities absent a fundamental alteration.
  5. 28 C.F.R. §35.130192195201207207(b)(1)(v) makes it discrimination for a public entity to aid or perpetuate discrimination by providing significant assistance to an agency, organization, or person that discriminates on the basis of disability.

V

Thoughts/Takeaways

 

  1. The point of this blog entry is to lay out the case as to why a person alleging disability discrimination against a Referee Association may wind up with a very different result than the referee who alleged title VII violations.
  2. The key question is going to be whether the Referee Association is a place of public accommodation. A strong argument can be laid out that it is, as discussed above.
  3. If the Referee Association is a place of public accommodation, then any number of regulations and statutes can come into play.
  4. If the Referee Association is a place of public accommodation and is discriminating on the basis of disability, then it would be perfectly appropriate to ask that the schools paying the referees stop contracting or utilizing the Referee Association. I could also see a referee filing suit saying that a school would have to stop contracting with the Referee Association.
  5. Since this is the Super Bowl coming up, it is my understanding that most NFL referees are employees and not independent contractors. As such, they would be under title I of the ADA and not under title III. However, if a referee was an independent contractor (all high school and junior high referees are), then this blog entry would be applicable if the referee were to face discrimination based upon a disability.
  6. There is absolutely no reason why a person with a disability cannot be a referee. I did it for years.
  7. Of course, assuming a place of public accommodation is found the referee was still have to prove he or she had an actual disability, a record of a disability, or was regarded as having a disability. From my experience, many of those possibilities could easily be in play with respect to an aggrieved referee.

Today’s blog entry deals with a topic I have not dealt with before and with topics that I have dealt with before. The topic that I have not dealt with before in my eight years of blogging on the Understanding the ADA is the concept of vicarious exhaustion. There are topics that I have dealt with before, such as statute of limitations, otherwise qualified, etc. Today’s case is Pappas v. District of Columbia, which can be found here180184202206. It is a District Court decision from the District of Columbia decided on January 12, 2021 written by Judge Rudolph Contreras. As usual the blog entry is divided into categories and they are: Key facts; vicarious exhaustion; statute of limitations for §504; statute of limitations §504 claims properly tolled; statute of limitations §504 claims equitably tolled; §504/ADA failure to accommodate claim; adequate allegations that the police district has knowledge of the need for accommodations; otherwise qualified/qualified; reasonableness determination of accommodations requested not appropriate on a motion to dismiss; miscellaneous matters; and thoughts/takeaways. Since this blog entry is long, I would suggest at a minimum reading the key facts and the thoughts/takeaways section. After that, you might want to focus on the topical areas of interest. The particular topics are separate enough from each other where if you were just concerned about one particular issue, you wouldn’t need to read many of the other sections in the blog entry dealing with other issues. I suppose that is a fancy way of saying that the reader is free to focus on any or all of the categories.:-)

 

I

Key Facts

 

Plaintiffs Steve Pappas, Tawana Lindsay, Nichole Mathies, and Malachi Malik, former employees of the District of Columbia Metropolitan Police Department (“MPD”), brought this class action against MPD, the District of Columbia, and Peter Newsham in his official capacity as Chief of Police of the MPD (collectively, the “Defendants”), challenging the MPD’s practice of requiring employees who spend 172 cumulative days within any 24-month period at less than full-duty status to take disability retirement, without offering reasonable accommodations through reassignment, job restructuring, or extended leave. They argue this policy violated the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101, et seq., and Section 504 of the Rehabilitation Act (“Section 504”), 29 U.S.C §§ 794, et. seq. Mr. Pappas also alleges that the MPD made improper medical inquiries and subjected him to improper medical examinations, in violation of the same statutes.

 

Mr. Pappas filed a formal charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) on October 5, 2015. See id. ¶ 57. On August 10, 2016, the EEOC issued a determination letter that referred Mr. Pappas’s claim to the U.S. Department of Justice (“DOJ”), finding that there was “cause to believe that by [MPD’s] actions and through its policies, [MPD] had violated the ADA rights of Mr. Pappas and a class of similarly situated individuals.” Id.; see also Pls.’ Mem. Opp’n Defs.’ Mot. Dismiss Pls.’ Am. Compl. (“Pls.’ Opp’n”), Ex. A (“Pappas EEOC Reasonable Cause Determination”), ECF No. 21-2.3 On June 3 Mr. Pappas’s EEOC Reasonable Cause Determination and EEOC Charge, see Defs.’ Mot. Dismiss, Ex. B (“EEOC Charge”), ECF No. 19-3, can be evaluated by the Court on this motion to dismiss due to their status as judicially noticeable public records. See Ndondji v. InterPark Inc., 768 F. Supp. 2d 264, 272 (D.D.C. 2011) (noting that on review of a motion to 7 21, 2019, the DOJ issued Mr. Pappas a right to sue letter for his claim. See Am. Compl. ¶ 57. Mr. Pappas filed suit on September 19, 2019. Id. An amended complaint was filed by Mr. Pappas, along with Ms. Lindsay, Ms. Mathies, and Mr. Malik on December 12, 2019. Id. Defendants have now moved to dismiss the entire complaint.

 

II

Vicarious Exhaustion

 

  1. Vicarious exhaustion allows the non-filing party to join the suit of another similarly situated plaintiff who did file an administrative complaint against the same defendant.
  2. Vicarious exhaustion is available only to parties whose claims are so similar to those asserted by the original plaintiff that no purpose is served by requiring them to file independent charges.
  3. The purported similarity of the claims in question have to be evaluated for whether the original filing performed the principal notice function of the EEOC filing requirements.
  4. In order for vicarious exhaustion to apply, the original EEOC charge must: 1) put the employer-defendant on notice of all charges by the similarly situated plaintiff; and 2) provide the employer and the EEOC with an opportunity for administrative consolidation and resolution.
  5. While a failure to exhaust administrative remedies under the ADA is an affirmative defense, which means the defendant typically bears the burden of pleading and proving lack of exhaustion, an exception exists where in response to a motion to dismiss, plaintiffs concede they failed to exhaust administrative remedies and offer legal justification for that excuse. In that situation, the court can consider it on a 12(b)(6) motion.
  6. Pappas, Ms. Lindsay, and Ms. Mathies claims all arose from the same allegedly discriminatory mechanism, the police district’s forced retirement policy.
  7. The filing by Mr. Pappas provided the required notice for vicarious exhaustion to be invoked because it alerted the EEOC to the police district’s unlawful forced retirement policy and was a standardized application to both Mr. Pappas and other officers and provided them an opportunity for resolution.
  8. It is of no matter that the specific circumstances giving rise to the grievances of each of the plaintiffs are distinguishable because each plaintiff plans to prove their allegations by demonstrating the same thing (a pervasive pattern and practice of discrimination).
  9. No different set of facts are at issue because the discrimination was an integral part of an employer’s practices. In fact, the forced retirement policy was such an integral part of the employer’s practices that it was codified into a formal department policy.
  10. The primary purpose of the exhaustion doctrine, notice to the police district of the allegedly discriminatory act, was accomplished by Mr. Pappas’s EEOC charge that detailed his belief his firing was the result of the forced retirement policy and constituted discrimination on the basis of his disability. Since Ms. Lindsay and Ms. Matthie challenged the same policy, vicarious exhaustion works for their claims.
  11. Malik’s claim does not get the benefit of vicarious exhaustion because he did not allege that he was subjected to involuntary retirement under the forced retirement policy. Instead, he seemed to imply his unwilling retirement was the result of a different policy of the police district saying that active duty police officers could not have defibrillators. So, given that he did not allege discrimination under the forced retirement policy, the police district could not have notice of his claims by the filing of Mr. Pappas’s EEOC charge. Hence, vicarious exhaustion does not work for Mr. Malik.

 

III

Statute of Limitations for §504

 

  1. 504 of the Rehabilitation Act does not contain its own statute of limitations period. So, courts have to borrow from the analogous state cause of action. In the District of Columbia, courts have either applied the three-year statute of limitations for personal injury claims or the one year limitation period governing allegations of unlawful discrimination under the District of Columbia Human Rights Act.
  2. In 2012, the D.C. Circuit held that the D.C. Human Rights Act was the analogous cause of action for Rehabilitation Act claims, and accordingly applied the one year limitation in existence for the D.C. Human Rights Act rather than the three-year personal injury statute of limitations.
  3. There were several reasons why the D.C. Circuit Court of Appeals opted for the D.C. Human Rights Act over the personal injury statute of limitations and they were: 1) the personal injury statute of limitations does not deal with remedying discrimination claims; and 2) the D.C. Human Rights Act targets virtually all forms of disability discrimination, encompasses a range of activities covered by Rehabilitation Act, and has a statute of limitations intended specifically for claims of discrimination.
  4. While the D.C. Circuit determination decisions are not binding on the District Court when it comes to District of Columbia specific matters and the Rehabilitation Act concerns federal law, the decision still warrants considerable persuasive weight as an interpretation of District of Columbia law, of which the District Court of Appeals is the ultimate authority.
  5. The vast majority of courts considering the issue after the D.C. Circuit decision have also agreed with the one year statute of limitations being the proper analogous statute.

 

IV

Statute of Limitations §504 Claims Properly Tolled?

 

  1. Pappas filed a formal charge of discrimination with the EEOC on October 5, 2015, almost exactly 7 months after his retirement from the police force. Since that filing was done within the one year limitation period, his claim is properly tolled on that date.
  2. Once the EEOC or DOJ issued a right to sue letter, statute of limitations starts over. On June 21, 2019, Mr. Pappas received a right to sue letter for his claims. He then filed suit on September 19, 2019. Therefore, his §504 claims are timely as his complaint was submitted before the tolled one year statute of limitations period expired.
  3. The other plaintiffs are not so lucky for the reasons appearing in the rest of this section.
  4. 504 claims brought by non-federal employees do not require administrative exhaustion.
  5. Given that exhaustion is not required, much less a jurisdictional requirement for non-federal employees under §504, the other plaintiffs simply cannot piggyback on Mr. Pappas’s claims with respect to the statute of limitations for their §504 claims.
  6. Congress has never stated that when it comes to §504 claims for non-federal employees, that the judiciary cannot hear an action until the administrative agency has come to a decision and such explicit language from Congress is necessary to find an administrative exhaustion requirement. In fact, §504 contains no such sweeping and direct language and neither does title VI of the civil rights act that it ties into.
  7. So, you have a failure to meet a statutory deadline and not a failure to exhaust administrative remedies. Further, plaintiffs failed to identify any application of the vicarious exhaustion doctrine that allows it to toll a statutory deadline, much less one where exhaustion is not even required.

 

V

Statute of Limitations §504 Claims Equitably Tolled

 

  1. 504 contains no statute of limitations and borrows its limitation timeframe from the District of Columbia Human Rights Act.
  2. The District of Columbia does not recognize an equitable tolling exception to the statute of limitations, except for lulling and the discovery rule.
  3. The lulling doctrine suspends the statute of limitations only when the defendant has done something that would tend to goad the plaintiff into inaction thereby permitting the limitation prescribed by the statute to run. Under the discovery rule, a claim does not accrue until the plaintiff after exercising due diligence has discovered or reasonably should have discovered all of the essential elements of her possible cause of action.
  4. Nothing in the plaintiffs complaints fit into either of these exceptions and therefore both doctrines do not apply. So, Ms. Lindsay, Ms. Matthies, and Mr. Malik are not entitled to equitable tolling of their §504 claims.
  5. In a footnote, the court noted that tolling arguments can be raised in either a complaint or later opposition to briefing.
  6. In a footnote, the court said that federal equitable tolling principles are of no help either because this was not an extraordinary and carefully circumscribed instance. Extraordinary circumstances are circumstances beyond the control of the complainant that make it impossible to file a complaint within the statute of limitations, which was not the case here. That is, no explanation was provided by all the plaintiffs, save one, as to why they sat on their rights until after the filing deadline passed.

 

VI

  • 504/ADA Failure to Accommodate Claims

 

  1. To prevail on a claim for failure to accommodate, the plaintiff has to demonstrate: 1) they are a qualified individual with a disability; 2) their employer had notice of the disability; and 3) the employer denied the employee’s request for reasonable accommodation. A person with a disability must also alleged that they first requested reasonable accommodations from their employer and was then refused in order to bring a failure to accommodate claim.
  2. An employee’s request for an accommodation need not be in writing or use the specific phrase “reasonable accommodation,” but the request has to make sufficiently clear that the employee wants assistance with his or her disability so that he or she may return or continue to work.
  3. What matters under the ADA are not formalisms about the manner of the request, but whether the employee or a representative of the employee provides the employer with enough information that under the circumstances, the employer can fairly be said to know of both the disability and the desire for an accommodation.
  4. Plaintiff’s arguments that their failure to request reasonable accommodation should be excused because those requests would have been futile simply do not hold up in light of their pleadings that identify other employees who receive accommodations after presumably requesting them.
  5. The forced retirement policy would not so absolute to essentially foreclose opportunity for accommodations if requested. For example, the forced retirement policy does not contain any explicit ban on accommodations, such as transfer to another department.

 

VII

Adequate Allegations That the Police District Has Knowledge of the Need for Accommodations Were Made

 

  1. An affirmative request for accommodations is not required where an employer knows both that the employee has a disability and knows that the employee is seeking assistance from the employer in the form of accommodations.
  2. Mere notice of a disability does not ordinarily satisfy the ADA’s request requirement.
  3. Knowledge of a disability is different from knowledge of the resulting limitation and is certainly different from knowledge of the necessary accommodation.
  4. Several courts have determined that communications from medical professional to an employer can constitute a request for accommodations.
  5. In a footnote, the court notes that determining whether plaintiffs communicated to the police district that they sought additional accommodations can be a very complicated calculus for employers given the repercussions that can arise from assuming the need for accommodations where there is not one. The congressional report accompanying the ADA states, without an affirmative request from the disabled employee, it is inappropriate on the part of the employer to provide an unsolicited accommodation.
  6. The amended complaint does not allege that the plaintiffs doctors made a specific request for accommodations or noted an accommodation in the job duties or job role was medically necessary. Rather, the Dr.’s notes simply summarized the current condition of the plaintiffs. Even when construed liberally, the physician reports are not enough to possibly convey a desire by plaintiffs to the police district for accommodations.
  7. Plaintiff failed to allege anywhere in their amended complaint that the physician assessments in question were actually sent to or received by the police district.
  8. In a footnote, the court said that plaintiffs have failed to plead in the amended complaint that plaintiffs affirmatively notified the police district of their desire for reasonable accommodation through any channel, formal or informal.
  9. With one exception, plaintiffs provide no evidence showing that they made any request for continued employment.
  10. The amended complaint contains no indication that the police district was notified by Mr. Pappas or that Mr. Pappas communicated to a police district employee, whether it be a colleague or supervisor, that he was seeking a new position in order to accommodate his disability or that he wanted further assistance from the police district in this regard.
  11. The act of applying to a new position with a different division of a large employer without any further articulation of a desire for reassignment as an accommodation, falls short of the precedent for what suffices as an accommodation request.
  12. The amended complaint does not describe any communication by Mr. Pappas to his supervisor or any other police district employee conveying either his desire for reassignment or that reassignment was his rationale for applying to the vacant position.
  13. Lindsay fares differently. In particular, the amended complaint states that Ms. Lindsay requested the postponing of a disability retirement consideration hearing to a later date by which she was expected to have fully recovered from her injury. Such a statement could be construed as a request by Ms. Lindsay for continued employment. By requesting a delay in her retirement hearing, Ms. Lindsay was essentially asking to remain a member of the police district until she recovered from her foot injury. Therefore, she promptly put the police district on notice regarding her desire for accommodation due to her disability and her failure to accommodate claim can go forward.
  14. All of the plaintiffs do have one basis to show that they conveyed to the police district a request for accommodation. In particular, the plaintiffs argue that their placement on light-duty and/or sick leave was itself an accommodation from the police district. Therefore, since this accommodation was already in effect and accepted by plaintiffs, plaintiff were not required to request further accommodations because an employer’s obligation to participate in the interactive accommodation process is a continuing one.
  15. The police district granted each of the plaintiff an initial accommodation by placing them on either sick leave or on light-duty. Those changes to their responsibilities are the definition of a reasonable accommodation under the ADA.
  16. The police district had to know plaintiffs disabilities in order to grant these initial accommodations, and plaintiffs made their desire for those accommodation clear by accepting the offer of the job role modifications. Accordingly, plaintiff conveyed that they were seeking assistance from the police district in the form of accommodations. Since the police district was both aware of plaintiffs disabilities and their desire for relief as a result of these initial accommodations, these actions sufficiently constitute a request for accommodation.
  17. Once an employee requests an accommodation, the interactive process of the ADA and the Rehabilitation Act begins.
  18. The interactive process provides a flexible give-and-take between employer and employee so that they together can determine what accommodations would enable the employee to continue working.
  19. An employer’s duty to accommodate is a continuing duty that is not exhausted by one effort.
  20. In a footnote, the court noted that the ADA defines an accommodation as any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities, 29 C.F.R. §1630.2181185203207(o).
  21. It is reasonable to conclude that the police district was aware the initial accommodation to the plaintiff were failing and that further accommodations were needed for the following reasons: 1) plaintiff were all placed on limited duty or sick leave due to their disabilities that left them unable to fulfill the duties of an active duty officer without accommodations; and 2) the police district sought to terminate the initial accommodations after 172 days pursuant to the forced retirement policy precisely because they could no longer fulfill the duties of an active police officer.
  22. The police district knew that plaintiff could not resume their prior active duty officer roles due to their disabilities. So by terminating the initial accommodation, they knew plaintiff would be forced out of the police district. Based on that, it can be reasonably inferred that the police district was reasonably aware that further accommodations would be needed for the plaintiff to continue their employment.
  23. Plaintiffs are not required to make new and additional request for accommodations given that the interactive process was already ongoing and the police district was reasonably aware that the initial accommodation was failing because they chose to terminate them. Accordingly, the responsibility of plaintiffs to request accommodations is excused.

 

VIII

Otherwise Qualified/Qualified

 

  1. A qualified individual is one whom with or without reasonable accommodation can perform the essential functions of the employment position that such individual holds or desires, 42 U.S.C. §12111182186204208(8).
  2. The inclusion of the phrase “or desires,” within the statutory definition broadens the term to encompass employees seeking reassignment to a vacant position if they can with or without reasonable accommodation perform the essential functions of the employment position for which they are seeking reassignment.
  3. The determination of qualified/otherwise qualified examines the plaintiff’s capacity to perform the essential functions of her job with or without reasonable accommodations at the time of the denial of accommodations.
  4. A determination that a plaintiff is not a qualified/otherwise qualified individual is rare on a motion to dismiss because figuring out whether the person is qualified or unqualified involves determining a job’s essential functions, which is typically a factual issue to be determined by a jury.
  5. Plaintiff properly alleged they were qualified/otherwise qualified individuals because the amended complaint contains pleadings that they could perform the essential elements of either their current position with reasonable accommodation or that of a job obtained by way of reassignment to a vacant position.
  6. It is sufficient to allege that the ability to perform the essential functions of any position only comes from their claim for relief since this is a motion to dismiss.
  7. The essential duties of an employee’s position are questions of fact that are not required to be alleged with particularity. Also, nothing in the amended complaint states that plaintiffs were unable to perform certain duties essential for their role as police officers.
  8. The answer to all of this may be different on summary judgment, but for purposes of a motion to dismiss plaintiff adequately alleged that they could perform the essential functions of their positions by stating they could do so job restructuring or extended leave.
  9. Plaintiffs also adequately alleged that they could perform the essential functions of other vacant government position with reasonable accommodations.
  10. It is sufficient to allege that with or without reasonable accommodations, they could perform the essential functions of the employment position for which they were seeking reassignment to.
  11. The amended complaint contains an assertion for each plaintiff that defendants have vacant positions available for which each plaintiff was qualified for during the relevant period.
  12. The police district has the obligation to assist with job reassignment for plaintiffs as part of the interactive accommodation process.
  13. Under the interactive process, if a reasonable accommodation turns out to be ineffective and if there is no alternative accommodation, then the employer must attempt to reassign the employee to a vacant position for which he or she is qualified unless doing so constitutes an undue hardship.
  14. Plaintiffs have plausibly alleged that reassignment was required. From the allegations in the complaint, it is clear that the only remaining accommodation was a job transfer. So, the police district was obligated to assist plaintiffs in obtaining those transfers because employers have an obligation to help employees identify appropriate job vacancies since plaintiff can hardly be expected to hire detective to look for vacancies.

 

IX

The Reasonableness of Accommodations Requested Is an Appropriate on a Motion to Dismiss

 

  1. Whether an accommodation is reasonable is a question of fact inappropriate for resolution on a motion to dismiss.
  2. With one distinguishable exception, all of the cases cited by the defendant concerning a determination that the requested accommodation was not reasonable occurred after discovery at the summary judgment phase.
  3. The police district was likely required as the plaintiff’s employer to investigate reassignment as a possible reasonable accommodation.

 

X

Miscellaneous Matters

 

  1. Pappas also made a claim that unlawful medical inquiries were made, but the court threw that out saying that the medical inquiries were narrowly focused on job related issues.
  2. The court also held that the chief of police in his official capacity was a proper defendant because the plaintiff was seeking injunctive relief and not monetary damages.
  3. It is in the interest of justice to grant plaintiffs request for leave to amend, court granted 30 days, their complaint in light of the opinion.

 

XI

Thoughts/Takeaways

 

  1. Vicarious exhaustion is simply not something you see very often. On the plaintiff side, it is a really risky approach. From my read of ADA cases over the years, it is more likely to fail than not.
  2. Statute of limitations are all over the place. The District of Columbia is not the only one that opted for their nondiscrimination statute. Virginia has done the same. Each of those statute of limitations are only one year. Most states do go with the personal injury statute of limitations, which is longer (two or three years generally). However, not all states do. Missing a statute of limitation is one of those legal malpractice issues. So, be sure thorough legal research is done on the applicable statute of limitations claim before taking on the case if you are on the plaintiff side. On the defense side, you might be able to knock out the claim early because of the failure of the plaintiff’s attorney to do that research. Bottom line don’t assume that every state goes with the personal injury statute of limitations even though the vast majority do.
  3. 504 does not require exhaustion for non-federal employees. That lack of exhaustion requirement can be good news for plaintiffs, but it also means plaintiffs have to carefully watch the statute of limitations. I see this all the time with respect to questions dealing with whether to pursue an U.S. Department of Education Office of Civil Rights claim on behalf of someone in higher education. It can take some time for the U.S. Department of Education Office of Civil Rights or the Department of Justice to investigate those claims. In the meantime, the statute of limitations is still running.
  4. Magic words are not required for reasonable accommodation requests. The key is whether the employer has been given enough information so that the employer can be said to know about the disability and the desire for an accommodation.
  5. Arguing that making a reasonable accommodation request was futile is an argument unlikely to work in most cases.
  6. Automatic termination policies without investigating whether the person can do the essential functions of the job with or without reasonable accommodations are a lousy idea.
  7. If someone is saying they can return to work at a later date certain, consider that a request for reasonable accommodations.
  8. Interactive process is a continuing obligation on the part of the employer absent the employee blowing it up first.
  9. Acceptance of sick leave or light duty may activate the interactive process on the part of the employer.
  10. An employer’s duty to accommodate is a continuing duty not exhausted by one effort.
  11. As we have discussed previously, reassignment is a real hot issue with some court saying the employer have to mandatory reassign people that are no longer qualified to do their current jobs. Other court saying that competitive bidding is certainly appropriate. This court strikes a middle ground saying that the employer has an obligation to help the employee find suitable other positions. The decision is a bit confusing on this point. It also says that the employer must attempt to reassign the employee to a vacant position. Ultimately, the United States Supreme Court is going to have to figure this one out. My guess is that they are going to go with the competitive bidding approach of the 11th circuit over the mandatory reassignment approach of the Seventh Circuit, but one never knows.
  12. Otherwise qualified/qualified is a factually intensive question more appropriate for resolution on summary judgment than on a motion to dismiss.
  13. Any disability related inquiries of current employees need to be job related.
  14. If you are on the plaintiff side and getting notes from a healthcare professional, make sure they discuss possible accommodations whenever possible to do so.