But For Causation is not Sole Causation and Other Matters: the Supreme Court LGBT Decisions

By William Goren on June 17, 2020

Posted in Constitutional law, Federal Cases, Rehabilitation Act

This week the Supreme Court came down with the decisions in the LGBT cases, which I previously discussed here. The decision will have an absolute huge impact on people with disabilities in both positive and possibly negative ways. Before moving onto the decision, I do want to say that my wife and I and my daughter for the last seven years have been members of Congregation Bet Haverim, which was originally founded as the home for the LGBT community in Decatur, Georgia some 25 years ago. My daughter and I have also taught at the religious school there for the last several years. So, on a policy level I couldn’t be happier about the decision that came down yesterday. Did they get it right on the law? I will leave that for readers to decide after going through the reasoning of each of the opinions, which I explore in detail. I will say that I always enjoy reading Justice Gorsuch’s opinions. Regardless of whether I agree with him or not, his writing is one of the most accessible I have seen for a judge. I felt the same way when he was on the 10^th Circuit Court of Appeals. For those interested in where Justice Gorsuch might stand on the rights of people with disabilities excluding this case, check out this blog entry. This blog entry will be divided into the categories of Justice Gorsuch’s majority opinion; Justice Alito’s dissenting opinion; Justice Kavanaugh’s dissenting opinion; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories. I will say that you will want to read at a minimum Justice Gorsuch’s majority opinion section and the thoughts/takeaways section.

Justice Gorsuch’s Majority Opinion

An employer who fires an individual for being homosexual or transgender terminates that person for traits or actions it would not have questioned in members of a different sex. That is, sex plays a necessary and undisguisable role in the decision, which is exactly what title VII forbids.
While it is true that the Civil Rights Act might not have anticipated that it would lead to the protection of those in the LGBT community, it is also likely that the drafters of the Civil Rights Act were not thinking about consequences that became apparent over the years, including prohibition against discrimination on the basis of motherhood and its ban on sexual harassment of male employees.
The limits of the drafters’ imagination supply no reason for ignoring the law’s demands. When the express terms of the statute give one answer and an extratextual consideration another, it is no contest. Only the written word is the law, and all persons are entitled to its benefits.
Title VII of the Civil Rights Act prohibits employers from taking certain action because of sex. The ordinary meaning of “because of,” is “by reason of,” or on, “account of.” That means, title VII’s “because of,” test incorporates the simple and traditional standard of but for causation.
In other words, a but for test directs us to change one thing at a time and see if the outcome changes. If it does, you have found a but for cause.
Oftentimes, events have multiple but for causes. For example, if a car accident occurs both because the defendant ran a red light and because the plaintiff failed to signal his turn at the intersection, each is a but for cause of the collision.
So long as the plaintiff’s sex was one but for cause of that decision, that is enough to trigger the law.
If Congress didn’t want to deal with but for causation, it could have said as much. For example, it could have added solely to indicate that actions taken because of multiple factors do not violate the law (our blog has discussed numerous times how the Rehabilitation Act, 29 U.S.C. §794, works that way). Another possibility is that Congress could have used the term “primarily because of,” to indicate that the prohibitive factor had to be the main cause of the defendant’s challenge employment decisions. However, Congress didn’t do that. If anything, Congress moved in the opposite direction by amending title VII in 1991 to allow a plaintiff to prevail merely by showing that a protected trait, such as sex, is a motivating factor.
The but for causation standard continues to afford a viable, if no longer exclusive, path to relief under title VII.
The term “discriminate,” in 1964 meant roughly what it means today. That is, to make a difference in treatment of favor (of one as compared with others). So, to discriminate against a person would seem to mean treating that individual worse than others were similarly situated. In such cases, the Supreme Court has also held that the difference in treatment based upon sex must be intentional.
Title VII focus is on individuals and not groups. What is an individual is has not changed from 1964. That is, a particular being as distinguished from a class, species, or collection.
Where an employer fires a woman for being insufficiently feminine and also fires a man for being insufficiently masculine, the employer fires an individual in part because of sex.
An employer violates title VII when it intentionally fires an individual employee based in part on sex. It simply doesn’t matter that other factors besides the plaintiff’s sex contributed to the decision. It also doesn’t matter if the employer treated women as a group the same when compared to men as a group.
If the employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee (if changing the employee’s sex would have yielded a different choice by the employer), then a statutory violation has occurred.
An individual’s homosexuality or transgender status is not relevant to employment decisions because it is impossible to discriminate against the person for being homosexual or transgender without discriminating against that individual based on sex.
Where you have a man and a woman both attracted to men, if the employer fires a male employee for no reason other than the fact that he is attracted to men, the employer discriminates against the male employee for traits or actions it tolerates in his female colleagues. In other words, in that situation the male employee is fired in part based upon the employee’s sex and the affected employee’s sex is a but for cause of his discharge.
In the situation of a person who is identified as a male at birth now identifies as a female, if the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates an employee as female at birth. In that situation, the individual employee’s sex plays an unmistakable and impermissible role in the termination. In the situation of a person who is identified as a male at birth now identifies as a female, if the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee female at birth. In that situation, the individual employee’s sex plays an unmistakable and impermissible role in the discharge decision.
Homosexuality and transgender status are inextricably bound up with sex.
It doesn’t matter when an employee treats one employee worse because of an individual’s sex that other factors may contribute to the decision.
Title VII simply doesn’t care when two causal factors may be in play. If an employer would not have discharged an employee but for that individual’s sex, the statute’s causation standard is met and liability may attach. For example, intentionally burning down a neighbor’s house is arson even if the perpetrator’s ultimate intention or motivation is only to improve the view. The same can be said for intentional discrimination based on sex violating title VII even if it is only intended as a means to achieving the employer’s ultimate goal of discriminating against homosexual or transgender employees.
Where an employer discriminates against homosexual or transgender employees, the employer is inescapably intending to rely on sex in the decision-making.
Title VII makes each instance of discriminating against an individual employee because of that individual’s sex an independent violation of title VII.
It is no defense for an employer to discriminate intentionally against an individual only in part because of sex. It is also no defense that the employer may happen to favor women as a class.
A world that appears evenhanded at the group level can prove discriminatory at the level of individuals.
An employer’s intentional discrimination on the basis of sex is no more permissible when it is prompted by some further intention or motivation.
It is irrelevant the label put on what an employer might call its discriminatory practices or what else might motivate it. That is, labels and additional intentions or motivations don’t make a difference when it comes to title VII liability.
The plaintiff’s sex need not be the sole or primary cause of the employer’s adverse action. So, it has no significance if another factor might also be at work or even plays a more important role in the employer’s decision.
Sorting out the true reason for an adverse employment decision is often a hard business, but none of that matters in this case.
It doesn’t matter that in common parlance a person may say that they were terminated because of sexual orientation or trans status rather than saying that they were terminated because of sex. In conversation, the speaker is likely to focus on what seemed most relevant or informative to the listener. So, an employee who had just been fired is likely to identify the primary and most direct cause rather than list every single but for cause. To do otherwise, would be really tiring. Even so, conversational norms or conventions do not control title VII’s legal analysis, which focuses on whether sex was a but four cause.
Where sex isn’t the only factor or maybe even the main factor, there still can be liability under title VII if it is a but for cause.
Nothing in title VII turns on the employer’s labels or any further intention for motivation for its conduct beyond sex discrimination.
By discriminating against transgender persons, the employer unavoidably discriminates against persons with one sex identified at birth and another today. Anyway you slice it, the employer intentionally refuses to hire applicants in part because of the affected individual’s sex regardless of whether it learned of the applicant’s sex in the first place.
Discrimination based on homosexuality or transgender status cannot happen without it also being discrimination based on sex.
Title VII prohibits all forms of discrimination because of sex regardless of how they manifest themselves or what labels someone might attach to them.
Just because Congress had never successfully added sexual orientation to title VII, that is not controlling. That is, speculation about why a later Congress declined to adopt new legislation offers a particularly dangerous basis and for the interpretation of an existing law a different and earlier Congress did adopt.
Title VII’s plain terms and the Court’s precedents don’t care if an employer treats men and women comparably as groups. If an employer fires both lesbian and gay men equally, that doesn’t diminish their liability but doubles it.
Often in life and in law, two or more factors combined to yield a result that could’ve also occurred in some other way. For example, if it’s a nice day outside and your house is too warm, you might decide to open the window. Both the cool temperature outside and the heat inside are but for causes of your choice to open the window. That decision doesn’t change just because you would’ve also opened the window had it been warm outside and cold inside.
For employer’s to say that sex must be the sole or primary cause of an adverse employment action for title VII liability, that suggestion is at odds with everything known about title VII.
Imposing a stricter causation test for use in cases involving sexual orientation or transgender status would create a curious discontinuity in the law to put it mildly.
Where the meaning of a statute is plain, the Court’s analysis ends there. That is, people are entitled to rely on the law as written without fearing that the court might disregard its plain terms based upon some extra-textual consideration.
Legislative history is meant to clear up ambiguity not create it.
The fact that a statute has been applied in situations not expressly anticipated by Congress does not demonstrate ambiguity, rather it demonstrates the breath of legislative command. It is the provisions of legislative command rather than the principal concerns of legislators that govern judicial interpretation.
When a new application emerges that is both unexpected and important, the dissenting opinions would have the question merely be pointed out and referred back to Congress while declining to enforce the plain terms of the law in the meantime. That type of reasoning has long been rejected by the Court.
It doesn’t make sense to say that a law is only as good as far as legislators intended its expected applications or its purpose at the time the law was enacted.
It isn’t necessarily clear that no one in 1964 or for some time after would have anticipated a holding that title VII protects people from discrimination if they are attracted to people of the same sex or are transgender. Shortly after title VII was passed, gay and transgender employees began filing title VII complaints. In the debate over the equal rights amendment, some people argue that the equal rights amendment might also protect homosexuals from discrimination.
Often lurking behind the objection about unexpected applications, is a cynicism that Congress could not possibly have meant to protect a disfavored group. For example, when the Court applied the ADA to prisons, some demanded a closer look. The Court emphatically rejected that view explaining that where the text was unambiguous, whether a specific application was anticipated by Congress was irrelevant.
To refuse enforcement just because you are applying protective laws to a group that was politically unpopular at the time of the law’s passage, not only requires the Court to abandon its role as interpreter of statutes, but it would also tilt the scales of justice in favor of the stronger popular group and neglect the promise that all persons are entitled to the benefit of the law’s terms.
If title VII’s plain text was only applied to the group expected in 1964, there would be a lot of law to overturn. In fact, many now obvious applications of title VII met with heated opposition early on even among those tasked with enforcing the laws. All you have to do to see that to see how the EEOC has evolved over the years with respect to what title VII covers.
Title VII prohibition of sex discrimination in employment is a major piece of federal civil rights legislation and was written in starkly broad terms. It has repeatedly produced unexpected applications. Congress’s key drafting choice to focus on discrimination against individuals rather than on groups and to hold employers liable whenever sex is a but for cause of the plaintiff’s injuries, virtually guaranteed that unexpected applications emerge over time.
Drafting new legislation or addressing unwanted consequences of old legislation is the responsibility of Congress.
With respect to parade of portables that may result from the decision, none of those are currently before the Court. To figure out those issues, you would need adversarial testing. Under title VII, bathroom, locker room, or anything else of the kind are not being addressed by this decision. Whether other policies and practices might or might not qualify as unlawful discrimination or find justification under other sections of title VII are questions for future cases (that includes any cases dealing with the issue of how protecting religious liberty interact with title VII, which in any event none of the parties argue was the case here).

Justice Alito’s Dissent

Sexual orientation and gender identity do not appear on the list of what employers may not do in title VII of the Civil Rights Act.
Since Congress had never amended title VII to include sexual orientation and transgender, title VII’s admonition that sex discrimination is prohibited means what it has always meant.
The Court has essentially taken a bill to amend title VII, which would specifically include sexual orientation and gender identity, and issued it under the guise of statutory interpretation. Such an approach is a brazen abuse of the Court’s authority to interpret statutes.
The concept of discrimination because of sex is entirely different than the concept of discrimination because of sexual orientation or gender identity.
The Court’s duty is to interpret statutory terms to mean what they conveyed to reasonable people at the time the statutory term was written. Accordingly, in 1964, it would have been hard to find anyone who thought that discrimination because of sex meant discrimination because of sexual orientation not to mention gender identity, a concept essentially unknown in 1964.
While the majority decision sails under a textualist flag, what it actually does is apply the theory that courts should update statutes so they better reflect the current values of society. That is an approach that Justice Scalia couldn’t stand. If that is the theory for what the court is doing, they should own up to it as Justice Posner did in the Hively
In 1964, it was as clear as clear could be that discrimination because of sex meant discrimination because of the genetic and anatomical characteristics that men and women have at the time of birth. You will not be able to find a single dictionary from that time defining “sex,” to mean sexual orientation, gender identity, or transgender status.
If sex and title VII mean biologically male or female, then discrimination because of sex means discrimination because the person in question is biologically male or biologically female, not because that person is sexually attracted to members of the same sex or identifies as a member of a particular gender.
The majority opinion spends a lot of time talking about what but for causation is and how it allowed for multiple causation. However, none of that matters if sexual orientation or gender identity does not inherently constitute discrimination because of sex in the first place.
There is not a shred of evidence that any member of Congress interpreted the statutory text to include sexual orientation or general identity when title VII was enacted.
Until 2017, every single Circuit Court to consider the question interpreting whether title VII prohibition against sex discrimination said that sex discrimination meant on the basis of biological sex. Further, the EEOC saw it that way for the first 48 years after title VII became law.
Even the Court concedes that sexual orientation and gender identity are different concepts then discrimination based upon sex. Further, neither sexual orientation nor gender identity is tied to either of the two biological sexes.
Just because the majority opinion repeats over and over again that discrimination because of sexual orientation or gender identity inherently and necessarily entails discrimination because of sex does not make it true.
It is quite possible for an employer to discriminate based upon sexual orientation or transgender status without taking the sex of an individual applicant or employee into account. The US military did that for years. Also, the attorney representing the employees conceded at oral argument that it was possible for an employer to discriminate based upon sexual orientation or transgender status without taking sex into account.
Title VII prohibits discrimination because of sex itself and not because of everything that is related to, based on, or defined with reference to sex.
The Court draws a distinction between things that are inextricably related and those that are related in some vague sense. However, that approach creates arbitrary lines separating the things that are related closely enough from those that are not.
Absolutely true that many people in 2020 and perhaps Congress if the majority had not intervened, believe that it is sound policy to hold that homosexuality or transgender status is not relevant to employment decisions. However, that is not the policy in title VII in its current form. Title VII prohibits discrimination based upon five specified grounds and sexual orientation or gender identity are not on the list. So as long as an employer does not discriminate based on one of the listed grounds, the employer is free to decide for itself which characteristics are relevant to its employment decisions. By proclaiming that sexual orientation and gender identity are not relevant to employment decisions, the court is updating title VII to reflect what it regards at 2020 values.
Until title VII adds sexual orientation as a protected characteristic, employers are free to discriminate based upon sexual orientation. Same for transgender status.
Title VII allows employer to decide whether two employees are materially identical. Even idiosyncratic criteria are permitted. While applying idiosyncratic criteria may be unfair and foolish, title VII permits it. Similarly until title VII is amended, discrimination against gays lesbians or transgender individuals is permitted.
Something that is not sex discrimination cannot be converted into sex discrimination by slapping on the label. Rather, the Court needs to show that a label is the correct label.
The employer’s real objection in the case before it is not attraction to men but homosexual orientation.
Homosexuality and transgender status are distinct concepts from sex. It is simply indefensible for the Court to say that the only possible interpretation is to conflate sex with transgender status and sexual orientation.
Title VII forbids discrimination because of sex and not because of sex stereotypes. Sexual stereotype evidence is related to showing that discrimination occurred because of sex, but that isn’t the same thing as saying title VII prohibits discrimination because of sex stereotyping.
In cases involving discrimination based on sexual orientation or gender identity, the employer’s decision that individuals should be sexually attracted only to persons of the opposite biological sex or should identify with the biological sex applies equally to men and women.
Discrimination because of sexual orientation is not historically tied to a project aiming to subjugate either men or women. An employer discriminating on that ground might be called homophobic or trans phobic but not sexist.
The primary definition of “sex,” in every dictionary refers to male and female based upon biology. That is true today as well as in 1964.
When interpreting a statute, a court has to consider how would the statute have been understood by ordinary people at the time of enactment. That is, judges should ascribe to the words of the statute what a reasonable person conversing with applicable social conventions would have understood them to mean at the time of adoption. So, slicing a statute into phrases while ignoring the setting of the enactment is a formula for disaster.
Textualism calls for an examination of the social context in which a statute was enacted because this may have an important bearing on what words were understood to mean at the time of enactment. That is to say, that you consider communication in the context of the community existing in a particular place and at a particular time. Therefore, those communication must be interpreted as they were understood by the community at the time.
In 1964, ordinary Americans reading title VII would not have dreamed that discrimination included sexual and orientation and gender identity.
In 1964, because of sex meant equal treatment for men and women.
Stretching back in time, 1879 even, you can look at many state and federal laws using language indistinguishable from title VII’s critical phrase, “discrimination because of sex.” In all those situations, the laws were part of a campaign for equality waged by women’s rights advocates for more than a century and meant equal treatment for men and women. Including sexual orientation or transgender status would have clashed in spectacular fashion with the societal norms of the day.
Looking at the norms of the day, Congress could have never included sexual orientation or transgender status within the definition of sex because at the time homosexuality was thought to be a mental disorder, morally culpable, and worthy of punishment.
It wasn’t until 1991 when agencies began to change their security policies and practices regarding sexual orientation.
While society has now come to recognize the injustice of past practices and that provides an impetus to update title VII, that is not the job of the judiciary.
Transgender as a term didn’t come up until the 1970s. Gender identity didn’t appear until 1964 in an academic article. Also, common parlance and dictionaries of the time were still focused on biological sex. It wasn’t until 1980 that the DSM recognize transgender status in some way. Sex reassignment surgery were not performed until 1966, and the great majority of physicians surveyed in 1969 thought that a person seeking sex reassignment surgery was severely neurotic or psychotic. So, it defies belief that the public meaning of discrimination because of sex in 1964 could have possibly encompassed sexual orientation and transgender status.
What the public thought in 1964 is relevant and important because it helps explain what the text was understood to mean when it was adopted.
The Court’s citation of various cases are of no help because all of those cases clearly focus on sex.
In the thinking of Congress and the public in 1964, discrimination based upon sexual orientation and transgender status would not have been evil at all.
The essential question of whether discrimination because of sexual orientation or gender identity constitute sex discrimination is the same regardless of what causation standard is applied. Accordingly, the Court’s extensive discussion of causation standard is just blowing smoke.
An employer discriminating equally on the basis of sexual orientation or transgender status applies the same criteria to every affected individual regardless of sex.
When there is an ambiguity in the terms of the statute, the Court has found it appropriate to look to other evidence of congressional intent, including legislative history. However, the Court refuses to do so here.
The person who added sex to title VII of the Civil Rights Act would have been better off looking for a poison pill by inserting the term sexual orientation or gender identity rather than sex. However, all of the legislative history reveals that the debate was exclusively focused on biological sex.
Since 1975, legislators have tried to add sexual orientation the title VII to no avail. Accordingly, you would be hard-pressed to say that sexual orientation is the same thing as sex discrimination and the courts have said as much. Until 1991, the EEOC agreed.
The Court has no qualms about disregarding over 50 years of uniform judicial interpretation of title VII’s plain text.
The majority decision is going to have a huge impact on the law in a variety of ways. For example, over 100 federal statutes prohibit discrimination because of sex. The court’s refusal to consider the consequences of its reasoning is irresponsible. The Court would have been better off allowing the legislative process to take its course so that they could consider competing interests and find a way to accommodate at least some of them. By intervening this way, the Court has greatly impeded and perhaps effectively ended any chance of a bargained legislative resolution.
Other ways this decision may impact the law include: 1) whether transgender individuals can now use a bathroom or locker room reserved for persons of the sex they identify with; 2) whether a gender fluid person has the right to use a bathroom or locker room they identify with; 3) whether a transgender individual has the right to participate on a sports team or in an athletic competition previously reserved for members of one biological sex (Justice Alito notes this kind of litigation is already happening); 4) whether a college can refuse to prevent opposite biological sex as roommates; 5) whether religious organizations can refuse to hire people based upon sexual orientation or transgender status. True, religious organization get a pass if the employee is a minister, as we discussed here, but not all employees of religious organizations are ministers; 6) whether transgender employees can challenge employer-provided health insurance plans not covering costly sex reassignment surgery; and 7) whether a person can claim that the failure to use their preferred pronoun violates one of the federal laws prohibiting sex discrimination; and 8) whether sexual orientation and transgender individuals are now subject to a heightened standard review with respect to constitutional law. Although the Court does not want to think about the consequences of the decision, it will not be able to avoid these issues for long. The entire federal judiciary will be tied up for years with these kind of disputes.

III

Justice Kavanaugh’s Dissent

The responsibility to amend title VII belongs to Congress and to the president not to the Court.
Bills to include sexual orientation in title VII have always failed before Congress.
Title VII did not include disability discrimination or age discrimination when enacted. Congress had to come up with separate laws for that.
Judges cannot simply rewrite the law because of their own policy views. Rather, that is for the legislature to do.
Since judges interpret the law as written not as they wish it would be to written, it makes perfect sense that the first 10 United States Court of Appeals to consider whether title VII prohibit sexual orientation all said no.
Whether a literal meaning or an ordinary meaning of the terms is used to approach this decision, the inescapable conclusion that sexual orientation and transgender status is not the same at discrimination based upon sex.
Ordinary meaning approach is the preferred way to go because of respect for the rule of law and democratic accountability. The Court over time has consistently use ordinary meaning rather than literal meaning when looking at statutes. When ordinary meaning and literal meaning conflict with each other, courts have to follow the ordinary meaning.
Courts have to look to the ordinary meaning of the phrase as a whole and not just to the meaning of the words in the phrase. That is because the phrase may have a more precise or combined meaning than the literal meaning of the individual words and the phrases.
Assessing ordinary meaning is not difficult in this case. Both common parlance and common legal usage view of sex discrimination and sexual orientation discrimination as distinct categories of discrimination, back in 1964 and even today.
To say that sexual orientation and transgender status includes sex rewrites history. The women’s rights movement is not the gay rights movement, though many people support both. To say that sexual orientation discrimination is just a form of sex discrimination is a mistake of history and sociology.
Where sexual orientation is prohibited, every single federal statute has explicitly stated this much.
Differences in language convey differences in meaning.
Presidential executive orders also reflect the common understanding that sexual orientation is not the same as sex discrimination. Same goes for federal regulations.
In all the prior cases dealing with sexual orientation that have come before the court, not a single Justice even stated or hinted that sexual orientation discrimination is a form of sex discrimination and therefore gets heightened scrutiny under the equal protection clause. There is not even a trace of any such reasoning in those cases because presumably everyone understood that sexual orientation is distinct from sex discrimination.
The majority opinion makes a fundamental mistake by confusing ordinary meaning with subjective intentions. The majority decision will also promote cynicism about the role of judges because judges need to decide on the law rather than on personal preference.

Thoughts/Takeaways

So, what do you think? Do you think Justice Gorsuch has it right or do you think Justices Alito and Kavanaugh have it right? In addition to your political views, your answer very much might depend upon how you view the role of the judiciary. This blog entry is comprehensive, and so you have plenty of information to make that decision with.
This case is going to be absolutely huge persons with disabilities in several respects. First, we know from this blog entry that retaliation is but for. It was debatable as to whether but for causation applied to title I matters, such as we discussed here. Now, that discussion is academic. We now know that but for can still be the rule even if it is does not mean sole cause. That is, this case makes clear that there can be more than one but for cause. Often times, in employment matters there is more than one but for cause. So, the debate over whether title I has a different causation standard than the retaliation provision of title V is now academic. It’s pretty clear that the rule is but for. However, but for does not mean sole cause. Over and over again, Justice Gorsuch says in his opinion that multiple but for causes are perfectly possible. Where any one of those but for causes exist, liability attaches regardless of whether it is just one part of a larger whole. Many years ago I recall asking a plaintiff attorney for a nonprofit disability rights group about his view of motivating factor litigation. He had told me that jurors didn’t understand motivating factor, and he simply did not understand all the litigation over motivating factor jury instructions. I specifically remember him telling me that jurors are much more likely to understand but for. I can’t remember his name, but he was a prophet.
The second way this case will have an absolutely huge impact on people with disabilities is in the area of equal protection and in the area of sovereign immunity. As you may recall from this blog entry, both of those areas involve figuring out what equal protection classification persons with disabilities fall into. From there, you figure out whether the equal protection clause was violated or not. On the sovereign immunity side, the classification matters because that is what dictates whether the scheme is proportional to the harm being redressed. When it comes to persons with disabilities, we know per this blog entry, that when it comes to accessing the courts, persons with disabilities are at least in the intermediate if not higher level of scrutiny. However, everything else is on a case-by-case basis when it comes to persons with disability. For example, with respect to employment people with disabilities are in the rational basis, lowest, class per this case. Since sexual orientation and transgender discrimination is now sex discrimination, an argument can be made that for purposes of equal protection clause and for purposes of sovereign immunity litigation, people alleging discrimination based upon sexual orientation or transgender status receive a heightened level of scrutiny. If that is the case, that would mean that people facing discrimination on the basis of sexual orientation or transgender status are often times in a higher equal protection classification than persons with disabilities.
The third way this case impacts upon people with disabilities is through the Rehabilitation Act. Under 29 U.S.C. §794 causation is, “solely by reason of.” That means under this case that causation in Rehabilitation Act matters is truly sole cause. One wonders if the upcoming election results in a complete turn over to control this November, certainly no guarantees that it will, whether you would not see an effort to amend the Rehabilitation Act to delete the word, “solely” from 29 U.S.C. §794.
When I was teaching people how to be paralegals, one of the classes I taught was an introduction to philosophy course. In that course, the student learned that the slippery slope argument, which we lawyers are so fond of using, is actually a logical fallacy. That is, everything depends upon its facts, especially in the law, and so there isn’t such a thing as a slippery slope. That may not be the case here. We are already seeing litigation over bathrooms, and in Connecticut we are seeing litigation over whether transgender students can compete on athletic teams of the gender they identify with rather than their biological gender. I already mentioned the equal protection and sovereign immunity piece. I am also already aware of litigation over failure to provide insurance for sex reassignment surgery. Of course, you have the litigation over how the military currently treats trans individuals. It is also perfectly realistic to expect litigation against religious-based entities that discriminate on the basis of sexual orientation or transgender status where that individual is not a minister.
Previously, as mentioned at the top of this blog entry, I have gone through all of Justice Gorsuch’s opinions on disability rights to try and figure out how he might handle disability related cases at the United States Supreme Court. From that review, I did see a stream going through his opinions of how common sense matters. You see some of that in his decision in this case. I have his book that came out shortly after he was put on the Court. I now plan to read it with an eye to see if I can figure out how he got to where he got with respect to the majority opinion.
Justice Roberts also joined the opinion. Previously, he had dissented in gay-rights decisions earlier, such as Masterpiece Cake and Obergefell.
Interesting that Justice Gorsuch brings up the debate about the equal rights amendment. I am pretty sure that the arguments about how the ERA would protect homosexuals from discrimination was a big point made by the anti-ERA activist and not by the pro-ERA side.
Interesting that both Justice Gorsuch and Justice Alito say they are squarely in Justice Scalia’s way of looking at things. That shows just how huge of an impact Justice Scalia has had on the Supreme Court.
Very unclear now why a trans individual would even consider ADA claims when they can now proceed under title VII. After all, the ADA has an exception that can make it difficult for trans individual to proceed under the ADA. See also this blog entry.

EEOC and Covid-19: Part IV

By William Goren on June 12, 2020

Posted in ADA, Final Federal Regulations, Rehabilitation Act, Title I

I have talked about the EEOC and Covid-19 guidelines that have been coming out from time to time before here, here, and here. On June 11, the EEOC came out with some more questions. Assuredly, my fellow employment law bloggers-such as Robin Shea, Eric Meyer, and Jon Hyman will probably have something to say on the subject, and I know Eric already has-, but I thought I would add my own views here. Since the EEOC lets you know by date when the question and the answer has been posted, we know just what are the latest questions and answers put out by the EEOC. So, there is no need to address the entire document. The new questions are: D .13; E .3; E .4; G .6; G .7; H .1; I .1; J .1; and J .2. The way this blog entry will work is that I will list EEOC question and answer. After that, I will give my thoughts/takeaways.

D.13. Is an employee entitled to an accommodation under the ADA in order to avoid exposing a family member who is at higher risk of severe illness from COVID-19 due to an underlying medical condition? (6/11/20)

No. Although the ADA prohibits discrimination based on association with an individual with a disability, that protection is limited to disparate treatment or harassment. The ADA does not require that an employer accommodate an employee without a disability based on the disability-related needs of a family member or other person with whom she is associated.

For example, an employee without a disability is not entitled under the ADA to telework as an accommodation in order to protect a family member with a disability from potential COVID-19 exposure.

Of course, an employer is free to provide such flexibilities if it chooses to do so. An employer choosing to offer additional flexibilities beyond what the law requires should be careful not to engage in disparate treatment on a protected EEO basis.

Thought/Takeaways: Absolutely true that association discrimination does not provide for reasonable accommodations to the person associating with a person with a disability. However, failure to engage in the interactive process to try to work something out may indicate discriminatory intent upon the part of the employer. There is no reason why an employer can’t go beyond what the law allows. Previously, the EEOC has said that the pandemic demands more flexibility. So, failing to accommodate individuals who associate with a person with a disability may cost you an excellent employee. Depending upon whether you try to work something out first, it may also indicate discriminatory intent. So, why not try and work something out? Finally, if you are going to go beyond the floor of the ADA by allowing accommodations for people who associate with high risk individuals for Covid-19, be sure to offer that opportunity to every one of your employees.

E.3. How may employers respond to pandemic-related harassment, in particular against employees who are or are perceived to be Asian? (6/11/20)

Managers should be alert to demeaning, derogatory, or hostile remarks directed to employees who are or are perceived to be of Chinese or other Asian national origin, including about the coronavirus or its origins.

All employers covered by Title VII should ensure that management understands in advance how to recognize such harassment. Harassment may occur using electronic communication tools – regardless of whether employees are in the workplace, teleworking, or on leave – and also in person between employees at the worksite. Harassment of employees at the worksite may also originate with contractors, customers or clients, or, for example, with patients or their family members at health care facilities, assisted living facilities, and nursing homes. Managers should know their legal obligations and be instructed to quickly identify and resolve potential problems, before they rise to the level of unlawful discrimination.

Employers may choose to send a reminder to the entire workforce noting Title VII’s prohibitions on harassment, reminding employees that harassment will not be tolerated, and inviting anyone who experiences or witnesses workplace harassment to report it to management. Employers may remind employees that harassment can result in disciplinary action up to and including termination.

Thoughts/takeaways: Keep in mind, hostile work environment has been held to extend to persons with disabilities as well. I can definitely see backlash against people with underlying conditions that are getting certain accommodations that other people are not getting because they have been called back to the physical site. I also could see similar backlash against people who associate with those with underlying conditions particularly where the employer goes beyond the ADA floor and offers accommodation to those individuals. Finally, it wouldn’t surprise me for people to not understand what are the risk of associating with someone who has already had Covid-19. It is entirely possible that some people may be alarmed by associating with people who have had it already.

E.4. An employer learns that an employee who is teleworking due to the pandemic is sending harassing emails to another worker. What actions should the employer take? (6/11/20)

The employer should take the same actions it would take if the employee was in the workplace. Employees may not harass other employees through, for example, emails, calls, or platforms for video or chat communication and collaboration.

Thought/Takeaways: No argument here.

G.6. As a best practice, and in advance of having some or all employees return to the workplace, are there ways for an employer to invite employees to request flexibility in work arrangements? (6/11/20)

Yes. The ADA and the Rehabilitation Act permit employers to make information available in advance to all employees about who to contact – if they wish – to request accommodation for a disability that they may need upon return to the workplace, even if no date has been announced for their return. If requests are received in advance, the employer may begin the interactive process67. An employer may choose to include in such a notice all the CDC-listed medical conditions that may place people at higher risk of serious illness if they contract COVID-19, provide instructions about who to contact, and explain that the employer is willing to consider on a case-by-case basis any requests from employees who have these or other medical conditions.

An employer also may send a general notice to all employees who are designated for returning to the workplace, noting that the employer is willing to consider requests for accommodation or flexibilities on an individualized basis. The employer should specify if the contacts differ depending on the reason for the request – for example, if the office or person to contact is different for employees with disabilities or pregnant workers than for employees whose request is based on age or child-care responsibilities.

Either approach is consistent with the ADEA, the ADA, and the May 29, 2020 CDC guidance68 that emphasizes the importance of employers providing accommodations or flexibilities to employees who, due to age or certain medical conditions, are at higher risk for severe illness.

Regardless of the approach, however, employers should ensure that whoever receives inquiries knows how to handle them consistent with the different federal employment nondiscrimination laws that may apply, for instance, with respect to accommodations due to a medical condition, a religious belief, or pregnancy.

Thought/Takeaways: An employer is obligated to begin the interactive process once they have reason to know that an accommodation might be needed. Magic words are not required. Much of paragraph 1 of this section assumes an environment where people with disabilities feel comfortable disclosing their disability. Those environments, as we discussed in this blog entry, are unfortunately few and far between. Absolutely agree that employees need to know where to go to begin any accommodation process. Finally, employees receiving inquiries either need to know how to handle those inquiries themselves with or without legal counsel or they need to direct the inquiries to somebody who can handle those inquiries with or without legal counsel. For example, if you take federal funds and have 15 or more employees, you must have a §504 coordinator and a §504 grievance procedure. If you are a title II entity and have 50 or more employees, you have to have an ADA coordinator and an ADA grievance procedure. As a matter of preventive law, it is a good idea to have an ADA/§504 coordinator and an ADA/§504 grievance procedure regardless. The ADA/§504 coordinator doesn’t necessarily have to be knowledgeable on ADA/§504 matters. It is certainly helpful if they are. If they are not, they need to know who can handle such requests and who can get the requests resolved with or without legal counsel.

G.7. What should an employer do if an employee entering the worksite requests an alternative method of screening due to a medical condition? (6/11/20)

This is a request for reasonable accommodation, and an employer should proceed as it would for any other request for accommodation under the ADA or the Rehabilitation Act. If the requested change is easy to provide and inexpensive, the employer might voluntarily choose to make it available to anyone who asks, without going through an interactive process. Alternatively, if the disability is not obvious or already known, an employer may ask the employee for information to establish that the condition is a disability69 and what specific limitations require an accommodation. If necessary, an employer also may request medical documentation to support the employee’s request, and then determine if that accommodation or an alternative effective accommodation can be provided, absent undue hardship.

Similarly, if an employee requested an alternative method of screening as a religious accommodation, the employer should determine if accommodation is available under Title VII.

Thought/Takeaways: As mentioned above, magic words are not required. Handle a request for Covid-19 based reasonable accommodations just like you would any other request for reasonable accommodation.

H. Age

H.1. The CDC has explained that individuals age 65 and over are at higher risk for a severe case of COVID-19 if they contract the virus and therefore has encouraged employers to offer maximum flexibilities to this group. Do employees age 65 and over have protections under the federal employment discrimination laws? (6/11/20)

The Age Discrimination in Employment Act (ADEA) prohibits employment discrimination against individuals age 40 and older. The ADEA would prohibit a covered employer from involuntarily excluding an individual from the workplace based on his or her being 65 or older, even if the employer acted for benevolent reasons such as protecting the employee due to higher risk of severe illness from COVID-19.

Unlike the ADA, the ADEA does not include a right to reasonable accommodation for older workers due to age. However, employers are free to provide flexibility to workers age 65 and older; the ADEA does not prohibit this, even if it results in younger workers ages 40-64 being treated less favorably based on age in comparison.

Workers age 65 and older also may have medical conditions that bring them under the protection of the ADA as individuals with disabilities. As such, they may request reasonable accommodation for their disability72 as opposed to their age.

Thought/Takeaways: It is absolutely true that employers are free to provide flexibility to workers age 65 and older. However, that flexibility should be offered to all your employees. Also, don’t forget that with the amendments to the ADA it isn’t all that difficult for person to have an ADA protected disability. Remember, magic words are not required to begin the interactive process.

I. Caregivers/Family Responsibilities

I.1. If an employer provides telework, modified schedules, or other benefits to employees with school-age children due to school closures or distance learning during the pandemic, are there sex discrimination considerations? (6/11/20)

Employers may provide any flexibilities as long as they are not treating employees differently based on sex or other EEO-protected characteristics. For example, under Title VII, female employees cannot be given more favorable treatment than male employees because of a gender-based assumption about who may have caretaking responsibilities for children.

Thought/Takeaways: If you are providing flexibility for your employees, make sure you are offering that flexibility to everyone and not just favoring one group of individuals.

J. Pregnancy

J.1. Due to the pandemic, may an employer exclude an employee from the workplace involuntarily due to pregnancy74? (6/11/20)

No. Sex discrimination under Title VII of the Civil Rights Act includes discrimination based on pregnancy. Even if motivated by benevolent concern, an employer is not permitted to single out workers on the basis of pregnancy for adverse employment actions, including involuntary leave, layoff, or furlough.

Thought/Takeaways: No argument. This has been the law for many many years.

J.2. Is there a right to accommodation based on pregnancy during the pandemic? (6/11/20)

There are two federal employment discrimination laws that may trigger accommodation for employees based on pregnancy75.

First, pregnancy-related medical conditions may themselves be disabilities under the ADA, even though pregnancy itself is not an ADA disability. If an employee makes a request for reasonable accommodation due to a pregnancy-related medical condition, the employer must consider it under the usual ADA rules.

Second, Title VII as amended by the Pregnancy Discrimination Act specifically requires that women affected by pregnancy, childbirth, and related medical conditions be treated the same as others who are similar in their ability or inability to work. This means that a pregnant employee may be entitled to job modifications, including telework, changes to work schedules or assignments, and leave to the extent provided for other employees who are similar in their ability or inability to work. Employers should ensure that supervisors, managers, and human resources personnel know how to handle such requests to avoid disparate treatment in violation of Title VII.

Thoughts/Takeaways: Per Young v. UPS, you want to put on your ADA reasonable accommodation hat whenever dealing with women affected by pregnancy, childbirth, and related medical conditions.

Issues, Statistics, and Thoughts

By William Goren on June 8, 2020

Posted in ADA, Title I, Title II, Title III

I thought I would do a different kind of blog entry this week. Last week, I attended a zoominar (should I trademark “zoominar?”:-), on issues facing persons with disabilities in light of the Covid-19 pandemic. It was put on by Steve Gordon an Assistant Attorney General in the Eastern District of Virginia. I was very impressed how clued in he was to the disability community. He had lots of different elements of the disability community speaking. The blog entry today is divided into the following categories: issues noted on call; statistics; and thoughts/takeaways. I’m figuring that the reader is probably going to want to read the whole thing.

Issues Noted on Call (these are all issues that persons with disabilities are facing with the Covid-19 pandemic):

Compliance with effective communication rules;
Healthcare facilities not allowing people with disabilities to bring their support people with them;
Accessibility of telehealth visits for those with vision impairments and the deaf, Deaf, and hard of hearing communities;
Accessibility of distance learning;
Accuracy of auto captioning and captioning in general;
Masks
Drive-up services;
Inaccessibility of retail stores;
Employers needing to adjust for employees who are at high risk or whom associate with high risk individuals;
Healthcare rationing;
Reasonable modifications where close contact is required for certain programs, services, and activities.
Accessibility of higher education when education is remote in part or completely;
Return to work issues;
Accessibility of K-12 to persons with disabilities when education is remote in part or completely;
Digital accessibility;
Accessibility of Covid-19 briefings to Deaf* individuals and qualifications of interpreters;
Excessive use of VRI (not a new problem);
Telework as a reasonable accommodation.
Return to school for persons with disabilities with underlying conditions (students or faculty).

*A culturally deaf individual is a person meeting the following criteria: 1) ASL is their first language; 2) attended a school for the deaf; and 3) is severely to profoundly hard of hearing. I myself have #3 but not the other two.

As you can see, accessibility issues are everywhere. Also, this list is by no means exclusive.

Statistics:

One of the publications that I subscribe to is Disability Compliance For Higher Education put out by Wiley periodicals. If you want to keep up with disability compliance in higher education, I highly recommend the publication. I was going through the back issues the other day, and I found a very interesting piece by Halley Sutton on a study that found people hide their disability at work. The study was conducted by the Center for Talent Innovation and published in the Harvard Business Review. In another issue, I found a discussion of a worldwide survey of people in doctorate programs. Here are some statistics mentioned in both of those articles:

30% of the workforce matches the ADA definition of a disability;
Only 39% of those with a disability disclose that fact to an employer;
Only 24% of those with a disability disclose their disability to their team;
Only 21% of those with a disability disclose their disability to human resources;
Only 4% of those with a disability disclose their disability to a client;
Only 13% of employees surveyed with a disability said at least one of their disabilities was visible;
62% of respondents reported their disability was not visible;
26% reported that their disability could be either visible or invisible depending upon the circumstances;
Employees with disabilities who disclosed to most people they interact with are twice as likely to feel content and happy at work as their peers who do not disclose their disabilities;
Employees with disabilities who disclose their disability to those they work with regularly are less likely to feel nervous, anxious, or isolated at work than their peers with disabilities who do not disclose;
Signals a person with a disability can use to help determine whether a workplace is a safe space to disclose their disability include: 1) look for signals of support. For example, is there transparency around workplace accommodation during orientation? (These words are taken directly from the article. I am not exactly sure what transparency around workplace accommodation during orientation means. Perhaps, it mean the signals you get during orientation with respect to the employer’s sensitivity to disability issues and to accommodating people with disabilities). Is disability listed as an aspect of diversity in the organization’s diversity statement?; 2) get to know your manager. Inclusive managers make sure everyone gets heard, offer actionable feedback, take advice, empower team members, and make it safe to propose ideas and share credit; 3) identify an ally. That is, if a manager does not seem inclusive look for other leaders in the company who are, or look for organizational advocacy and mentorship options; and 4) join or start an employee resource group;
In a different study, the fifth annual survey of doctoral students across the globe by Nature Magazine, we find other statistics, including: 1) 36% of doctoral students around the globe report suffering from anxiety and depression caused by their doctorate studies and sought help for those conditions in the last year. A 300% increase from 2017; 2) 18% reported seeking help at their institution and did not feel supported in doing so; 3) nearly 10% reported that they tried to seek help for mental health concerns at their institution but such help was not readily available; 4) more than ¼ of students did report receiving adequate assistance at their institution for mental health concerns; 5) more students disagree then agree that the university or college offered adequate one to one mental health support; 6) and more than 40% of students did not feel their institution had adequate mental health resources specifically tailored to meet the needs of doctoral students;

III

My Thoughts/Takeaways

As a deaf individual who gets 50% of his comprehension from lip reading, masks are a big deal. It works the other way to for those with underlying health conditions. The key is the interactive process.
With everything moving online, effective communication becomes even more complicated. Nevertheless, the effective communication rules still have to be complied with.
Just because faculty and students at schools are working from home does not mean their ADA related obligations end. Same goes for related laws, such as IDEA and §504 of the Rehabilitation Act.
I just read an article today in the Atlanta Journal-Constitution about how one of the ways the State of Georgia is going to deal with budget cuts is to go all in on telework. It saves a tremendous amount of money poured into the physical plant normally. The article talks about how the State of Georgia had an epiphany when it found out that so much work could be done remotely and did not need to be in person. This has absolutely huge implications as to whether attendance is an essential function of the job. An absolute huge issue going forward will be the debate over whether attendance is a personal preference or an essential function of the job. Before the pandemic, most people would say attendance was an essential function of the job. Now, I am not so sure. As a result of the way the world has responded to the Covid-19 pandemic, a strong argument exists that attendance is a personal preference for many jobs and not an essential function at all. You may want to review this blog entry and place it in the current context of where we are with how we are dealing with the Covid-19 pandemic to figure out when a job might require attendance as an essential function. Perhaps, that is something I need to do as a separate blog entry.
The DOJ as well as Health and Human Services have made it quite clear that they are not going to tolerate healthcare rationing. That is, healthcare services should be based upon an individual’s current condition and not based upon subjective notions of the patient’s quality of life.
What is a fundamental alteration is a case-by-case determination.
Digital accessibility is not a new issue but becomes more important now with the pandemic.
Some of these issues are quite complicated with respect to ADA compliance. So, utilizing ADA knowledgeable individuals, including ADA knowledgeable counsel/consultants when necessary, is critical.
With respect to the statistics I mentioned, if the statistics show anything, the number of people feeling comfortable disclosing their disability to employers is extremely low. Such few people disclosing their disability means that the culture of various employers is not sufficiently accepting of people with disabilities in the way they should be. This is something that employers need to change. There is a tremendous amount of press at the moment about making places of employment open places for those who are minorities. In doing that, don’t forget about people with disabilities as well.
The problem with not disclosing a disability is that it gives an employer the right to go about their business as if the disability doesn’t exist. An employer cannot make reasonable accommodations if they don’t know about it. That said, employees are worried about keeping their jobs and not making their jobs miserable if they ask for reasonable accommodations. Clearly, from the statistics, there is a lot of work ahead for employers to make their employees with disabilities comfortable in disclosing.
On the legal side, corporations may want to insist on their outside counsel staffing their cases with attorneys with disabilities as a condition of keeping their outside counsel status. I know Sidley and Austin for example has several clients that insist on disability considerations as part of contracting with them. I also agree that employee resource groups can be very helpful. Also, affinity bar groups can be very helpful. With respect to disability affinity bar groups, they are few and far between. One that is out there is the Deaf And Hard Of Hearing Bar Association, but to my knowledge little else exists. I know from first-hand experience that broad based disability organizations can be very difficult to pull off. I am also aware of big firms that have set up employee resource groups for people with disabilities, including but not limited to Sidley and Austin and Reed Smith.
It doesn’t surprise me that only 4% of people with disabilities disclose their disability to a client. I happen to use it as a marketing tool. Also, I know other attorneys that successfully use their disability in the context of showing clients how they could overcome a disability. Clients can be impressed by that.
Disclosure is an intensely personal call and depends on a myriad of individual factors as well as on the setting. That said, disclosing a disability can have very beneficial psychological effects. It also gives a person with a disability the ability to exercise their rights under the ADA/§504. In my practice, I have seen real problems arise when a person does not disclose early.
One of the things that the LGBT human movement did was encouraging self-disclosure whenever possible. What they found is that the more people worked with people who were out, the more comfortable people became. Disability disclosure is much more complicated because there are all kinds of stigmas, stereotyping, as well as misinformation about what it costs to accommodate a disability. Nevertheless, the more people get used to dealing with people who are open about their disabilities, the more people will get used to it. A big game changer is going to be how we have responded to the Covid-19 pandemic. So many of the accommodations that people with disabilities have been asking for in the past are now given as a matter of course. People with disabilities are likely to remember that.
Finding allies and mentorship for people with disabilities is a big issue. If my experience is any indication, this piece is not easy to figure out at all.
Are we prepared for the coming mental health crisis? I don’t think so. It will make for very busy times for anyone specializing in ADA compliance.

What Does Transitory and Minor Mean for Purposes of Regarded As Claims

By William Goren on June 1, 2020

Posted in ADA, Final Federal Regulations, Guidances, Rehabilitation Act, Title I, Title II, Title III

Before moving on to today’s blog entry, I want to point out an excellent blog entry from my friend, colleague, and fellow blogger, Robin Shea. Last week, she blogged on the situation of what can happen when you have an incomprehensible drug policy that nobody understands that is not applied effectively. In short, it creates a big mess. Her blog entry is excellent and I don’t think I can add much to it, which is the reason I decided not to blog on it. The only thing I will say about the blog entry is to be sure that when you are trying to figure out whether a person can do the essential function of the job that you remember that under the ADA, the question is whether the person can do the essential functions of the job with or without reasonable accommodations. Her blog entry, which can be found here, is excellent and I commend everyone to its reading.

As I mentioned last week, one of the ways I find cases to blog on is from social media. In particular, I am very active on LinkedIn. This case comes to me courtesy of David Fram posting on LinkedIn. David is with the National Employment Law Institute and is a fountain of good information. Also, my friend, colleague, and fellow blogger, Eric Meyer, has an excellent blog entry on our case, here (more on that later). Our case comes from the Third Circuit and is Eshleman v. Patrick Industries, Inc. a published decision decided on May 29, 2020. The case asks the question just what does transitory and minor mean for purposes of the regarded as exception. That is, under 42 U.S.C. §12102(3)(B), a person with a condition that is both transitory and minor does not get to pursue a regarded as claim. Until this decision, there simply has not been a lot of case law at to what transitory and minor means. Beyond the regarded as situation, knowing what transitory and minor means is also helpful for trying to figure out if you have an actual disability that doesn’t last long. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning transitory and minor are two different concepts; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

Facts

Between October 14, 2015 and December 14, 2015, plaintiff took medical leave to undergo surgery to remove a nodule from his left lung. He told his supervisor the nodule had to be removed and tested for cancer. After two months of medical leave, plaintiff returned to working at full capacity without restrictions. However, about six weeks later, plaintiff suffered a severe respiratory infection lasting from January 27, 2016 until January 31, 2016. His supervisor approved two vacation days during that time. With his physician’s approval, plaintiff returned to working at full capacity on February 1, 2016. At the end of his shift on his second day back, defendant fired him.

The superintendent where plaintiff worked told plaintiff he was terminated due to performance issues. However, plaintiff reminded the superintendent that his performance review from early January 2016 had been excellent, with all 4.5’s and one 5 out of a possible five in each category evaluated. Subsequently, the superintendent claimed that plaintiff was fired because he had not called out sick during his recent leave for upper respiratory infection. Later on, plaintiff was told yet a different reason, namely that his employer was claiming that he had been fired for behavioral issues.

At the District Court level, the District Court granted summary judgment to the employer because it concluded that plaintiff’s disability was transitory and minor and therefore excluded under the regarded as prong. Plaintiff appealed saying that the court forgot to realize that transitory and minor were two different concepts.

Court’s Reasoning Holding That Transitory and Minor Are Two Different Concepts

To state a claim under the ADA, a plaintiff has to show: 1) he is a person with a disability under the ADA; 2) he is otherwise qualified to perform the essential functions of the job with or without reasonable accommodations by the employer; and 3) he has suffered an otherwise adverse employment decision as a result of discrimination.
A plaintiff states a regarded as claim if he establishes that he has been subjected to an action prohibited by the ADA because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.
An employer regards a person as having a disability when it misinterprets information about an employee’s limitations and concludes that the employee is incapable of performing his or her job requirements.
The reason the ADA includes regarded as claims is because being perceived as a person with a disability can prove just as disabling to a person as actually having a physical or mental impairment.
The ADA limits regarded as claimed by excluding impairments that are transitory and minor.
While the ADA defines “transitory” as an impairment with an actual or expected duration of six months or less, it doesn’t define minor.
No one disputes that plaintiff pled sufficient facts to state a regarded as claim.
ADA regulations at 29 C.F.R. §1630.15(f), clearly states that an employer must establish that a perceived impairment is objectively both transitory and minor. So, transitory is just one part of the two prong transitory and minor exception.
The EEOC’s interpretive guidance says that transitory and minor requires a showing that the impairment is both transitory and minor, and clarifies that the six month time limit applies only to the transitory prong of the exception. In particular, the EEOC’s interpretive guidance gives an example of a person with a minor back injury lasting more than six months. The EEOC says in that example that while the injury is minor, the impairment is not transitory. So, the opposite of that must be true. That is, an impairment that is transitory because it lasts less than six months but is objectively non-minor also falls outside the transitory and minor exception.
Looking at only impairments that are both transitory and minor is consistent with congressional intent to expand ADA coverage through the amendments to the ADA. As the House Judiciary Committee report on the amendments to the ADA explains, when including regarded as claims under the ADA Congress did not expect or intend this to be a difficult standard to meet. The report goes on to explain that the transitory and minor exception was intended only to weed out claims at the lowest end of the spectrum of severity, such as common ailments like the cold or the flu, and that the exception should be construed narrowly. Therefore, treating transitory and minor as separate and distinct elements is consistent with the ADA’s intent to afford broad coverage under the regarded as provision.
In determining whether an impairment is minor, the district court should have considered such factors as the symptoms and severity of the impairment, the type of treatment required, the risks involved, whether any kind of surgical intervention is anticipated or necessary, and the nature and scope of any postoperative care. After all, a broken pinky finger treated with a splint is hardly comparable to removing a lung nodule by surgery. Since even minimally invasive lung surgery is still thoracic surgery, more than likely requiring inpatient care, it is plausible that the lung surgery was non-minor.
Plaintiff alleges that the employer perceived his recent medical issue to signify an ongoing health condition. In particular, he alleges that it was the lung surgery combined with the severe respiratory infection, close in time ailments affecting the same system of the body, that led his employer to perceive him as a person with a disability.
Plaintiff’s complaint contains plausible allegation that his employer regarded his series of recent medically related absences as signs of a continuing medical condition rendering him damaged goods and therefore unemployable.
In a footnote, the court noted that expert testimony is not needed to appreciate that a very serious medical condition may require only a single surgical procedure.
Cases cited by the employer are not persuasive because those cases fail to make distinct findings about whether the impairment is both transitory and minor. On the other hand, the Seventh Circuit in Silk v. Board of Trustees, Moraine Valley Community College specifically stated that the ADA defines transitory but left minor undefined. They then concluded that a particular disability, in that case a heart condition severe enough to require triple bypass surgery, could not be said to be both transitory and minor. So, the Seventh Circuit treated transitory and minor as separate and distinct inquiries with respect to the regarded as exception.

III

Thoughts/Takeaways

The Seventh Circuit doesn’t have a great track record with respect to favoring persons with disabilities of late. However, there are two exceptions. First, the Seventh Circuit view is that for a person unable to perform the essential functions of their current job, the employer is under a mandatory obligation to reassign them to a vacant job that they are otherwise qualified to do. Second, when it comes to regarded as claims, the Seventh Circuit says that the physical or mental impairment must be both transitory and minor for the exception to apply.
I really wish the amendments to the ADA stayed with the Rehabilitation Act term “otherwise qualified,” instead of the term it adopted, “qualified.” Instinctively, “qualified,” has more complexity in its meaning, unnecessarily so, then the concept, “otherwise qualified.”
Until this case, we simply didn’t know what minor might mean for purposes of the transitory and minor exception. At a minimum, it means looking at: 1) the symptoms and severity of the impairment; 2) the type of treatment required; 3) the risk involved; 4) the kind of surgical intervention anticipated or necessary; and 5) the nature and scope of any postoperative care. Keep in mind, before listing these particular things to look at, the Third Circuit says, “the district court should have considered such factors as….” That means, these factors are not necessarily exclusive. So, you also want to use common sense when figuring out whether the physical or mental impairment is minor.
My friend and colleague and fellow blogger, Eric Meyer, blogged on this case today as well, here. It is an excellent blog entry, and I commend it to your reading. He makes a couple of points that I completely agree with that bear noting here. First, actual disability isn’t the only thing going on with respect to how you can be a person with a disability. There are two other prongs. You could have a record of a disability regardless of whether you currently have it. You also, which is the subject of our blog entry today, could be regarded as having a disability. Second, I completely agree with Eric that Covid-19 is not minor. So, even if a person has recovered, a strong argument exist that the person has a record of a disability. Furthermore, many people who have Covid-19 recover but wind up with other conditions afterwards. Those conditions may be a disability as well. Third, I completely agree with Eric that if a person has Covid-19 you very well may have a duty to accommodate it as an actual disability.
The EEOC has said that an actual disability could very well be something less than six months. I have said for some time that one way to figure out whether an actual disability is in play for something less than six months would be to borrow from the transitory and minor exception of the regarded as prong. There isn’t anything that says you should do that, but I do think it is good preventive law. So, now we have an idea of what is minor under the regarded as exception. Applying this case definition of minor to Covid-19 leads to the inescapable conclusion that Covid-19 may be transitory but it is certainly not minor. So, on the preventive law side, a person with Covid-19 probably has an actual disability. You also have to worry about the regarded as prong as we discussed here.
Don’t forget about associational discrimination. While a person complaining of associational discrimination is not entitled to reasonable accommodations, they sort of are entitled to at least having an accommodation considered because courts are saying that a failure to engage in the interactive process with respect to association discrimination situations reflects on the employer’s intent to discriminate based upon the plaintiff’s association with a person with a disability. So, while there is no reasonable accommodation requirement with respect to accommodating someone who associates with the person with the disability, that is only as a matter of theory. In practice, failure to try and figure out how to get to a win-win my still come back to bite you.
The transitory and minor exception is an objective standard. Prior to the amendments act, it was basically a subjective standard when it came figuring out whether an employer had perceived both a physical and mental impairment and a substantial limitation on a major life activity. The amendments changed all of that. Also, this case says that the objective standard doesn’t always require expert testimony either. Sometimes it is just obvious that a physical or mental impairment is not minor.
Employers should not expect the transitory and minor exception to be something that is used successfully in the run of cases in light of the language in the case talking about how the exception was meant to only weed out claims at the lowest end of the spectrum.
Employers who change their termination reason over time never look good.
Title I causation is “on the basis of” not “because of,” as we have discussed many times previously. Yet, many courts fail to make that distinction.
An underlying issue in all of this is whether attendance is an essential function of the job, such as we discussed here. What Covid-19 has done is create a real issue of whether attendance is a personal preference or an essential function. After all, Twitter’s CEO said this week that any of his employees from now on can work from home if they so desire. Facebook wants to move to 50% remote workers over time. I expect other companies to follow suit for a whole host of reasons.
The decision is published and precedent-setting. I fully expect the decision to be cited frequently by other courts.

ADA and Face Masks

By William Goren on May 27, 2020

Posted in ADA, Final Federal Regulations, Title I, Title II, Title III

One may wonder how I go about deciding what cases to blog on from week to week. Well, I look in a variety of places: fellow legal bloggers; a Google alert set to the ADA; LinkedIn, Lexblog, and law 360. I subscribe to Law 360 and it is worth every penny. I am able to get a variety of cases and documents without having to use the convoluted pacer system. Many of the documents are free because I am a paid subscriber. Very importantly, Law 360 has an army of legal journalists looking for legal cases in their area. Law 360 enables me to subscribe to certain topical areas where I can get the latest news. Today’s case comes from an ADA search I did today on Law 360. An absolutely big issue is people wearing facemasks in public. Unfortunately, it is becoming a political thing and it shouldn’t be. Even so, there are real legal issues associated with it. The facemasks are an issue in two different ways. First, you may have a person with respiratory problems or some other disability that makes him or her unable to wear facemasks. There is a reverse side to that, which I fall into. That is, many in the small deaf and HOH community, to a lesser extent the Deaf community, rely on lipreading for comprehension. I get 50% of my comprehension from lipreading. The facemasks requirements have made it quite an adventure for me going out into the public world when I have to go inside. So, I keep pretty much to the car and outside. I don’t mind wearing a facemask myself for short periods of time. However, my ability to understand others goes way down when they have a mask on. In addition to not being able to lipread, wearing a mask also reduces the volume of the voice. So, it’s a real nightmare.

It was only a matter of time before someone filed a lawsuit saying that a place of public accommodation discriminates against a person with a disability in violation of title III of the ADA with a mandatory facemask policy. We now have such a case. The case is Pletcher v. Giant Eagle, Inc., filed in the Western District of Pennsylvania on May 26, 2020. So, what I thought I would do is list the key allegations in the complaint in one section of the blog entry. Then, in a separate section of the blog entry I would talk about my thoughts on the complaint including its various allegations. So, the categories for this blog entry are the complaint itself and my thoughts/takeaways on the complaint. Keep in mind, for purposes of this blog entry we are taking the allegations in the complaint as true. Of course, that may not be the case subject to further discovery. Also, my paragraphs listing the key allegations in the complaint will not match up with the paragraphs of the actual complaint. Finally, at times I am paraphrasing but the substance of the allegations is exactly the same.

Key Allegations of The Complaint

Plaintiff has a health condition that substantially impacts her major life activity of breathing and her respiratory system. She cannot wear a mask over her mouth and nose without significant difficulty breathing.
On April 15, 2020, Pennsylvania Gov. Tom Wolfe issued a press release announcing that Dr. Rachel Levine under his authority, signed an order directing protection for critical workers at businesses authorized to maintain in person operations during the Covid-19 disaster emergency.
The order issued by Dr. Levine effective April 19, 2020, provided that businesses covered by the order should (“should,” is the word that appears in the complaint): require all customers to wear masks while on the premises, and deny entry to individuals not wearing masks, unless the business is providing medication, medical supplies, or food, in which case the business must provide alternative methods of pickup or delivery of such goods; HOWEVER, INDIVIDUALS WHO CANNOT WEAR A MASK DUE TO A MEDICAL CONDITION (INCLUDING CHILDREN UNDER THE AGE OF TWO YEARS FOR CDC GUIDANCE) MAY ENTER THE PREMISES AND ARE NOT REQUIRED TO PROVIDE DOCUMENTATION OF SUCH MEDICAL CONDITION (the uppercase and bold font appears in the complaint itself).
Giant Eagle implemented policies and procedures requiring all customers to wear masks even if they are a person with a disability and cannot wear a mask due to their medical conditions.
CDC recommendations state that “cloth face covering should not be placed on young children under the age of two, anyone who has trouble breathing, or is unconscious, incapacitated, or otherwise unable to remove the mask without assistance.” (Bold is in the complaint). The CDC also directs individual to make sure when using a face covering that, “you do not have any difficulty breathing while wearing the cloth face covering.”
Giant Eagle’s policies and procedures make no accommodation for invitees wishing to shop in the stores who have disabilities that prohibit wearing a mask or make wearing a mask dangerous to the invitees. In particular the policy says: “moving forward until further notice in order to shop our store (or any other Giant Eagle location) you must be wearing a mask. There will be no exceptions regardless of any reason or medical condition (bold in complaint). We thank you for your compliance and understanding.”
The owner of one Giant Eagle store posted publicly that the entire company had decided not to comply with the accommodation lifted in Dr. Levine’s order because, “It’s too easy to make up an excuse not to wear mask (bold in complaint), and we refused to put our team members and customers who were masks get any more risk than they already are. Health and safety of our community is more important to us than business.” However, Giant Eagle does not require its team members to wear masks if they provide medical excuses (words in italics actually appear in the complaint but the emphasis is mine).
Security guards outside of one Giant Eagle location have told customers who were told that they must wear a mask despite a disability prohibiting the wearing of a mask, that Giant Eagle is a private company not required to comply with the ADA.
Giant Eagle employees and security guards have verbally harassed and physically threatened guests with removal and arrest for trespass. Giant Eagle’s employees and agents have called the police and pressed charges of trespass against guests with disabilities who cannot comply with its illegal mask policy.
Giant Eagle justifies its policies and procedures by claiming excluding such individual from its stores because they cannot wear a mask for medical reasons due to a disability is okay because they still have the option of staying out of the store and having a Giant Eagle team member shop for them or use curbside pickup and delivery services. In essence, Giant Eagle is treating its guests who cannot wear a mask due to a disability like “lepers,” rather than “guests.”
Giant Eagle has gone so far as to call local police departments and have guests who have refused to wear mask because of a disability arrested or threatened with arrest for trespassing on Giant Eagle property.
On April 19, 2020, plaintiff entered Giant Eagle’s Elizabeth location without wearing a mask. A Giant Eagle employee told plaintiff she had to wear mask otherwise the Giant Eagle employee could not wait on her. Plaintiff responded by telling the employee that she has a medical condition preventing her from being able to wear masks. Giant Eagle’s employee told plaintiff she had to put on a mask or she had to leave the premises. At that point, another Giant Eagle employee told the plaintiff that the law is that she had to wear a mask. Because the plaintiff could not comply with Giant Eagle’s illegal demands, she left the premises without making a purchase.
Under the terms of the ADA, discrimination includes a failure to provide services to a person with a disability to the extent that such services are provided to persons without disabilities. The ADA requires that goods, services, facilities, privileges, advantages, and accommodations be afforded to an individual with a disability in the most integrated setting appropriate to the needs of the individual.
Title III of the ADA also requires that no person shall be discriminated against on the basis of a disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any public accommodation.
Plaintiff is a qualified individual with a disability within the meaning of the ADA because plaintiff has a physical mental impairment substantially limiting one or more of plaintiff’s major life activities and systems, i.e. she has asthma and a panic disorder affecting her breathing and her respiratory and nervous systems.
Giant Eagle has stated publicly that it does not intend to change its mask policy and that its “guests,” who cannot wear masks might use some alternative other than shopping inside the stores without a mask. That means, Giant Eagle neither has any intent of complying with the legal requirements of the ADA nor of training its employees of their need to comply with the ADA.
Plaintiff did not pose a direct threat to the health or safety of others. There was no significant risk to the health or safety of others that could not be eliminated by a modification of Giant Eagle’s policies, practices and procedures. Social distancing and other safety precautions were in place at the store, plaintiff had no signs or symptoms of Covid-19, and the Pennsylvania Health Secretary’s order and CDC guideline recognized the need for a medical exception to the mask requirement. Also, Giant Eagle made no individual assessment that consider plaintiff’s actual abilities or disabilities. Instead, Giant Eagle adopted a broad discriminatory policy based on generalizations and stereotypes.
Plaintiff requests injunctive relief requiring Giant Eagle to accommodate plaintiff by allowing her to shop in the stores without wearing a mask so that she may enjoy the benefits, privileges, goods, services, facilities, advantages, and accommodations including equal access to and enjoyment of Giant Eagle’s doors in the future.

Thoughts/Takeaways

For purposes of this section, I am assuming that all allegations are true.

Plaintiff’s respiratory condition is most probably a disability under the ADA. It is very difficult, though not impossible, for something to not be a disability anymore after the amendments to the ADA.
B6 of Dr. Levine’s order, here, is not phrased in an optional way. That is, the complaint said that the order demands that businesses, “should.” That makes it seem like the order was phrased in an optional way. Many states around the country are phrasing such orders in an optional way. However, a close look at the order reveals that the order is not phrased in an optional way. Businesses in Pennsylvania are expected to do it Dr. Levine’s way. Interesting, that the complaint seemed to suggest that the order is a recommendation and not mandatory.
Since the order is mandatory and has been given the blessing of the governor, the question then becomes whether the governor and Dr. Levine have exceeded their authority in issuing the order. States have the obligation to protect the welfare of its citizenry. Hard to believe that the authority has been exceeded.
Since the order is mandatory, businesses must follow those orders unless federal law conflicts.
CDC recommendations make clear that certain individuals should not wear masks.
Blanket policies (Giant Eagle’s policies that there will be no exceptions regardless of any reason for medical condition) are always very risky under the ADA.
One problem for Giant Eagle is apparently it does not require their team members to wear masks if they provide medical excuses but yet they do not give that option to their customers.
Giant Eagle is a place of public accommodation under 42 U.S.C. §12181(7)(E). The statements of its employees are simply wrong.
The verbal harassment and physical threatening of a person with a disability creates an issue of hostile environment. While hostile environment is commonly seen in title I cases, I haven’t yet seen it in title III cases.
42 U.S.C. §12182(b)(1)(A)(ii)- participation in unequal benefit, states: “it shall be discriminatory to afford an individual or class of individuals, on the basis of adisabilityor disabilities of such individual or class, directly, or through contractual, licensing, or other arrangements with the opportunity to participate in or benefit from a good, service, facility, privilege, advantage, or accommodation that is not equal to that afforded to other individuals,” would seem to be a far better fit for the complaint than the integration mandate cited in the complaint. The integration section of 42 U.S.C. §121812(b)(1)(B) talks about the most integrated setting “appropriate to the individual.” “Appropriate to the individual,” language can get complicated in this situation.
We have talked about the obligations of police with respect to the ADA numerous times before and the need for law enforcement training. They also need ADA training across the entire range of the ADA because they may get called into situation dealing with any of the titles. I am not sure this is happening. Of course, one problem is where is the money going to come from in light of Covid-19’s impact on state budgets. Even so, law enforcement does need to know their ADA obligations.
The complaint makes the statement that plaintiff is a qualified individual with a disability. That is strange because whether an individual is a qualified individual with a disability is not a concept found in title III of the ADA. It is also strange because even assuming “qualified,” is a part of title III, which it is not, there isn’t any allegations in the complaint that the plaintiff meets the essential eligibility requirements to shop at the store (if you think about it, that is probably a reason why you do not see “qualify,” in title III because in most situations it isn’t an issue). All that said, you often still have to go through a qualified analysis in order to figure out if there is a fundamental alteration or an undue burden. However, going through a qualified analysis is not the same thing as “qualified,” actually appearing in title III.
The plaintiff showed up to shop and was turned away. So, I don’t expect standing to be an issue. Also, the complaint contains intent to return language.
Under title II’s final regulations, here, and title III’s final regulations of the ADA, direct threat is only a question of whether an individual poses a direct threat to the health or safety of others. The fact that the DOJ regulation do not talk about direct threat to self is a huge issue here. Absolutely true that the plaintiff might be a direct threat to herself. However, the title III regulation, 36 C.F.R. §36.208, here, is quite explicit that the consideration is a direct threat to others. Direct threat to self unlike the EEOC regulation, 29 C.F.R. §1630.2(r) here, is not listed as a consideration in the final DOJ title III regulations. Accordingly, this makes for a difficult argument for the defense to claim that the ADA somehow conflicts with Dr. Levine’s order.
The ADA does require an individualized analysis across the board.
Two other allegations could have been made in the complaint and were not. 42 U.S.C. §12182(b)(1)D) says that a title III entity cannot adopt administrative methods that have the effect of discriminating on the basis of disability. 42 U.S.C. §12182(b)(2)(A)(i) prohibits a title III entity from, “the imposition or application of eligibility criteria that screen out or tend to screen out an individual with a disabilityor any class of individuals with disabilities from fully and equally enjoying any goods, services, facilities, privileges, advantages, or accommodations, unless such criteria can be shown to be necessary for the provision of the goods, services, facilities, privileges, advantages, or accommodations being offered.” Both of these sections would seem applicable to the facts alleged in the complaint.
I expect to see many more of these cases in the future. I also expect to see cases demanding accommodations for those who are lip readers struggling to navigate a facemask world.
One way to prevent all of this is to make sure you engage in the interactive process and that you execute the do’s and don’ts of the interactive process we discussed previously.

Association Discrimination and the ADA (Title I)

By William Goren on May 18, 2020

Posted in General

Before getting started on the blog entry of the day, I did a webinar the other day for the Georgia Lawyers for the Arts on Internet accessibility and on effective communications. We also talked about other matters as well. It was the first time I did a webinar using the zoom platform. I found it worked well so long as I had the ability to dial in and use my Bluetooth so the sound could go directly to my hearing aids. One of the questions that came up was this: employer of less than 15 employees; in a state with no disability discrimination laws; and took the funds from the government to keep their business afloat. Does that company despite having less than 15 employees now have to worry about disability discrimination in employment? The answer I gave was yes because 29 U.S.C. §794, §504 of the Rehabilitation Act, applies to any entity receiving federal financial assistance. If same facts but state disability discrimination laws exist, then the company has to worry about §504 and possibly state disability discrimination laws as well.

I have promised a couple of times and have never followed up on it to blog on the case of Schmitz v. Alamance Burlington Board of Education a decision from February out of the Middle District of North Carolina. It does a great job of discussing associational discrimination. It also sets up a potential circuit court split with respect to the paradigm for evaluating these claims. As usual, the blog entry is divided into categories and they are: Key facts; court’s reasoning association discrimination generally; court’s reasoning adverse action/constructive discharge; court’s reasoning qualified; court’s reasoning reasonable inference of unlawful discrimination; court’s reasoning retaliation; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

Key Facts (Taken Directly from Opinion):

Theresa Schmitz (“Plaintiff”) is a resident of Wake County, North Carolina. (Compl. (Doc. 5) ¶ 3.) The Alamance-Burlington Board of Education (“Defendant”) is a corporate body solely based and operating in Alamance County, North Carolina. (Id. ¶ 4.)

Defendant hired Plaintiff in late October 2016 to teach fourth grade at an elementary school in Snow Camp, North Carolina. (Id. ¶ 6.) Plaintiff alleges that she performed satisfactorily throughout her first months, receiving positive feedback. (Id. ¶ 7.) In November 2016, her son was diagnosed with a brain tumor and required emergency surgery. (Id. ¶ 8.) Plaintiff alleges she returned to work on November 29, 2016, after her son’s surgery on November 23. (Id.) Plaintiff’s son was diagnosed with neurofibromatosis Type 1 (“NF1”), a disease also known as von Recklinghausen’s Disease. (Id. ¶ 9.) NF1 is a rare genetic disorder that causes tumors and growths in certain parts of the body; it negatively affected Plaintiff’s son’s ability to see, think, and learn. (Id.) Plaintiff’s son was unable to walk or care for himself following surgery. (Id.) Plaintiff’s son requires regular screenings and chemotherapy as a result of the disease. (Id.)

After returning to work on November 29, Plaintiff asked her Principal, Mark Gould, for permission to leave work at 2:30 p.m. each day to care for her son. (Id. ¶ 11.) Though classes ended at 2:30 p.m., teachers were expected to stay until 3:15 p.m. each day. (Id.) Principal Gould allowed Plaintiff to leave at 2:30 p.m. for one week, from November 29 until December 5. (Id.)

On or about December 5, Plaintiff took her son to the doctor to have his stitches removed; at that appointment, the doctor informed Plaintiff that her son would not be able to return to school for several weeks. (Id. ¶ 12.) Plaintiff emailed Principal Gould following that meeting, explaining the situation and asking for permission to leave at 2:30 p.m. for another week. (Id. ¶ 13.) Principal Gould responded that he could not talk about it at that moment because he was busy, but that he would discuss it with Plaintiff the next day. (Id.) Plaintiff never heard from Principal Gould, but she still left 2:30 p.m. the next day, December 6. (Id. ¶ 14.) Later that day, Principal Gould emailed Plaintiff to ask why she had not been at bus duty at 2:30 p.m. that day. (Id.) “Plaintiff replied that she had explained her situation with her son and thought it was okay to leave at 2:30 p.m. When she received no response back, she became very concerned.” (Id.) Plaintiff told Principal Gould that she would not be at work on December 7. (Id.)

On December 7, Plaintiff contacted Defendant’s human resources (“HR”) department to explain the situation with her son and to express concern that Principal Gould was “bullying her and retaliating against her for caring for her disabled son.” (Id. ¶ 15.) The HR department responded that day and told Plaintiff she was not permitted to leave at 2:30 p.m., but instead would have to take leave in half-day increments. (Id. ¶ 16.) Plaintiff alleges she asked HR why she could not work until 2:30 and have her pay prorated for the final forty-five minutes of the day, but she received no response. (Id.)

Plaintiff alleges that she was treated differently in this regard, because “other employees not associated with a disabled family member were regularly permitted to take sick leave in less-than-half-day increments on temporary bases.” (Id. ¶ 30.)^[1] Still, Plaintiff complied with HR’s instruction and took leave in half-day increments from December 5 until December 16. (Id. ¶ 16.) After December 16, 2016, Plaintiff alleges she did not request, nor did she take any other time off to care for her son. (Id.)

Plaintiff alleges that Principal Gould began a course of retaliation against her starting in mid-December 2016 and carrying into February 2017. (Id. ¶ 17.) This alleged retaliation, which Plaintiff characterizes as “nitpicking,” allegedly resulted in Plaintiff being held to a higher standard than other teachers. (Id. ¶ 18.) Plaintiff was placed on a performance improvement plan (“PIP”) on or about March 14, 2017. (Id. ¶ 20.) Plaintiff alleges this PIP entailed a lot of busy work, was based on misstated facts about her performance, and was another example of how she was held to a higher standard than other teachers. (Id. ¶¶ 20-21.)

Despite those positive developments, on May 12, 2017, Plaintiff was called into a meeting with Principal Gould and HR. (Id. ¶ 23.) Waiting for her in the meeting was a pre-drafted letter of resignation for her to sign, effective at the end of the school year. (Id.) Plaintiff was told to sign the letter, or she would be “put on a list she did not want to be on.” (Id.) Plaintiff alleges this list was “presumably a list of terminated employees or employees who were not eligible for hire” within North Carolina’s school systems. (Id.) Plaintiff was told she had to sign and “turn in” the letter. (Id.) Plaintiff does not expressly allege that she signed the letter, but she does allege that she was “forced to resign,” (id. ¶ 30), and that she was “constructively terminated,” (id. ¶ 24).

Plaintiff alleges she was retaliated against in the form of changes to her schedule and responsibilities, being placed on a PIP, being forced to resign, and other, smaller acts. (Id. ¶ 30.)

Plaintiff sued for association discrimination, retaliation, and violation of North Carolina law. The court winds up dismissing the North Carolina law claim but that does not concern us here.

Court’s Reasoning Association Discrimination Generally

A prima facie case for an associational discrimination means showing: (1) she was associated with an individual with a disability as defined by the ADA and that her employer had knowledge of that association; (2) she suffered an adverse employment action; (3) at the time of such action, she was performing her job at a level that met her employer’s legitimate expectations; and (4) the adverse employment action occurred under circumstances raising a reasonable inference of unlawful discrimination.
Pleadings are subject to Iqbal/Twombly. That said, plaintiff only has to plead facts that permit the court to reasonably infer that each element of the prima facie case is satisfied.
McDonnell Douglas burden shifting applies to associational discrimination and retaliation claims.
Association discrimination is, “because of.”
The reason for the association provision being added to the ADA was to protect qualified individuals from adverse job actions based on unfounded stereotypes and assumptions arising from the employee’s relationship with particular persons with disabilities.
With respect to employment, associational discrimination per 42 U.S.C. §12112(b)(4) means excluding or otherwise deny equal jobs or benefits to a qualified individual because of their association with a disabled person.
In a footnote, the court says that plaintiffs alleging associational discrimination claims need not fit their claim into one of Judge Posner’s categories, which we discussed in this blog entry.

III

Court’s Reasoning Adverse Action/Constructive Discharge

Adverse employment actions under the ADA use the same framework as title VII.
Constructive discharge is viable where either the employee’s resignation was obtained by the employer’s misrepresentation or deception or where the employee’s resignation was forced by the employer’s duress or coercion.
With respect to duress/coercion, it is a totality of circumstances test.
When assessing the voluntariness of a resignation, factors to look at include: 1) whether the employee was given some alternative to resignation; 2) whether the employee understood the nature of the choice he or she was given; 3) whether the employee was given a reasonable time and when to choose to resign; and 4) whether the employee was permitted to select the effective date of resignation.
If an employee can show that the employer knew that the reason for the threatened removal could not be substantiated, the threatened action by the employer is purely coercive.
While plaintiff failed to plausibly allege that she did not have an option other than resignation, she did plausibly allege facts allowing the court to reasonably infer the employer lacked a good faith basis for threatening her with termination in the first place. For example, she successfully completed her performance improvement plan and had received a positive performance review from the principal.
Plaintiff’s complaint permits a reasonable inference that the suggestion of a list that she would be put on if she did not resign was a threat of some undesirable consequences.
While plaintiff was given sufficient time to consider her resignation, she did allege facts showing that her resignation date was predetermined, which is a strong indicator of the lack of voluntariness.
The court was persuaded by the contrast between plaintiff’s allegations about her successful performance at the end of the school year and the allegedly abrupt way she was forced to resign. So, the totality of circumstances test combined with the facts alleged are sufficient to get by a motion to dismiss.

Court’s Reasoning Qualified

To be protected under the ADA, a person with a disability must also be qualified.
Plaintiff brought forward enough facts showing she was meeting defendant’s expectations. In particular: 1) plaintiff was a teacher and did miss class time to care for her son, but those instances allegedly ceased in December 2016, and it appeared the absences were approved leave; 2) between the time of absenteeism and when she was shown her pre-drafted resignation, plaintiff alleges she was performing satisfactorily. Those allegations are supported by the performance report written by the principal at some point during April 2017, which did not indicate any deficiencies nor did it indicate that she was not qualified to do the job.

Court’s Reasoning Reasonable Inference of Unlawful Discrimination

Plaintiff has to show that it is more likely than not that the employer took the adverse action because of her association with an individual with a disability.
“Because of,” language associated with association discrimination and retaliation in the statute means causation is, “but for.”
Where a plaintiff is performing her job satisfactorily and her only issues with her employer revolve around her association with the person with a disability, then that raises an inference of discriminatory motivation.
Plaintiff alleged discriminatory intent sufficient to get by a motion to dismiss in numerous ways: 1) she was performing her job well in October and November of 2016; 2) defendant’s only alleged displeasure with the plaintiff involved her time off to care for her son with a disability in late 2016 early 2017; 3) after December 2016, defendant allegedly began to treat plaintiff differently; and 4) after those incidents involving her son with a disability, plaintiff was again performing her job well. Accordingly, plaintiff alleged sufficient facts to show that her association with her son was more likely than not the motivating factor for defendant’s actions.
Even though there was some period of time between the defendant’s notice of plaintiff’s association with her son with a disability and her termination, a period of six months, the totality of the circumstances is such that there still exist the necessary minimal inference of discriminatory intent (the court noted that the Seventh Circuit has found five months to not be too long of a gap).
A period of time that is otherwise long does not negate causation if the adverse action comes at the first opportunity to retaliate.
If a period of time between notice about an association with the person with the disability and the discriminatory act is filled with other acts illustrating discriminatory animus, then causation can still be established. Particularly noteworthy, is that the defendant knew plaintiff was associating with a family member with a persistent condition requiring more care and that the defendant was also aware of the chronic nature of plaintiff’s son’s disease. Plaintiff also alleged evidence of discriminatory intent between the time defendant became aware of plaintiff’s association and her forced resignation. Those actions included: 1) holding plaintiff to a higher standard than other teachers; 2) reprimanding her for allegedly routine matters; and 3) placing her on a performance improvement plan starting in mid-March.
While the ADA does not require an employer to provide a reasonable accommodation to the nondisabled associate of a person with disability, an employer’s reaction to such a request for accommodation can support an inference that a subsequent adverse employment action was motivated by associational discrimination.

Court’s Reasoning Retaliation

Proving up a retaliation claim means showing: 1) plaintiff engaged in protected conduct; 2) plaintiff suffered an adverse action; and 3) a causal link exists between the protected conduct and the adverse action.
Plaintiff need not show that the conduct being opposed was actually an ADA violation. Instead, plaintiff must show a good faith belief the conduct violated the ADA. That good faith belief has to be objectively reasonable.
A reasonable and good faith belief is only required for opposition activity. If a person is involved in the EEOC process and retaliation occurs, a reasonable and good faith belief showing is not necessary.
The law is crystal clear that a person alleging associational discrimination is not entitled to reasonable accommodations. Accordingly, it is not reasonable to assume that a plaintiff had a good faith belief that such a request was protected under the ADA. Accordingly, dismissal of the retaliation claim is warranted.

VII

Thoughts/Takeaways

Iqbal/Twombly means giving the defendant enough facts so that it is clear as to what is being alleged and what the claims are. Depending upon the jurisdiction, judges may allow a degree of notice pleadings, but it is very specific to the individual judge. So, on the plaintiff side, more facts are better than less.
It’s interesting that even though causation for retaliation and associational discrimination claims is “but for,” McDonnell Douglas is still in play.
The court’s footnote talking about how associational discrimination claim do not have to fit into one of the boxes we discussed in this blog entry sets up a potential circuit court split.
Duress and coercion when it comes to figuring out constructive discharge is a totality of the circumstances test.
Just because there is a length of time between notice about an individual’s association with a person with a disability and the ultimate discriminatory act, that is not the end of the matter where other acts illustrating discriminatory intent exists.
Objective reasonableness when it comes to retaliation does mean not being ignorant of the law. In other words, it makes perfect sense to me that a person would think it is perfectly reasonable and within the ADA to request accommodations because they are associating with a person with disability. However, the law is quite clear that is not the situation. Accordingly, regardless of a plaintiff believing that, that belief does not hold up for retaliation claim. All this said, many courts are holding a failure to accommodate a person’s request for a reasonable accommodation to deal with their association with the person with a disability can be evidence of discriminatory intent. So, in this situation, the interactive process or lack thereof is critical.
“Disabled,” v. “person with a disability.” The medical community, many courts, and some disability rights activists use the term, “disabled.” However, a significant group of people in the disability rights arena, and it does not depend upon age, prefer people first language, i.e. “person with a disability.” Since it is an individual preference, when speaking generally always start with people first language and then switch over to identity first, “disabled,” if the person with a disability prefers it that way.

Illinois Assistance Animal Integrity Act

By William Goren on May 11, 2020

Posted in ADA, Fair Housing Act, Federal Cases, Guidances, State Statutes

One thing I have noticed with the pandemic is that legal bloggers have shifted what issues they are talking about to anything related to Covid-19. That said, there are other issues besides Covid-19 going on. For example, service animals and emotional support animals in housing. I am aware of reports from those in university towns where off campus complexes catering to students are faced with a significant number of tenants in the complex claiming their animal is an emotional support animal. What is such a landlord to do? As already mentioned here, the latest circular from the Department of Housing and Urban Development is a big mess. States are coming up with their own ideas in this area as well. For example, Illinois enacted the Assistance Animal Integrity Act, effective January 1 of 2020. The timing of the bill’s enactment is such that it would have been signed by the Illinois governor before Housing and Urban Development came out with its latest circular. I am licensed in Georgia, Illinois, and Texas. Accordingly, I do have the ability to parse Illinois law. I thought it would be useful to do that here because it shows one approach a State is taking to deal with emotional support animals in housing. I will also add some more thoughts of my own, particularly with respect to how such state laws interact with the latest circular. As usual, the blog entry is divided into categories and they are: the Illinois Assistance Animal Integrity Act explained; and thoughts/takeaways on the Illinois Assistance Animal Integrity Act. The reader is free to look at either of the categories or both.

The Illinois Assistance Animal Integrity Act Explained:

Assistance animal is defined as an emotional support or service animal qualifying as a reasonable accommodation under the federal Fair Housing Act or the Illinois Human Rights Act.
Disability is defined as a person with any physical or mental impairment or record of such impairment satisfying the definition of handicap under the Fair Housing Act or the definition of disability under the Illinois Human Rights Act.
Housing provider means any owner, housing provider, property management company, property manager, government entity, condominium board, condominium association,, cooperative, or related entity, and any of its agents or employees, engaged in the selling, leasing, management, control, or governance of residential housing.
Reasonable accommodation has the meaning provided under the federal Fair Housing Act or the Illinois Human Rights Act
Therapeutic relationship refers to the provision of medical care, program care or personal care services made in good faith for and with actual knowledge of an individual’s disability and that individual’s disability related need for an assistance animal by: 1) a physician or other medical professional; 2) a mental health service provider; or 3) a nonmedical service agency or reliable third-party in a position to know about the individual’s disability.
“Therapeutic relationship does not include an entity that issues a certificate, license, or similar document that purport to confirm, without conducting a meaningful assessment of a person’s disability or a person’s disability related need for an assistance animal, that a person: (a) has a disability; or (b) needs an assistance animal.”
A housing provider may require a person to produce reliable documentation of the disability and disability related need for the animal only if the disability or disability related need is not readily apparent or known to the housing provider.
Housing providers may ask a person to make the request on a standardized form, but it cannot deny the request if the person did not use the form to submit documentation otherwise meeting the requirements of the Act.
If a housing provider received a request for more than one assistance animal, it may request documentation establishing the disability related need for each animal unless the need for an animal is apparent.
Any documentation that a person has a disability and requires the use of an assistance animal as a reasonable accommodation in housing under the federal Fair Housing Act or the Illinois Human Rights Act shall: 1) be in writing; 2) be made by a person with whom the person requesting accommodation has a therapeutic relationship; and 3) describe the individual’s disability related need for the assistance animal.
A housing provider can deny a documented request for an accommodation or rescind a granted request if: 1) the accommodation imposes either: i) an undue financial and administrative burden; or ii) a fundamental alteration to the nature of the operations of the housing provider; or 2) after conducting an individualized assessment, there is reliable objective evidence that the specific assistance animal: i) poses a direct threat to the health or safety of others that cannot be reduced or eliminated by another reasonable accommodation; ii) causes substantial physical damage to the property of others that cannot be reduced or eliminated by another reasonable accommodation; or iii) has engaged in a pattern of uncontrolled behavior that its handler has not taken effective action to correct.
If the initial documentation provided by the person requesting accommodations does not satisfy ¶ 10 above, the housing provider may require additional supporting documentation. If the initial documentation is not sufficient to show the existence of the therapeutic relationship as defined in the Act, the housing provider may request additional information describing the professional relationship between the person and the individual with the disability.
A housing provider cannot deny an assistance animal solely due to the disability related needs of another resident. Instead, it has to attempt to balance the disability related needs of all residents.
If a housing provider bills for damages caused by pets, they can do the same for animals protected by the Assistance Animal Integrity Act. That said, pet related deposits, pet fees, or related pet assessments are out. Also out, is demanding that a resident within the assistance animal procure special liability insurance coverage for the assistance animal.
The Act cannot be construed as requiring documentation of a specific diagnosis regarding the disability or disability-related need.
The housing provider does have the ability to verify the authenticity of any documentation submitted.
If an assistance animal causes injuries to an individual, the landlord is not liable for that.

Thoughts/Takeaways on the Illinois Assistance Animal Integrity Act

The Illinois Assistance Animal Integrity Act defines an assistance animal as an emotional support or service animal qualifying as a reasonable accommodation under the federal Fair Housing Act or the Illinois Human Rights Act. But what does that mean? As we have discussed previously, the only place assistance animals are defined with respect to fair housing is in circulars. With respect to the Illinois Human Rights Act, you do see a mention there in the definition of disability of guide dogs, hearing dogs or support dogs. I didn’t see any definition in the Illinois Administrative Code, after doing a quick search, with respect to what those terms mean, but that doesn’t mean it doesn’t exist.
The Illinois Assistance Animal Integrity Act says disability under the Act means the same thing as handicap under the Fair Housing Act. Here is the thing. My colleague Richard Hunt has written several times in his blog, which is in my blogroll and can be found here, that handicap under the Fair Housing Act does not necessarily mean at all what it means under the ADA because the Fair Housing Act was not amended when the ADA was. So, despite the definition of handicap under the Fair Housing Act strongly resembling the definition of disability under the ADA, a reasonable argument exist that handicap is looked at in the way disability was looked at prior to the amendments to the ADA. That distinction can be very important because that means Toyota Motor and Sutton are still in play. In other words, a substantial limitation on a major life activity under the Fair Housing Act could very well be a limitation that severely restricts or prevents a person from performing a major life activity of central importance to most people’s daily lives. Also, per Sutton, you can factor into the equation mitigating measures with respect to determining whether a person has a disability.
The Illinois Assistance Animal Integrity Act also says that disability means the same thing as the definition of disability under the Illinois Human Rights Act. However, the Illinois Human Rights Act has a very interesting definition of disability that doesn’t closely resemble the definition of a disability under the ADA. In particular, 775 ILCS 5/1-102(I), (I)(2) says that disability means a determinable physical or mental characteristic of a person, including, but not limited to, a determinable physical characteristic necessitating the person’s use of a guide, hearing or support dog, the history of the characteristic, or the perception of such characteristic by the person complained against, which may result from disease, injury, congenital condition of birth or functional disorder in which characteristic is unrelated to the person’s ability to acquire, rent, or maintain a housing accommodation. I could see lots of litigation over whether the characteristic is unrelated to the person’s ability to acquire, rent, or maintain a housing accommodation. The Illinois definition of disability in its Human Rights Act is very unusual.
The reason I put the section defining what a therapeutic relationship does not include in quotation marks is because the punctuation is very funny. The phrase, “without conducting a meaningful assessment of a person’s disability or a person’s disability related need for an assistance animal,” is entirely encapsulated in commas. Accordingly, is this phrase restrictive or parenthetical? If it is restrictive, it means that entities issuing certificates, licenses, or other similar documents can continue to do so and have it counted as sufficient documentation if they conduct a meaningful assessment of a person’s disability or a person’s disability related need for an assistance animal. However, if it is parenthetical, then an argument exists that documentation from entities issuing certificates, licenses, or similar documents purporting to confirm that a person has a disability or is in need of an assistance animal is no longer sufficient documentation. Judging from context, it seems that the phrase would have to be restrictive. Nevertheless, an argument to the contrary does exist.
The Act clearly sets forth when documentation can be requested (where the need is not readily apparent), what is necessary for sufficient documentation, and when follow-up documentation can be requested.
The Act allows for a variety of ways the documentation can be submitted.
This Act is quite a bit different from the circular, which we discussed here. That raises a real question of what is a landlord to do when they are faced with the issue of the Illinois Assistance and Animal Integrity Act allowing for a different approach and having different requirements than the Fair Housing Act circular. In that situation, I believe the Fair Housing Act circular loses out to the applicable state law. Now, you may say wait a minute doesn’t federal law trumps state law? It does. However, the Fair Housing Act circular is not federal law. As we have said before, it is not even in the interpretation of an agency’s own regulations. Accordingly, under Kisor, I don’t see how a federal court would give deference to the Fair Housing Act circular. Accordingly, state law would prevail over the circular. Now, where the state law discriminates against people with disabilities with respect to any conflict with the ADA or with respect to the equal protection clause of the 14^th amendment, that is another question. Remember, excepting the common areas, the ADA does not apply to dwellings. Rather, dwellings are covered by Fair Housing Act.
The Illinois approach seems a sensible one, though it is imperfect. The Illinois approach has three big issues: 1) “disability,” is not defined in the same way as it is under the ADA, and the way disability is defined can be very confusing to figure out; 2) it is very unclear whether entity’s issuing certificates, licenses, or other similar document can ever be counted as giving sufficient documentation; and 3) does a landlord have to show both undue financial and administrative burden if using that defense or is it okay to just show one or the other (the Act uses “and,” and not or).
Don’t forget about utilizing knowledgeable legal counsel.
For those representing housing providers in Illinois, be prepared to defend the housing provider on the grounds that they are doing exactly what Illinois law allows and that the HUD circular is not the governing law per what we discussed in this blog entry.
Landlord should be prepared for litigation and pushback from Housing and Urban Development should they decide assistance animals should only be allowed after an application of Toyota Motor and Sutton even though landlord may be perfectly within the law to take that approach.

Title III Standing Plus Insurance Coverage for Failure to Accommodate Claims

By William Goren on May 7, 2020

Posted in ADA, Title II, Title III

Today’s blog entry is a twofer. In the first part of the blog entry, we are going to update a case that we previously blogged on here. In the second part of the blog entry, we are going to explore the question of whether general commercial liability insurance policies cover failure to accommodate claims outside of the employment context. As usual, the blog entry is divided into categories and they are: Access Living v. Uber Technologies update; Access Living thoughts/takeaways; Brooklyn Center for Psychotherapy introduction; Second Circuit’s reasoning/insurance coverage; Second Circuit’s reasoning/certification; and thoughts/takeaways on the Second Circuit decision.

Access Living v. Uber Technologies, Inc. Update

We previously blogged on the District Court decision here. It gets appealed to the Seventh Circuit and the Seventh Circuit winds up affirming the District Court. Nevertheless, there are some things in the Seventh Circuit opinion that bear noting and they follow below:

The lawsuit was brought by three individuals and Access Living. Two of those individuals settled. That left one individual and Access Living still in the case on appeal.
The language of title III of the ADA requires plaintiffs to directly experience the challenged discrimination. In particular, 42 U.S.C. §12188(a)(1) limits claims to any person subjected to discrimination on the basis of disability. The dictionary defines “subject,” as, “bringing under the operation of an agent, agency, or process; to submit to certain treatment; to cause to undergo or experience something physically.” Therefore, title III of the ADA eliminates claims of individuals alleging only indirect injury experienced derivatively or vicariously through another.
With respect to Access Living, no allegations were made that Access Living had its own corporate account and found itself unable to order rides for staff, volunteers, or guests. Instead, all of its allegations are indirect in the form of increased reimbursement costs to other individuals not able to use Uber.
Title II of the ADA at 42 U.S.C. §12133 authorizes claims by, “any person alleging discrimination on the basis of disability.” The difference in formulation between title II and title III has to matter. That is, where Congress includes particular language in one section of a statute but omits it in another, it is generally presumed that Congress acted intentionally and purposely in doing it that way.
Title II plaintiffs only have to trace the alleged injury to any proscribed discrimination within that portion of the ADA.
The remaining individual plaintiff claim fails because she did not allege any direct injuries. It would have been a different story if the plaintiff had actually downloaded the app and tried to use it. However, she never did that, presumably to avoid an arbitration agreement kicking in. Failure to download the app meant that she could not show that she directly experienced the discrimination. Her association claim also fails because her husband, who had to use specialized vehicles all the time, never downloaded the app either. So, no direct injury there either.

Thoughts/Takeaways

Association discrimination claims are still viable but there has to be a direct injury, which wasn’t present in this case because the husband never downloaded the app and tried to use Uber.
With respect to Access Living, the whole case would change if Access Living got a corporate account from the Uber and employees tried to utilize Uber through the corporate account.
The court’s language about the difference between how title II and title III phrase who can bring claims is very significant for the issue of what is causation under title II. Recall, title II’s causation is, “by reason of disability.” Whereas, §504 of the Rehabilitation Act is, “solely by reason of disability.” An argument exists that the difference in formulation between the two laws has to matter. After all, the ADA came into effect after §504 of the Rehabilitation Act.
Also, very significant is the court’s statement that a title II plaintiff only has to trace the alleged injury to any proscribed discrimination within that portion of the ADA, which presumably includes the final regulations.
The court is most probably right that the reason why the app was never downloaded was because the plaintiff did not want to subject themselves to an arbitration agreement. Should plaintiffs always be afraid of entering into arbitration? Certainly, plaintiffs do not like to do that. On the other hand, I have read many a blog entry from lawyers representing management saying that winning arbitration matters is no sure thing, and it can be just as expensive as traditional litigation.

III

Brooklyn Center for Psychotherapy, Inc. v. Philadelphia Indemnity Insurance Company Introduction

Our second case is Brooklyn Center for Psychotherapy, Inc. v. Philadelphia Indemnity Insurance Company, which can be found here. I found out about the case from one of the blogs in my blog roll, the Wait a Second blog. This case asks a fascinating question of whether general commercial liability insurance policies cover failure to accommodate claims. After reading this case, I did some legal research. There are very few cases around the country talking about this. I found a handful in California. As we will discuss in a bit, the answer as to why there are so few cases has an explanation. Nevertheless, there are cases. In the end, the Second Circuit winds up certifying to the highest court of the state of New York, which is actually called the Court of Appeals, to see how they would answer the question. Even so, it pays to look at what the Second Circuit said about the issue before certifying it to the highest court of the state of New York.

Second Circuit’s Reasoning/Insurance Coverage

Under the policy, which is fairly typical, the policy provided coverage for those sums Brooklyn Center becomes legally obligated to pay as damages because of bodily injury or property damage caused by an occurrence. That policy also mandates the insurance company has a duty to defend the Brooklyn Center against any suit seeking those damages. Finally, the policy defined an occurrence to mean an accident, including continuous or repeated exposure to substantially the same general harmful conditions. This “accident,” language has commonly appeared in comprehensive general liability policies since 1966.
The duty to defend is broader than the duty to indemnify. An insurer has to defend whenever the allegations of the complaint suggests a reasonable possibility of coverage even though it is entirely possible that the insurer may not be required to pay once the litigation had run its course.
Damages flowing directly immediately from the intended acts are not covered by such policies. However, damages accidentally arising out of a chain of unintended though expected or foreseeable events occurring after an intentional act are covered by such policy.
Under New York law, damages can be considered accidental where the total situation could be found to constitute an accident.
Under New York law, discrimination based upon disparate treatment is an intentional wrong, but that is not the case with respect to disparate impact discrimination suits and suits involving vicarious liability of employers.
So long as Brooklyn Center believe that hiring interpreters to accommodate the customer’s disability was unreasonable or would have imposed an undue hardship on its business, any resulting harm from its refusal to accommodate that individual would be accidental.
On the other hand, failure to provide the accommodation is an intentional act, and New York law has said that damages flowing directly and immediately from intended acts are not covered by such policies.

Second Circuit’s Reasoning Certification

Certification to the highest court of New York is proper when: 1) the highest court of New York has not squarely addressed an issue and other decisions by New York State courts are insufficient to predict how the highest court will resolve it; 2) the plain language of the insurance contract does not indicate an answer; 3) a decision on the merits requires value judgments and important public policy choices that the highest court is better situated than the federal court to make; and 4) the question certified will control the outcome of the case.
All four of the factors a court considers when making a certification referral apply: 1) the highest court of New York has not made any decision whether insurers must defend the insured in actions alleging failure to accommodate discrimination under general commercial liability insurance policies; 2) sufficient litigation does not exist for the federal court to figure out what the New York highest court would do; 3) based upon existing New York common law, the language of the policy is ambiguous with respect to whether a duty to defend exists for failure to accommodate claims; 4) a decision on the merits would require the federal court to determine whether New York public policy bars the defense of a failure to accommodate claim. Such a decision clearly implicates important public policy choices that the highest court of New York is better situated than a federal court to make; and 5) the answer to the question is wholly determinative of the decision before the Second Circuit.

Thoughts/Takeaways regarding Brooklyn Center

You see very few of these cases. There is the Second Circuit case. As I mentioned above, when I did the legal research I found a handful of cases exploring this from California. At least one of those cases, I didn’t read them all, sided with the insured with respect to the duty to defend failure to accommodate claims under commercial general liability insurance policies. That fact is significant in and of itself as California has the tort of the covenant of good faith and fair dealing and does not give insurance companies a lot of slack when it comes to the duty to defend (in law school, I actually took insurance law from Harvey Levine, now deceased, who was one of the preeminent California attorneys with respect to the tort of the covenant of good faith and fair dealing in California. So, we were constantly talking about the duty of the insurance company to defend and what happens when they didn’t offer the limits of an insurance policy and settlement).
If you think about it, it makes sense why you don’t see a lot of these cases. First, when it comes to title I of the ADA, employment liability insurance would cover that. When it come to title II of the ADA, nonfederal governmental entities are invariably self-insured. When it comes to title III of the ADA, damages aren’t even possible. The only remedies you can get for title III claims are injunctive relief and attorney fees. So, attorney fees can get expensive, but there aren’t any damages to worry about unless the Department of Justice gets involved. Accordingly, many title III cases will either result in the plaintiff backing off, a settlement, including attorney fees, being reached; or the title III entity granting the requested accommodation (any of these outcomes are cheaper than litigating). It will be interesting to see more of these cases arise in the future.
An act may be intentional but not intentional in the legal sense. That is, negligence is intentional but that isn’t the same thing as conscious disregard, deliberate indifference, or discriminatory animus, or even an intentional tort. Many failure to accommodate claims are more like negligence claim than they are how lawyers think of intentional acts. Does such a distinction sway insurance coverage? Possibly… It would be interesting to see how a court would deal with that argument.

Braille Gift Cards and Title III

By William Goren on April 28, 2020

Posted in ADA, Final Federal Regulations, Guidances, Title III

Braille, Barrier-Free, Black, Symbol

It is hard to write on anything that doesn’t have something to do with Covid-19. However, ADA jurisprudence continues and a lot of it happens outside of Covid-19. That said, expect a tremendous amount of issues stemming from Covid-19. We will certainly be following those issues closely. Today, we will be talking about a case, Dominguez v. Banana Republic, LLC, out of the Southern District of New York where Judge Woods dismisses plaintiff’s claims that not offering braille gift cards violates title III of the ADA. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning general/standing; court’s reasoning gift cards are not places of public accommodation; court’s reasoning no claim exists for Banana Republic failing to provide auxiliary aids and services; and thoughts/takeaways. As usual, the reader is free to focus on any or all of the categories.

Facts

In Dominguez v. Banana Republic, found here, Dominguez called Banana Republic’s customer service office to ask whether the store sold braille gift cards. An employee told him that the store did not. During the call, the employee did not offer plaintiff any alternative auxiliary aids or services. Later, plaintiff unsuccessfully attempted to locate accessible braille gift card for Banana Republic on his own. Plaintiff then sued Banana Republic under the ADA and the New York State Human Rights law. Plaintiff’s firm and another firm have brought several identical lawsuits like this, which the court was none too happy about.

Court’s Reasoning General/Standing

Proving up a claim of a violation of title III of the ADA means establishing that: 1) plaintiff is a person with a disability as defined by the ADA; 2) defendants own, lease, or operate a place of public accommodation; and 3) the defendant discriminated against the plaintiff within the meaning of the ADA.
Showing standing under title III of the ADA involves showing: 1) a past injury; 2) it is reasonable to infer that discriminatory treatment would continue; and 3) it is reasonable to infer, based upon the past frequency of plaintiff’s business and the proximity of defendant services to plaintiff’s home, that plaintiff intended to return to the subject location.
Plaintiff has alleged both a past injury and that discriminatory treatment was likely to continue because he was told that not only Banana Republic’s does not have any braille gift cards, but they had no plans to offer them in the future.
Plaintiff did not allege enough facts to plausibly plead that he intended to return to the place where he encountered the alleged discrimination for several reasons: 1) he did not profess any interest in procuring contemporary, affordable workwear; 2) he didn’t assert that he owned Banana Republic pieces already and wished to continue compiling a collection with the help of Banana Republic gift card; and 3) generic conclusory statements are not sufficient.
Cut and paste pleadings have their advantages in terms of the ability to turn them out quickly and often. However, their disadvantage is that they are too conclusory and fail to allege sufficient specific facts to show a real or immediate threat of injury in a specific situation.

III

Court’s Reasoning Gift Cards Are Not Places of Public Accommodations

Title III of the ADA regulates access to places of public accommodation and not to the type of merchandise a place of public accommodation sells.
Title III does not require provision of different goods or services. Rather, it just requires nondiscriminatory enjoyment of those that are provided. For example, a bookstore cannot prohibit a visually impaired person from entering the store, but the books themselves do not have to be available in both braille and in standard print.
Gift cards are a good under the dictionary term of the meaning and therefore, do not need to be made accessible under title III.
A retailer sells gift card to consumers in the same way as they sell any other product in its stores.
DOJ implementing regulations, 28 C.F.R. §36.307(a), says a title III entity does not have to alter its inventory to include accessible or special goods designed for person with disabilities.
The purpose of the ADA’s title III requirements to ensure accessibility to the goods offered by a public accommodation and not to change the nature or mix of goods that the public accommodation typically provides.
Gift cards are neither places nor public accommodations.
Gift cards are not public accommodation because gift cards fit into none of the categories of 42 U.S.C. §12181(7).
Gift cards are not places either. That is, Congress likely used the words place of public accommodation because it could find no other less cumbersome way to describe businesses offering particular goods or services covered in 42 U.S.C. §12181. While it is true that the Second Circuit allows for places of public accommodation to extend beyond physical spaces, it simply is impossible to come up with the conclusion that gift cards are a place. After all, gift cards do not sell or rent goods. Put differently, you can make a purchase with a gift card, but not on or in a gift card.
Courts have the responsibility of interpreting the actual text of laws that Congress enacts, and not with rewriting or expanding the scope of laws in the absence of the statutory text no matter how much one thinks it may advance remedial goals or represent congressional intent.

Court’s Reasoning: No Claim Exists for Banana Republic Failing to Provide Auxiliary Aids and Services

42 U.S.C. §12182(b)(2)(A)(iii) requires the providing of auxiliary aids and services by a title III covered entity unless doing so would result in the fundamental alteration of the goods, services, facility, privileges, advantages, or accommodations being offered or would result in an undue burden.
Auxiliary aids and services include, per 42 U.S.C. §12103(1)(B)-(D), qualified readers, tape text, modification of equipment or devices, or other effective methods of making visually delivered materials available to individuals with visual impairments.
With respect to title III, DOJ final implementing regulations, 28 C.F.R. §36.303(c)(1)(ii) make clear that it is the title III entity that gets to decide what auxiliary aid to offer. For example, a restaurant would not be required to provide menus in braille for patrons who are blind if the waiters in the restaurant are made available to read the menu. Similarly, a clothing boutique would not be required to have braille price tag if sales personnel provide price information orally upon request, and a bookstore would not be required to make available a sign language interpreter because effective communication can be conducted by notepad.
Plaintiff was not denied access to an auxiliary aid or service, much less one that effectively communicated information about Banana Republic’s gift cards.
In a footnote, the court notes that it is absurd to read the ADA as requiring a place of public accommodation to offer every single customer the help of all available auxiliary aids and services before the customer even after one.
Braille gift cards may or may not even be technologically possible because a braille gift card can only fit 55 to 70 braille characters. Braille is very big.
ADA and constitutional law integration arguments don’t work because gift cards are not cash and gift cards do not facially maximize a person’s employment, economic self-sufficiency, independence, or inclusion and integration into society.

Thoughts/takeaways

The decision seems well reasoned, to me anyway.
Be careful about taking the example of using communication by notes with people who are Deaf, deaf, or hard of hearing. Especially with the Deaf (culturally deaf individuals), communication by notes back and forth especially where complex information is involved, is not likely to be effective as we saw in the case we discussed here. Also, depending upon context, it isn’t even something you would want to try.
Do we have a different case if instead of just asking for braille gift cards, the blind individual asked for some way to use gift cards in a way a person who is not blind could use them? For example, would there be some way for the blind individual to know that the gift card is from Banana Republic? Would there be some way for the blind individual to know how much is on their gift card? I suppose all of that is possible litigation down the road.
If a blind individual does call saying I would like a braille gift card. A better response might be we don’t offer that, but how can I be of help so that you can participate in that activity? Most people with disabilities are not looking to foment litigation. Respecting the individual with the disability goes a long way.
When it comes to the ADA, if on the plaintiff side, stay away from notice pleadings. Instead, be sure to allege enough facts to put the defendant on notice as to the specifics of the claim. Think of it as a hybrid of staying somewhere in the middle between notice pleading and fact-based pleadings.
While magic words aren’t required to request an accommodation, some kind of request for accommodation does have to be made.

EEOC and Covid-19 Part III

By William Goren on April 24, 2020

Posted in ADA, Final Federal Regulations, Guidances, Title I

As everyone knows, I rarely post to blog entries in a week. However, there are exceptions. The EEOC has updated their guidance on the pandemic twice since we last wrote, including yesterday. So, I thought it would be a good time to go over the paragraphs of the EEOC guidance that we have yet to cover. The way this blog entry will proceed is that I am listing the paragraphs verbatim we have yet to discuss. Underneath each of the EEOC paragraphs, I have my thoughts. At the very end, I have additional thoughts as well.

A.6. May an employer administer a COVID-19 test (a test to detect the presence of the COVID-19 virus) before permitting employees to enter the workplace? 4/23/20

The ADA requires that any mandatory medical test of employees be “job related and consistent with business necessity.” Applying this standard to the current circumstances of the COVID-19 pandemic, employers may take steps to determine if employees entering the workplace have COVID-19 because an individual with the virus will pose a direct threat to the health of others. Therefore an employer may choose to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus.

Consistent with the ADA standard, employers should ensure that the tests are accurate and reliable. For example, employers may review guidance from the U.S. Food and Drug Administration about what may or may not be considered safe and accurate testing, as well as guidance from CDC or other public health authorities, and check for updates. Employers may wish to consider the incidence of false-positives or false-negatives associated with a particular test. Finally, note that accurate testing only reveals if the virus is currently present; a negative test does not mean the employee will not acquire the virus later.

Based on guidance from medical and public health authorities, employers should still require – to the greatest extent possible – that employees observe infection control practices (such as social distancing, regular handwashing, and other measures) in the workplace to prevent transmission of COVID-19.

My thoughts:

In this particular section, EEOC does not say what job-related and consistent with business necessity actually means. Those are two concepts we have discussed quite often in our blog, including here.
While an employer may choose to administer Covid-19 testing to employees before they enter the workplace to determine if they have the virus, employers do need to ensure that the tests are accurate and reliable. That may be a dicier proposition than you might think.
The EEOC also cautions that employers may wish to consider the incidence of false positives and false negatives associated with the particular test. The clear implication there is getting into a regarded as situation or even creating a record of disability where none actually exists.
The EEOC also notes that accurate testing only reveals if the virus is currently present and not whether the employee will get it later.
Employers must have employees observe infection control practices.

D.6. During the pandemic, may an employer still engage in the interactive process and request information from an employee about why an accommodation is needed? (4/17/20)

Yes, if it is not obvious or already known, an employer may ask questions or request medical documentation to determine whether the employee’s disability necessitates an accommodation, either the one he requested or any other. Possible questions for the employee may include: (1) how the disability creates a limitation, (2) how the requested accommodation will effectively address the limitation, (3) whether another form of accommodation could effectively address the issue, and (4) how a proposed accommodation will enable the employee to continue performing the “essential functions” of his position (that is, the fundamental job duties).

My thoughts:

Essential job functions are the fundamental job duties.
What the EEOC is talking about in this section should already be happening long before Covid-19.
If the disability is obvious or already known, this guidance suggests that you may be much more limited as an employer in what you can ask or seek by way of medical documentation in those cases. We have seen this type of strategy with respect to service animals and the DOJ final implementing regulation where if the disability is obvious or known you do not get to ask the two inquiries.

D.7. If there is some urgency to providing an accommodation, or the employer has limited time available to discuss the request during the pandemic, may an employer provide a temporary accommodation? (4/17/20)

Yes. Given the pandemic, some employers may choose to forgo or shorten the exchange of information between an employer and employee known as the “interactive process” (discussed in D.5 and D.6., above) and grant the request. In addition, when government restrictions change, or are partially or fully lifted, the need for accommodations may also change. This may result in more requests for short-term accommodations. Employers may wish to adapt the interactive process – and devise end dates for the accommodation – to suit changing circumstances based on public health directives.

Whatever the reason for shortening or adapting the interactive process, an employer may also choose to place an end date on the accommodation (for example, either a specific date such as May 30, or when the employee returns to the workplace part- or full-time due to changes in government restrictions limiting the number of people who may congregate). Employers may also opt to provide a requested accommodation on an interim or trial basis, with an end date, while awaiting receipt of medical documentation. Choosing one of these alternatives may be particularly helpful where the requested accommodation would provide protection that an employee may need because of a pre-existing disability that puts her at greater risk during this pandemic. This could also apply to employees who have disabilities exacerbated by the pandemic.

Employees may request an extension that an employer must consider, particularly if current government restrictions are extended or new ones adopted.

My thoughts:

With respect to temporary accommodations, this is something I see quite a bit at colleges and universities where a temporary accommodation will be given until the process can be worked out.
The interactive process should always be fluid and not just a one time thing.
Once an accommodation is given, be absolutely sure an interactive process occurs before taking the accommodation away or giving a new accommodation.
Employers can always opt to provide a requested accommodation on an interim or trial basis with an end date while awaiting receipt of medical documentation. Be careful not to request excessive medical documentation. Also, be sure to engage in the interactive process throughout the trial period and especially when the trial period ends.
I look for lots and lots of issues with employers with respect to employees with pre-existing disabilities that put them at greater risk during the Covid-19 pandemic. Also, same goes for employees that had Covid-19 and have recovered.
Know how to go about the interactive process as we discussed in this blog entry.
If you are doing reasonable accommodations on a trial basis, be sure to stay on top of that. Also, do not get trapped by fixed deadlines. If you are not sure if it is working out, nothing wrong with extending the deadline. Also, pay attention to the medical science.
An employer is under no obligation to waive an essential function of the job. If an employer due to Covid-19 pandemic decides to waive an essential function of the job because the context has changed so dramatically, be sure to let the employee know that this waiver is not a permanent situation. Also, if you do that, be prepared for the employee later to claim that his or her job has evolved so that they can perform the essential functions of the job with or without reasonable accommodations. In short, this is a good time for the employer to be reassessing just what are the essential functions of the job.
A personal preference is not the same thing as an essential function. For example, many people may prefer the interpersonal contact of being in an office. However, their job may be such that the essential functions can be done anywhere. So, if an employer were to insist on coming into the office when the essential function could be done anywhere, that does create an ADA compliance issue.

D.8. May an employer ask employees now if they will need reasonable accommodations in the future when they are permitted to return to the workplace? (4/17/20)

Yes. Employers may ask employees with disabilities to request accommodations that they believe they may need when the workplace re-opens. Employers may begin the “interactive process” – the discussion between the employer and employee focused on whether the impairment is a disability and the reasons that an accommodation is needed.

My thoughts:

A person with Covid-19 may very well have a disability.
A person who has recovered from Covid-19 may very well have a record of a disability and possibly other disabilities as well.
As we have discussed numerous times in our blog, such as here, magic words are not required to start the interactive process.

D.9. Are the circumstances of the pandemic relevant to whether a requested accommodation can be denied because it poses an undue hardship? (4/17/20)

Yes. An employer does not have to provide a particular reasonable accommodation if it poses an “undue hardship,” which means “significant difficulty or expense.” In some instances, an accommodation that would not have posed an undue hardship prior to the pandemic may pose one now.

My thoughts:

An employer never has to provide an accommodation if it is an undue hardship.
Undue hardship can either be logistical or financial.
“Significant difficulty or expense”, is actually a term of art in ADA jurisprudence. So, don’t take that literally. In the world of the ADA, financial undue hardship is very difficult to show, such as we discussed here, though it may be slightly easier now in light of the financial hit being caused by the Covid-19 pandemic. Remember, EEOC final regulations, 29 C.F.R. §1630.2(p)(2), require looking at the entire resources of the entity with respect to figuring out financial undue hardship.
Logistical undue hardship, i.e. fundamental alteration, is also going to be much more complicated to determine with Covid-19 pandemic.
It is certainly possible that what would not an undue hardship previously is one now. However, that may happen less than you might think.

D.10. What types of undue hardship considerations may be relevant to determine if a requested accommodation poses “significant difficulty” during the COVID-19 pandemic? (4/17/20)

An employer may consider whether current circumstances create “significant difficulty” in acquiring or providing certain accommodations, considering the facts of the particular job and workplace. For example, it may be significantly more difficult in this pandemic to conduct a needs assessment or to acquire certain items, and delivery may be impacted, particularly for employees who may be teleworking. Or, it may be significantly more difficult to provide employees with temporary assignments, to remove marginal functions, or to readily hire temporary workers for specialized positions. If a particular accommodation poses an undue hardship, employers and employees should work together to determine if there may be an alternative that could be provided that does not pose such problems.

My thoughts:

Undue hardship considerations are always very fact specific. Again, as mentioned above, financial undue hardship looks to the entire resources of the entity.
Logistical undue hardship looks to how the business operates.
If the conclusion is reached that a proposed accommodation poses an undue hardship, do not forget about the interactive process so that it can be determined if there is in some accommodation that can be done that does not pose an undue hardship.

D.11. What types of undue hardship considerations may be relevant to determine if a requested accommodation poses “significant expense” during the COVID-19 pandemic? (4/17/20)

Prior to the COVID-19 pandemic, most accommodations did not pose a significant expense when considered against an employer’s overall budget and resources (always considering the budget/resources of the entire entity and not just its components). But, the sudden loss of some or all of an employer’s income stream because of this pandemic is a relevant consideration. Also relevant is the amount of discretionary funds available at this time – when considering other expenses – and whether there is an expected date that current restrictions on an employer’s operations will be lifted (or new restrictions will be added or substituted). These considerations do not mean that an employer can reject any accommodation that costs money; an employer must weigh the cost of an accommodation against its current budget while taking into account constraints created by this pandemic. For example, even under current circumstances, there may be many no-cost or very low-cost accommodations.

My thoughts:

Absolutely true that the loss of some or all of an employer’s income stream because of Covid-19 is a relevant consideration when it comes to financial undue hardship.
I am not sure I understand where the EEOC is going with respect to their view that it is relevant what the amount of discretionary funds available are when considering other expenses. Keep in mind, final federal regulations are always going to trump guidances as we discussed here.
Generally speaking, the actual cost of accommodations I have seen go as high as $1400 on the high-end. Many are $500 or less. The vast majority of accommodations do not cost anything at all. Have those costs changed in light of Covid-19? Maybe but maybe not appreciably. It may depend on the specific accommodation.

D.12. Do the ADA and the Rehabilitation Act apply to applicants or employees who are classified as “critical infrastructure workers” or “essential critical workers” by the CDC?

Yes. These CDC designations, or any other designations of certain employees, do not eliminate coverage under the ADA or the Rehabilitation Act, or any other equal employment opportunity law. Therefore, employers receiving requests for reasonable accommodation under the ADA or the Rehabilitation Act from employees falling in these categories of jobs must accept and process the requests as they would for any other employee. Whether the request is granted will depend on whether the worker is an individual with a disability, and whether there is a reasonable accommodation that can be provided absent undue hardship.

My thoughts:

The fact that a person is labeled by the CDC as a critical infrastructure worker or an essential critical worker has nothing to do with whether that individual is a qualified person with a disability under the ADA.
A qualified individual with a disability on probation is also covered by the ADA.

E.2. Are there steps an employer should take to address possible harassment and discrimination against coworkers when it re-opens the workplace? (4/17/20)

Yes. An employer may remind all employees that it is against the federal EEO laws to harass or otherwise discriminate against coworkers based on race, national origin, color, sex, religion, age (40 or over), disability, or genetic information. It may be particularly helpful for employers to advise supervisors and managers of their roles in watching for, stopping, and reporting any harassment or other discrimination. An employer may also make clear that it will immediately review any allegations of harassment or discrimination and take appropriate action.

My thoughts:

This paragraph is straightforward, and I do not have anything to add to it. That said, even now, an employer still has to take steps to address possible harassment and discrimination against coworkers. As we have discussed here, hostile work environment has been held applicable to people with disabilities.

G. Return to Work

G.1. As government stay-at-home orders and other restrictions are modified or lifted in your area, how will employers know what steps they can take consistent with the ADA to screen employees for COVID-19 when entering the workplace? (4/17/20)

The ADA permits employers to make disability-related inquiries and conduct medical exams if job-related and consistent with business necessity. Inquiries and reliable medical exams meet this standard if it is necessary to exclude employees with a medical condition that would pose a direct threat to health or safety.

Direct threat is to be determined based on the best available objective medical evidence. The guidance from CDC or other public health authorities is such evidence. Therefore, employers will be acting consistent with the ADA as long as any screening implemented is consistent with advice from the CDC and public health authorities for that type of workplace at that time.

For example, this may include continuing to take temperatures and asking questions about symptoms (or require self-reporting) of all those entering the workplace. Similarly, the CDC recently posted information on return by certain types of critical workers.

Employers should make sure not to engage in unlawful disparate treatment based on protected characteristics in decisions related to screening and exclusion.

My thoughts:

Any medical exams must be reliable.
Don’t go on fishing expeditions. That is, keep any inquiries and medical exams narrowly focused on Covid-19.
Rely on the best available objective medical evidence. You might consider as an employer having your own infectious disease specialist on retainer as the guidances from various governmental entities and public health authorities can be all over the place. Certainly, start with CDC.
Watch out for practices that screen out people based upon protected characteristics, including people with disabilities, in decisions relating to screening and exclusion.

G.2. An employer requires returning workers to wear personal protective gear and engage in infection control practices. Some employees ask for accommodations due to a need for modified protective gear. Must an employer grant these requests? (4/17/20)

An employer may require employees to wear protective gear (for example, masks and gloves) and observe infection control practices (for example, regular hand washing and social distancing protocols).

However, where an employee with a disability needs a related reasonable accommodation under the ADA (e.g., non-latex gloves, modified face masks for interpreters or others who communicate with an employee who uses lip reading, or gowns designed for individuals who use wheelchairs), or a religious accommodation under Title VII (such as modified equipment due to religious garb), the employer should discuss the request and provide the modification or an alternative if feasible and not an undue hardship on the operation of the employer’s business under the ADA or Title VII.

My thoughts:

It is entirely possible that protective gear may need to be modified for a person with a disability. Be sure to engage in the interactive process in that situation. For example, a lip reader like myself will have an incredibly difficult time trying to understand a person wearing a mask of some kind.
Interactive process!!!!!!!!!!!!!!!!!!!

Other thoughts:

Knowledgeable ADA legal counsel is more critical now than ever.
If you are in a State that is arguably getting ahead of the science, you will need to think about all of this. You will also need to be thinking about business interruption insurance coverage being available in the event of a future shutdown if you reopen ahead of the science, OSHA, negligence, and many other laws as well.

Stay safe y’all.

Understanding the ADA

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But For Causation is not Sole Causation and Other Matters: the Supreme Court LGBT Decisions

EEOC and Covid-19: Part IV

H. Age

I. Caregivers/Family Responsibilities

J. Pregnancy

Issues, Statistics, and Thoughts

What Does Transitory and Minor Mean for Purposes of Regarded As Claims

ADA and Face Masks

Association Discrimination and the ADA (Title I)

Illinois Assistance Animal Integrity Act

Title III Standing Plus Insurance Coverage for Failure to Accommodate Claims

Braille Gift Cards and Title III

Understanding the Americans with Disabilities Act, Fourth Edition

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