This week’s blog entry is an update on a previous blog entry and a discussion of the recent Supreme Court decision in Comcast, which involves the causation standard for §1981. Of course, what we are interested in is whether Comcast necessarily means the Supreme Court will decide but for causation is the standard for ADA matters outside of the retaliation and association discrimination contexts. I am already seeing the defense bar using this case in their briefs to say such is the case. Suffice to say, I don’t agree, and we will explore why that is the case below.

 

With respect to the update on the previous blog entry, the Eighth Circuit recently decided Harris v. Union Pacific Railroad Company. I am not going to spend a lot of time on Harris in this blog entry. However, a couple of things are worth pointing out with respect to Harris. The case was about whether the District Court properly certified a class action. The majority held that the District Court did not properly certify the class action because there were too many individual differences among disabilities. They ignored the issue of how Union Pacific Railroad uses a 1% rule to justify restrictions. The concurring opinion by Judge Kelly agrees that the class action was mistakenly certified with respect to all individuals with disabilities. However, Judge Kelly spent quite a bit of time on the 1% likelihood to get a disability rule saying that a class action would properly have been certified if the class action was restricted to people in individual job classes rather than to persons with disabilities as a whole. This case bears following because of the 1% rule being allowed as something that Union Pacific Railroad might, and it’s clear from the majority opinion the word is “might,” be able to defend.

 

With respect to Comcast Corporation v. National Association of African-American Owned Media and its significance for ADA causation, we are going to attack it in the following way: 1) The part of Justice Gorsuch opinion exploring §§1981-82; 2) the part of Justice Gorsuch opinion exploring why title VII motivating factor test does not get imported into §1981; 3) my counterpoint to the part of Justice Gorsuch’s opinion with respect to why the §§1981-82 discussion is distinguishable when it comes to the ADA; 4) my counterpoint/agreement to the part of Justice Gorsuch’s opinion with respect to his discussion of title VII; and 5) my thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Justice Gorsuch’s Reasoning Exploring §1981 and §1982

 

  1. Looking to §1981 particular statute’s text and history, the court saw no evidence of an exception to the but for causation rule.
  2. Citing to Nassar, which we discussed here, it is textbook tort law that a plaintiff seeking redress for a defendant’s legal wrong typically must prove but for causation.
  3. The ancient and simple but for common law causation test supplies the default or background rule against which Congress is normally presumed to have legislated against when creating its own new causes of action, including federal antidiscrimination laws like §1981 and the Age Discrimination in Employment Act.
  4. Justice Gorsuch doesn’t doubt that most rules have their exceptions. However, taken collectively, clues from the statute’s text, its history, and Supreme Court precedent persuade the court that §1981 follows the general rule.
  5. 1981 promises that all persons have the same right to make and enforce contracts, to sue, be parties, and give evidence as is enjoyed by white citizens. While the statute’s text does not expressly discuss causation, this language is suggestive and fits naturally with the ordinary rule that a plaintiff must prove but for causation. That is to say, if the defendant would have responded the same way to the plaintiff even if he had been white, an ordinary speaker of English would say that the plaintiff received the same legally protected right as a white person.
  6. It is the Court that created a judicially implied private right of action, doing so for the first time in 1975.
  7. As time has gone by, the Supreme Court has come to appreciate that private rights of action to enforce federal law must be created by Congress and that providing a cause of action where statute has not created them is a proper function for common law courts but not for federal tribunals.
  8. In the past, terms in the statutes such as “on account of,” and “by reason of,” have often been held to indicate a but for causation requirement.
  9. The common law in 1866 often treated showing but for causation as a prerequisite to a tort suit.
  10. The term “on the basis of race,” is strongly suggestive of a but for causation standard.
  11. Nothing in the previous §1981 decisions of the Supreme Court even gesture towards the possibility that the but for rule of causation sometimes might be overlooked or modified in the early stages of the case.
  12. With respect to §1982, the court has consistently held that “because of,” language is but for causation.

 

II

Justice Gorsuch on Why Title VII’s Motivating Factor Test Should Not Be Imported into §1981

 

  1. A critical examination of title VII’s history reveals more than a few reason to be wary of any invitation to import a motivating factor test into §1981.
  2. Motivating factor was first adopted in 1989 in the case of Price Waterhouse v. Hopkins, which can be found here.
  3. In the Civil Rights Act of 1991, Congress provided that a title VII plaintiff who shows that discrimination was even a motivating factor in the defendant’s challenged employment decision is entitled to declaratory and injunctive relief.
  4. A defendant may still invoke a lack of but for causation as an affirmative defense, but only to stave off damages and reinstatement, not liability in general.
  5. Title VII was enacted in 1964.
  6. Congress replaced the motivating factor test of the Supreme Court with its own version two years later.
  7. 1981 dates back to 1866 and has never said a word about motivating factors.
  8. Title VII and §1981 are two statutes with two distinct histories, and not a shred of evidence that Congress intended to incorporate the same causation standard.
  9. At the same time Congress added the motivating factor test to title VII, Congress also amended §1981 and did not even whisper about motivating factors.
  10. Like the motivating factor test, McDonnell Douglas is a product of title VII practice and does not remotely suggest that it applies to §1981.

 

III

Counterpoint to Justice Gorsuch’s Opinion Discussing §§1981-82 in Terms of How It Fits or Not with the ADA.

 

  1. Justice Gorsuch says that looking to §1981 statute’s text and history, no evidence of an exception exists. This is not the case with the ADA. For example, if you look at the legislative history of the amendments to the ADA, the term qualified was retained in order to preserve the McDonnell Douglas paradigm.
  2. Justice Gorsuch cites to Nassar numerous times in the opinion. Justice Gorsuch also cites to Gross. In Gross, the Supreme Court held that but for applies to Age Discrimination in Employment Act cases. Again, as we have discussed previously, that case is also distinguishable with respect to ADA causation. With respect to Nassar, we said that the case was a huge victory for both plaintiff and defense lawyers. With respect to defense lawyers, they get but for causation when it comes to retaliation. However, Justice Kennedy made it quite clear that status based discrimination, which is disability discrimination outside of retaliation and association, does allow for motivating factor.
  3. Justice Gorsuch says that clues from the statute’s text, its history, and precedent persuades him that §1981 follows the general rule. That doesn’t hold up with respect to the ADA for reasons we will see in a minute.
  4. The ADA specifically authorizes private lawsuits to enforce disability discrimination unlike §1981.
  5. While it is true that the Supreme Court has held that “on account of,” and “by reason of,” indicate but for causation, you can’t make that leap with respect to the ADA. For example, the ADA is based upon §504 of the Rehabilitation Act of 1973. That particular statute, 29 U.S.C. §794, says that causation is, “solely by reason of.” However, causation under title II of the ADA is “by reason of,” and Congress is presumed to have known that at the time title II was enacted, especially since the Rehabilitation Act was enacted in 1973. There has to be a reason why Congress did not import the word “solely,” into title II of the ADA. A plain reading of the two statutes leads to the conclusion that “solely by reason of,” and “by reason of, must be different causation standards. In fact, many cases across the country have so concluded.
  6. Similarly, when it comes to association discrimination and retaliation under the ADA, the relevant ADA statutory provisions are quite explicit that causation is “because of.” However, when it comes to disability discrimination outside of association discrimination and retaliation discrimination, the terms used are “on the basis of” (title I and title III), and “by reason of” (title II). Congress clearly could have adopted the same terminology as it did for association and retaliation claims but it did not.
  7. The ADA was signed into law in 1990, one year after McDonnell Douglas.
  8. Title I of the ADA specifically hooked into title VII of the Civil Rights Act for its remedies.
  9. While title II of the ADA hooks into title VI of the Civil Rights Act for its remedies, one is drawn to the fact that the word “solely,” is completely missing from ADA causation and it appears for Rehabilitation Act causation. As already mentioned, the ADA was 1990 and the Rehabilitation Act was 1973.
  10. The ADA is more than just a typical Civil Rights Act statute. Unlike §1981 and §1982, the ADA imposes upon covered entities the duty to make reasonable accommodations/modifications in order to get a qualified person with a disability to the same starting line as a person without a disability. That affirmative duty fundamentally changes any causation calculus with respect to an analogy to §1981-82.
  11. Absolutely true that but for causation is ancient. However, it is also ancient that where there is more than one but for causation, substantial factor or some test like that comes into play.

 

IV

Counterpoint/Agreement with Justice Gorsuch’s Discussion on Title VII.

 

  1. Title VII was enacted in 1964.
  2. Justice Kennedy in Nassar specifically states that status based discrimination claims are subject to a mixed motive analysis. Disability discrimination outside of association discrimination and retaliation, is status based discrimination.
  3. As mentioned above, evidence does exist that Congress intended to incorporate motivating factor into status based disability discrimination claims. Again, as mentioned above, legislative history exists that the word “qualified,” was specifically retained in order to preserve McDonnell Douglas as part of ADA discrimination cases.
  4. Congress did amend the ADA in 2009. That amendment did a lot of things, particularly with respect to definitional items and the overturning of Supreme Court cases. In particular for purposes of this blog entry, it got rid of the term “because of,” that appeared in the ADA as enacted in 1990 and replaced it with “on the basis of,” when it came to causation under title I of the ADA. Why would Congress do that if but for and on the basis mean the same thing? Interestingly, the amendments did not change the causation terminology for title II (see discussion above), and for title III.
  5. McDonnell Douglas, as Justice Gorsuch says, is a product of title VII practice, and the ADA is a civil rights statute. In fact, with respect to title I, remedies are specifically linked to title VII.

 

V

Thoughts/Takeaways

 

  1. You can expect that every single ADA case from here on out will be litigating over the applicability of Comcast to ADA matters.
  2. You can also expect that the Supreme Court will have to address this issue if Congress doesn’t do it first after the 2020 elections, depending upon results of course.
  3. The Supreme Court has given conflicting signals on causation. On the one hand, Justice Kennedy, as noted above, made it quite clear that status based discrimination, which disability discrimination is outside of association and retaliation, is motivating factor. On the other hand, in the case we discussed here, Justice Alito seemed to walk that back.
  4. Justice Gorsuch, as we discussed here, has a record of being open minded to the rights of persons with disabilities when he was on the lower courts. Justice Roberts while being a person that favors corporations quite a bit, has also been very open minded to persons with disabilities (such as here for example).
  5. Does motivating factor actually help plaintiffs? I once had a plaintiff lawyer tell me that it doesn’t. He thought that juries don’t understand it. However, that lawyer most certainly seems to be in the minority. If you are on the plaintiff side, which I am not always, I sure hope you read this blog entry.
  6. While it is absolutely true that “but for,” causation is ancient, it is also true that but for cases often have more than one “but for,” cause. Every one of us who has gone to law school knows that where there is more than one but for cause, but for causation turns into substantial factor, and many ADA cases involve more than one cause. Assuming a court goes with “but for,” a plaintiff attorney might also argue substantial factor where more than one cause exists. That is not exactly the same as motivating factor, but it’s close (see this blog entry for example).
  7. You can also expect in light of this decision a lot more litigation on whether the evidence involves direct evidence or indirect evidence. In the case of direct evidence, you come much closer to “but for,” causation than you do with respect to indirect evidence. If causation is “but for,” what does that even mean for McDonnell Douglas and direct evidence? It will create a mess. Will that lead to replacing direct and indirect evidence with convincing mosaic, such as we discussed here?
  8. Currently, the two hottest areas of ADA jurisprudence our Internet accessibility and service animals. You can now expect causation to join that category.

Covid-19, Virus, Coronavirus, Pandemic

 

Fishing, Coast, Ocean, Sea, Water

Don’t do this with disability related inquiries and medical exams.

 

Today’s blog entry is one of those situations where I spent some of my morning determining what I was going to blog on. Then, late breaking news intervened, and so I had to change it up. My original plan was to blog on a case I discussed in last week’s blog entry, which can be found here and dealt with associational discrimination. However, thanks to my colleague in the Deaf and Hard of Hearing Bar Association, Mark Sorokin, Esq., I found out that the EEOC just put out two days ago a guidance on coronavirus in the workplace using its pre-existing guidance on an influenza pandemic. How could we not discuss? In the paragraphs below, §§I-IV, you will see both what the EEOC says and simultaneously my thoughts. At the end of this blog entry, I have a separate thoughts/Takeaway section as well. The blog entry does get divided into categories, and they are: definitional issues; disability related inquiries and medical examinations scheme; direct threat; and thoughts/takeaways. The reader is free to concentrate on any or all of the categories.

 

I

Definitional Issues

 

  1. The ADA prohibitions on disability related inquiries and medical examinations continue. Remember, the disability related inquiries and medical examination scheme applies to all applicants and employees regardless of whether they have a disability. We discussed that scheme here.
  2. The reasonable accommodation requirement also continues during this pandemic.
  3. The ADA’s prohibition on excluding individuals with disabilities from the workplace for health or safety reasons unless they pose a direct threat continues.
  4. A disability related inquiry is an inquiry likely to elicit information about a disability. See this blog entry for example.
  5. A medical examination is a procedure or test that seeks information about an individual’s physical or mental impairment or health. Medical examinations come up quite frequently in this blog, such as here. Factors to consider are: whether the test involves the use of medical equipment; whether it is invasive; whether it is designed to reveal the distance of a physical or mental impairment; and whether it is given or interpreted by a medical professional.
  6. All information about applicants or employees obtained through disability related inquiries by medical examinations must be kept confidential. Any information regarding the medical condition or history of an employee must be collected and maintained on separate forms and in separate medical files and be treated as a confidential medical record.
  7. A reasonable accommodation is any change in the work environment that allows an individual with the disability to have an equal opportunity to apply for a job, perform a job’s essential function, or enjoy equal benefits and privileges of employment. I prefer to think of it as getting the person with a disability to the same starting line as a person without a disability.
  8. An undue hardship is an accommodation that would result in a significant difficulty or expense for the employer after considering: 1) the nature and cost of the accommodation; 2) the resources available to the employer; and 3) the operation of the employer’s business.

 

II

 

The Disability related Inquiries and Medical Examination Scheme

 

  1. The ADA, as we already know, has a scheme for dealing with disability related inquiries and medical examinations and it works like this. First, before a conditional offer of employment, disability related inquiries and medical exams are prohibited. Second, after a conditional offer of employment but before an individual begins working, the ADA allows for disability related inquiries and medical exams if all entering employees in the same job category are subject to the same inquiries and examinations. Finally, once a person is employed, the only time disability related inquiries and medical examinations are allowed is if it is job-related and consistent with business necessity. We have talked about job-related and consistent with business necessity numerous times in this blog entry, such as here. In particular, the EEOC says that a disability related inquiry medical examination is job-related and consistent with business necessity when the employer has a reasonable belief based upon objective evidence that: A) an employee’s ability to perform essential job functions is impaired by a medical condition; or B) an employee will pose a direct threat due to a medical condition. As we have mentioned before in our blog entry, when it comes to figuring out direct threat, be sure you have read this case before making any final determinations.
  2. After a conditional job offer, an employer may screen job applicants for symptoms of Covid-19 so long as they do so for all entering employees in the same type of job. Such screening may include the taking of temperature. Keep in mind, there are those with Covid-19 that do not have a fever.

 

III

Direct Threat

 

  1. A direct threat is a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation. If a person is a direct threat, they are no longer protected by the ADA (courts will say that they are no longer qualified).
  2. Direct threat must be based upon objective, factual information, and not on subjective perceptions or irrational fears about a specific disability or disabilities. In figuring out direct threat, various factors are considered, including: 1) the duration of the risk; 2) the nature and severity of the potential harm; 3) the likelihood that potential harm will occur; and 4) the eminence of the potential harm. We have seen these factors come up before, such as in this blog entry.
  3. Did I mention Chevron v. Echazabal?
  4. As of March 2020, based upon CDC guidance and public health authorities, COVID-19 does rise to the direct threat standard. Down the road, that may change but not now.
  5. Since Covid-19 is a direct threat, an employer has the right to send home an employee with Covid-19 or symptoms associated with it.
  6. Since Covid-19 is a direct threat, an employer may ask employees who report feeling ill at work or call in sick, questions about their symptoms in order to determine if they have or may have Covid-19. Those symptoms include, for example, fever, chills, cough, shorteness of breath, or sore throat. Keep in mind, the technical assistance memorandums for title I, title II, title III all have language in them precluding a fishing expedition. So, an employer will want to keep any such inquiries focused on Covid-19 symptoms and not engage in a fishing expedition.
  7. Since Covid-19 is a direct threat, employers can measure employees body temperature. Remember, the fact that an employee had a fever or other symptoms is subject to the ADA confidentiality requirements.
  8. Since the Covid-19 is a direct threat, employers may follow CDC advice and state/local public health authorities regarding any information needed to permit an employee’s return to the workplace after visiting a specified location, whether it be for business or personal reasons. Don’t forget about such information being narrowly focused as mentioned above.
  9. When it comes to the reasonable accommodation process, reasonable accommodation should be addressed as soon as possible. However, the EEOC recognizes that Covid-19 has created extraordinary circumstances and therefore, delay in discussing requests and providing accommodations can occur where warranted. Employers and employees are encouraged to use interim solutions to enable employees to keep working as much as possible. In other words, don’t forget about the interactive process.
  10. Since Covid-19 is a direct threat, an employer may delay the start date of an applicant who has Covid-19 or symptoms associated with it.
  11. The ADA does not interfere with employers following recommendations of the CDC or public health authorities and employers should feel free to follow those recommendations. Keep in mind, the public health authorities are following the CDC recommendations pretty closely.
  12. Since Covid-19 is a direct threat, an employer can withdraw a job offer when it needs the applicant to start immediately but the individual has Covid-19 or symptoms of it.
  13. The CDC’s coronavirus page can be found here. The White House also has a page with resources on it as well, here.

 

IV

Thoughts/Takeaways

 

  1. In general and as a matter of preventive law, when trying to figure out what is a disability related inquiry it really helps if you can involve persons with disabilities in the process. Their antenna for disability related inquiries is very sensitive.
  2. Chevron v. Echazabal is mandatory reading.
  3. The EEOC regulations allow for direct threat to self or others. However, the DOJ regulations, which apply to title II and title III of the ADA, only allow for direct threat to others.
  4. Reasonable accommodation is a title I term. Reasonable modification is the title II and title III term. Their meanings are essentially the same; they only differ by context.
  5. Don’t get thrown by trying to figure out significant difficulty or expense. For difficulty, think the title II and title III concepts of fundamental alteration. I once heard an EEOC commissioner refer to that as logistical undue hardship. For significant expense, remember the entire resources of the entity get considered. So, even though something may cost a lot of money, they still may not be a sufficient defense for an undue hardship in the financial sense. See this blog entry.
  6. If you are doing disability related inquiries and medical exams subsequent to a conditional job offer, don’t forget you have to be doing it for all entering employees in the same job category and all such employees have to be subject to the same inquiries or exams.
  7. Since businesses are suffering greatly, there may be a temptation to have the employee or prospective applicant pay for the medical exam or disability related inquiry. Preventive law demands you don’t take that approach. See this blog entry.
  8. One thing that will be very interesting to see is what happens if the White House decides to focus on getting businesses going but by doing so, the science indicates a much greater spread of the epidemic. In that situation, businesses will have to make a choice between best infection control practices and stopping the epidemic v. being open for business. As a matter of preventive law, businesses should think strongly about focusing on the science if they want to prevent all kinds of liability.
  9. If a person is a direct threat, reasonable accommodations are in order up to the point of direct threat.
  10. The EEOC technical assistance memorandum for title I at §6.6 prohibits fishing expeditions. That is, keep any coronavirus assessment medical exams and/or disability related inquiry narrowly focused on that and don’t go fishing.
  11. The EEOC believes employers can get a little slack with reasonable accommodation process at the moment in light of everything that is going on. Preventive law says don’t take too long for that. With respect to what case law says is too long for the interactive process, cases are all over the place. Preventive law demands sooner is better than later.
  12. Interactive process!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
  13. What if you are a title II or a title III entity and you are trying to figure out how to deal with clients or customers who may have Covid-19? As far as I can tell, the DOJ has not issued any guidances in this area. The EEOC guidelines we are discussing here are informative but not dispositive. Title II and title III also use the term direct threat. It essentially means the same as in title I except it only focuses on direct threat to others. Figuring out a direct threat is the same process regardless of the title of the ADA involved. So, you may be able to utilize many of the same things the EEOC says is okay in the context of title II and title III. However, I would not apply the EEOC guidance to title II and title III situations without getting knowledgeable ADA legal counsel involved first.
  14. Another title II or title III issue that may come up is that the coronavirus may play with existing accommodations. For example, for those who are oral deaf or hard of hearing, CART services are a tremendous help. What if the coronavirus impacts on the ability to get a CART provider? Well, under the effective communication rules for title II, primary consideration has to be given to the way the particular individual communicates. Under title III, those regulations allow for more of a give-and-take with the place of public accommodation having the ultimate say. The recipe here is making sure you use the interactive process to reach a win-win solution. Finally, remember the ADA is a nondelegable duty and the ADA obligations don’t stop just because of the coronavirus.

Covid-19, Virus, Coronavirus, Pandemic

Coronavirus

Everything is about the coronavirus both in our personal lives and in our professional lives. You can find several excellent blog entries on the coronavirus from people in my blog roll, such as but not limited to Jon Hyman and Eric Meyer. I saw the other day that OSHA has weighed in as well. There is legislation currently pending in Congress that would offer relief to people who come down with the virus and work for employers of less than 500 people. The coronavirus has become such a big part of legal blogging that Lex blog even has its own coronavirus category you can subscribe to.

 

What I wanted to do was to focus on some basic concepts of the ADA as it applies to the coronavirus. This discussion is not meant to be exhaustive of all ADA issues that may be out there. Rather, it just hits some of the obvious considerations. Also, the blog entry is not divided into our usual categories, rather it is just a series of individual items.

 

  1. Is coronavirus a disability? As with all things ADA that’s complicated. It certainly is a physical impairment. Does it limit a major life activity? Well, the EEOC would certainly say that it substantially limits the major life activity of interacting with others. No one could seriously argue that it wouldn’t substantially limit the major life activity of breathing. It certainly impacts the immune system and the respiratory system. Before the amendments to the ADA, you could argue that the coronavirus is a temporary condition and therefore, not protected. After the amendments to the ADA, it isn’t so simple. The EEOC has said that a condition lasting less than six months may well be a disability under the ADA as amended. I have said previously that a good preventive tool for figuring out whether a temporary disability may nevertheless be a protected disability would be borrowing from the regarded as provisions, which contains an exception for disabilities that are both transitory and minor. Coronavirus is certainly transitory, but it may or may not be minor. Again, using the transitory and minor provisions this way is a preventive law approach and not demanded by the statute or the final implementing regulations themselves.
  2. For a person with coronavirus to be protected under the ADA, they also must be qualified. Under title I of the ADA final implementing regulations –29 C.F.R. §1630.2(m)- a person with a disabling condition is qualified if he or she satisfied the requisite skill, experience, and education requirements of the position and can, with or without reasonable accommodation, perform the essential functions of the job. So, the question then becomes can the person with coronavirus perform the essential functions of the job with or without reasonable accommodations. That of course leads to the question whether telecommuting is a reasonable accommodation. We have talked about quite a bit whether telecommuting is a reasonable accommodation, such as here. Whether telecommuting is a reasonable accommodation depends very much upon whether attendance is an essential function of the job. For that question, I prefer looking to the Samper case for figuring that out. However, the game has now changed since everyone is being encouraged to telecommute. Finally, I just read an article in the Wall Street Journal opinion page today how everybody moving to telecommuting is going to fundamentally change the nature of work. Once worksites and individuals realize that telecommuting is something that can be done and see its benefits, the thinking is that people will not look back. Also, definitely look for telecommuting as a result of the coronavirus to be used as a sword by plaintiff lawyers in the future saying that since everything was fine when telecommuting happened with the coronavirus, how could it not be allowed without the coronavirus. To head off that possibility, I saw on LinkedIn a posting by David Fram, ADA training director, NELI, saying that it would be a good idea for an employer to put out a notice saying they recognize that the essential functions of the job may not all be performed in light of the coronavirus but that does not mean they are forever waving all of the essential functions of the job. I thought David’s idea had a lot of merit to it. Even so, I still expect plaintiff lawyers in the future to use telecommuting done as a result of the coronavirus as a sword in the future for the proposition that telecommuting should be in order as a reasonable accommodation once the coronavirus is out of gas. Samper Samper and more Samper.
  3. Record of is another ADA concept needing to be kept in mind. A person has a disability if they have a record of a disability. Is a person who had the coronavirus a person with a record of the disability once they have gotten the coronavirus? Again, that is going to depend upon whether this particular illness, especially in light of the transitory nature, could be considered a disability. So, in the future some time, employers are going to want to be wary of taking adverse action against a person who had the coronavirus on that basis.
  4. Regarded as is yet another concept. Regardless of whether the coronavirus is a disability, a person can be protected under the ADA if they are regarded as having a physical or mental impairment and adverse action is taken against them on the basis of that. True, regarded as does not allow for reasonable accommodations. However, everybody is supposed to be home anyway. That said, some businesses are open, and they may be taking adverse action against customers or employees because they assume a physical or mental impairment exists. They want to be very careful when they do that. Also, see the direct threat discussion below. A substantial limitation on the major life activity is not necessary for regarded as claims.
  5. Associational discrimination. Title I of the ADA at 42 U.S.C. §12112(b)(4) prohibits discrimination because of the known disability of an individual with whom the qualified individual is known to have a relationship or association with (Title II final implementing regulations at 28 C.F.R. §35.130(g) and title III final implementing regulations at 28 C.F.R. §36.205 stand for the same proposition). A few things about this. First, there is no reasonable accommodation requirement. However, with the coronavirus, a tremendous amount of people are working remotely from home anyway. Second, the association discrimination provisions use “because of,” language and not on the basis language, which creates an issue that causation may well be different for association discrimination than it is for discrimination against the individual with a disability. Third, the courts are split on what is necessary for an association discrimination to apply. That is, in a case we discussed here, the Seventh Circuit and the Second Circuits, which followed the Seventh Circuit decision, have said that association discrimination must fit into one of three categories. However, the Sixth Circuit, here, has said that the three theories articulated by Judge Posner are not necessarily an exhaustive list. Recently, the United States District Court for the Middle District of North Carolina in Schmitz v. Almanance-Burlington Board of Education (Schmitz is a tour de force with respect to dealing with association discrimination claims, and I have it in my pipeline of cases to blog upon), explicitly cited to the Sixth Circuit and also said that association discrimination claim need not fit into one of Judge Posner’s categories.
  6. DIRECT THREAT. There is a reason why I put “direct threat,” in all caps at the beginning of this paragraph because it is the number one ADA consideration at the moment. Direct threat is something we have talked about numerous times before, such as here. What is critical to remember it’s a couple of things. First, the EEOC regulations-29 C.F.R. §1630.2(r)-, and the DOJ regulations- 28 C.F.R. §§35.139, 208-, echo the United States Supreme Court decision in Chevron v. Echazabal, which we have discussed here. Second, the EEOC regulations allow for a direct threat to self or others, while the DOJ regulations only talk about direct threat to others. All require a determination based upon a reasonable medical judgment relying on the most current medical knowledge and/or the best available objective evidence after an individualized assessment of the individual’s present ability to safely perform the essential functions of the job (title I), or to meet the essential eligibility requirements of the nonfederal governmental entity’s programs, services, or activities (title II). All require reasonable accommodations/reasonable modifications being made up to the point of direct threat. In determining whether a direct threat exists, you look at per School Board of Nassau County, Florida v. Arline, here: 1) the nature of the risk (how the disease is transmitted); 2) the duration of the risk (how long is the carrier is infectious); 3) the severity of the risk (what is the potential harm to third parties); and 4) the probability the disease will be transmitted and will cause varying degrees of harm.Finally, as we have discussed here, direct threat may or may not be an affirmative defense.
  7. Where do I go to get information about the coronavirus? Why do I even need information about the coronavirus? There are two answers to that question. First, everyone needs information about the coronavirus. What you see on the media can be all over the place. The number one source you want to go to is the CDC website on coronavirus. They are also constantly every day issuing more and more guidelines and more and more information. Second, the reason you need to know the CDC information is because direct threat has to be based upon an individualized analysis based upon the most current medical knowledge and/or the best available objective evidence.
  8. The ADA does not end with everybody working remotely nor does it end with respect to people accessing nonfederal governmental entities or places of public accommodations. The context may be different than before thanks to the coronavirus, but the ADA rules do apply. Of course, direct threat, as the ADA understands the term, is as important as ever.
  9. This blog entry is not supposed to be an exhaustive list of all ADA concepts that may be involved when dealing with the coronavirus, but it is certainly a start. For specific legal advice on the ADA concerns, contact an ADA knowledgeable attorney. Finally, it isn’t just the ADA involved. You also have OSHA, Workers Compensation, and FMLA to name just a few involved as well and for that, contact knowledgeable attorneys in those areas.

Do social distancing (I am planning on using an app to even go grocery shopping for me), wash your hands frequently, stay healthy, and hang in there y’all.

Today’s blog entry comes from a connection to mine on LinkedIn, Janette Levey Frisch, an employment lawyer in the New York City area (East Brunswick, New Jersey), blogging at EmpLaWyerologist, http://theemplawyerologist.com/. The case is Fisher v. Nissan North America, Inc., a published decision from the Sixth Circuit decided on February 27, 2020, which can be found here. The case explores the issues of interactive process, direct and indirect evidence, and reassignment. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

Fisher was hired as a production technician on a factory line in 2003 and received consistently positive performance evaluations with few disciplinary problems. In 2015, his kidney problems worsened. He discussed illness with his supervisor explaining that his kidney function, which had been low for years, had dropped considerably. Since he wanted to continue working, he asked his supervisor for transfer to an easier position. The supervisor responded, “I could put you somewhere, but it ain’t for this kind of stuff. You just need to go on, go on out.” Accordingly, Fisher went on long term disability.

 

In August 2016, Fisher received a kidney transplant. For months afterwards, he was easily fatigued. The medication caused serious side effects that Fisher described as almost like having the flu every day. If he exerted himself to the point of sweating, his kidney function decreased and the symptoms worsened. His doctor estimated that it would take a year to become accustomed to the medicines.

 

By October, his leave was running out and his long-term disability payments were ending. Nissan’s human resources manager warned him that if he would not able to extend his leave, he could lose his job. She also said that he could not return to work with restrictions. When Fisher discussed the situation with the doctor, she cleared him to return to work.

 

When he returned to work, the job that people thought would be an easier position turned out to be 10 times harder than his original job. He requested extra breaks or to work half-time and was refused. When he asked for a transfer to a different position, his supervisor’s response was equivocal: “yes, maybe, you know, we’ll see.”

 

Around the same time, on October 20, his doctor wrote a letter explaining that Fisher was risking his health and that ideally Fisher needed at least another month off work to build up his strength. She also wrote that he would benefit from being transitioned into a job gradually, perhaps by working half-time for a few weeks before doing full-time work. Before a decision was reached on his pending transfer request, human resources manager informed Fisher that he had been granted extra leave.

 

He then was placed back into his original position. He had not acclimated to his antirejection medicines and the flu like symptoms continued. He also needed time off for doctors appointments but did not have any leave time left. As a result, he began to miss work more frequently and be disciplined for his absences. As each warning was issued, he met with supervisors and human resources to discuss his attendance. At those meetings, he always described his kidney transplant and requested potential accommodations all to no avail.

 

On February 3, the final meeting, Fisher explained his illness and his doctor’s suggestion regarding his return to work. One of the human resources representative said that Nissan needed restrictions and not suggestions. Fisher responded that he had not been permitted to return to work with restrictions. The HR representative went ballistic and said that he could not just be going home for a stomachache. According to Nissan’s notes from the meeting, Fisher said that the company was not willing to work with him and requested another job. Human resources asked if he could not come to work, what good would moving him to another job accomplish? To that, Fisher responded, “let’s do it and will see.” Without further discussion of the possibility of a transfer, Nissan issued the final warning. At the end of the meeting, a representative told Fisher that he had never seen anybody come back from a final written warning. So, Fisher left the plant without informing the supervisors and did not return. A week later, he was terminated for absenteeism. Fisher brought suit under the ADA and the Tennessee Disability Act as well as a Tennessee claim for intentional infliction of emotional distress. The District Court granted summary judgment on all claims, and Fisher appealed.

 

II

Court’s Reasoning

 

  1. Per 42 U.S.C. §12112 (a), a covered entity cannot discriminate against a qualified individual on the basis of disability. Further, the definition of discrimination in the ADA, per 42 U.S.C. §12112(b)(5)(A), includes not making reasonable accommodation to the known physical or mental limitations of a qualified individual with a disability absent an undue hardship on the operation of the business.
  2. Since the failure to accommodate is specifically listed in the definition of disability discrimination, claims based upon the employer’s failure to offer reasonable accommodation involve direct evidence. Therefore, if the factfinder accepts the employee’s version of the facts, no inference is necessary to conclude that the employee has proven this form of discrimination.
  3. While cases do exist talking about how failure to accommodate cases are analyzed under the indirect evidence method of proof, those cases trace back to a single Rehabilitation Act case. While the Rehabilitation Act and the ADA have many similarities, they are not identical. Accordingly, existing Sixth Circuit precedent saying that failure to accommodate cases are analyzed under the direct evidence approach prevails.
  4. Fisher also provided additional direct evidence of discrimination in the form of an alleged policy against accommodating personal disabilities. According to both Fisher’s testimony and notes from a nurse at his doctor’s office, Nissan refused to allow him to return to work with restrictions. Yet, Fisher claimed to have heard of at least two coworkers permitted restrictions and reassignment to easier positions after suffering on-the-job injuries. When he asked his supervisor about this, one of his supervisors explained that Nissan does not accommodate personal restrictions (i.e. disability not occurring on the job).
  5. If direct evidence is involved, Fisher bears the burden of establishing: 1) that he is a person with a disability; and 2) that he is otherwise qualified for the position despite his or her disability: a) without accommodation from the employer; b) with an alleged essential job requirement eliminated; or c) with a proposed reasonable accommodation. Nissan bears the burden of proving that a challenge job criterion is essential and either: 1) a business necessity; or 2) the proposed accommodation will impose an undue hardship upon Nissan.
  6. A neutral policy is of no moment when direct evidence is involved. That is, an employer cannot illegitimately deny an employee a reasonable accommodation pursuant to a general policy and then use that same policy as a so-called neutral basis for firing him.
  7. While absences may have been the basis for the termination, using absences as the basis for a termination doesn’t work where the absences are due to an underlying failure to accommodate the disability. That would be the same as allowing the school lacking an elevator to accommodate a teacher with mobility problems to go ahead and fire that individual for being late to class after it took too long for that individual to climb the stairs between periods.
  8. The question to ask is whether the absences could have been avoided with reasonable accommodations.
  9. When it comes to failure to accommodate cases, the plaintiff bears the initial burden of showing that an accommodation is reasonable on its face, i.e., ordinarily or in the run of cases. The defendant then has to show special circumstances demonstrating an undue hardship in the particular circumstances or that the proposed accommodation eliminates an essential job requirement.
  10. Whether a proposed accommodation is reasonable, is a question of fact.
  11. Plaintiff identified three potential accommodations that could have help with the transition back to full-time employment, including: a transfer to a different position; extra breaks; or a temporary part-time schedule.
  12. Under the ADA, 42 U.S.C. §12111(9)(B), reasonable accommodations include reassignment to a vacant position. To show disability discrimination in the reassignment context, a plaintiff has to show either that he requested and was denied reassignment to a position for which he was otherwise qualified or that he requested and was denied some specific assistance in identifying job for which he could qualify.
  13. Where an employee requests assistance in identifying vacant positions (magic words are not required), then the employer has a duty under the ADA to ascertain whether it has some job that the employee might be able to fill. Once that is done, the plaintiff generally must identify the specific job he seeks and demonstrate that he is qualified for the position if he is to overcome summary judgment.
  14. While Fisher did not understand the ADA framework, he did realize that he had some kind of right to hold onto his job or to get a little bit of assistance somehow, but Nissan provided neither assistance nor explanation. He also repeatedly requested a move to something easier in the same way as other people have been moved when they suffered on-the-job injuries. So, a reasonable factfinder could conclude that these interactions were requests for accommodations, including both for specific transfers and for assistance in identifying jobs for which Fisher could qualify.
  15. Considering the requests for accommodation, Nissan was obligated to do the following: 1) identify the full range of alternative positions for which plaintiff satisfied the employer’s legitimate, nondiscriminatory prerequisites; 2) determine whether the employee’s own knowledge, skills, and abilities would enable plaintiff to perform the essential functions of any of those alternative positions with or without reasonable accommodation; and 3) consider transferring the plaintiff to any of those other jobs, including those that would represent a demotion.
  16. While the off-line positions were not a reasonable request because the positions were either not vacant or asked Nissan to trump the rules of a seniority system, other positions were vacant and did not create a situation where a seniority system was upended. Accordingly, Nissan then gets the opportunity to show that Fisher’s transfer request would create an undue hardship or remove an essential function of the job and they have not done that. The accommodation of Fisher has no bearing on whether a subsequent transfer request was unreasonable.
  17. Once an employee requests an accommodation, the employer has the obligation to engage in the interactive process.
  18. Both parties have a duty to participate in good faith when it comes to the interactive process.
  19. Once an employee establishes a prima facie case showing that he proposed a reasonable accommodation, the employer then has the burden of showing how the accommodation causes an undue hardship.
  20. Whoever blows up the interactive process bears the consequences.
  21. While an employer is not required to propose counter accommodations, doing so may be evidence of good faith.
  22. An employer who determines what accommodation it is willing to offer before ever speaking with the employee does not participate in good faith.
  23. There was also a discovery dispute and the Tennessee intentional infliction of emotional distress claim. The court resolved both of those in favor of the defendant by affirming the District Court’s decision on those issues.

 

III

Thoughts/Takeaways

 

  1. There is lots of good information in this case for the ADA practitioner.
  2. The court consistently uses the term “otherwise qualified.” However, that term is a Rehabilitation Act term and not an ADA term. The ADA term is, “qualified.” The distinction is one for academics as the substantive meaning between the two are identical.
  3. Absolutely huge that this court says failure to accommodate cases are always direct evidence. The distinction between direct evidence and indirect evidence can get really confusing. In fact, as we discussed here, one jurisdiction is ready to throw up its hands with respect to the distinction and just rely on convincing mosaic. As far as I can tell, one of the critical things about failure to accommodate cases being direct evidence per se is that it becomes much easier than under the indirect evidence test for plaintiff to survive summary judgment.
  4. Absolutely true that the ADA is based upon the Rehabilitation Act. Also, absolutely true that the two laws are extremely similar and get interpreted in the same way. However, they are not identical. The most common way they are not identical is with respect to causation. There are some other ways depending upon the title of the ADA involved, in which the two laws are not identical. So, you do want to be on your toes with respect to how the ADA and the Rehabilitation Act may differ from each other. Offhand, I can think about three or four differences that you may come across quite often.
  5. This case says that if you have a Rehabilitation Act claim, it still may be possible to insist on having a failure to accommodate case handled under the indirect evidence test.
  6. I have seen this before where a court says that a plaintiff establishing whether they are qualified/otherwise qualified for the position involved as one of the options showing that an essential job function can be eliminated. I’ve said it before that I just don’t get this. The ADA does not require an essential job function to be eliminated. It does require that the essential job function be reasonably accommodated. It also in the title I context, allows for the transferring of marginal functions of the job onto others. The court seemed to say contradictory things by saying one thing about what the plaintiff has to show and then saying the opposite when it comes to describing undue hardship. At least, when the court describes undue hardship, it does get it right by saying waving an essential function of the job is an undue hardship. I still don’t get the prima facie part where they say a plaintiff could show an essential job function could be eliminated.
  7. Terminating an individual for absences will not work where the absences are the result of the employer failing to accommodate the person’s disability.
  8. Whether an accommodation is reasonable is a question of fact.
  9. Magic words are not required when it comes to asking for a reassignment.
  10. Depending upon the jurisdiction, if the plaintiff asked for help in figuring out the way out of a bad situation, such as reassignment, the employer may have the obligation to work with the plaintiff to identify the full range of alternative positions for which the plaintiff is qualified per the ADA. Such a practice is good preventive law in any event.
  11. The mandatory reassignment rules apply to vacant positions whose transfer would not involve upending a seniority system. Courts differ on the mandatory reassignment question, as we discussed here. So, check your jurisdiction.
  12. The interactive process requires both parties exercise in good faith with the one blowing up the interactive process bearing the consequences.
  13. Good idea for the employer to propose counter accommodations if the employee’s accommodations don’t work for the employer as that is evidence of good faith.
  14. An employer should never determine the accommodation they are willing to offer without speaking with the employee first.
  15. 100% return to work policy are a really bad idea, which is a point we have discussed before, such as here.
  16. Since failure to accommodate causes of action are a direct evidence matter in the Sixth Circuit, that also strongly suggests that the failure to accommodate cause of action does not require an independent adverse action in the Sixth Circuit. For this issue, see this blog entry.
  17. Another really bad idea, is having a policy, practice, or procedure where you only accommodate disabilities that occurred on the job and not those that were pre-existing or occurred in another way. Under the ADA, it simply doesn’t matter how the person becomes a person with a disability. It only matters that the person is a person with a disability.

I missed a blog entry last week. However, I had a good excuse. I had pressing client matters at the beginning of the week. In the middle of the week, my parents came in to visit. So, not a lot of available time. I’m back though.

 

Previously, I have blogged, here, on the District Court decision involving a Deaf plaintiff going after the State of Florida because the State of Florida’s live streaming did not have closed captioning. In particular, the Florida Senate and the Florida House have websites providing live streaming of proceedings as well as archived footage of past proceedings. Those videos show the legislature receiving information, statements from the public, debating, negotiating, and voting on a host of issues. In 2017, letters were sent to the Florida Senate and to the Florida House requesting captioning for those videos. The Florida House and the Florida Senate never responded to the letters. As usual the blog entry is divided into categories and they are court’s reasoning and takeaways. The reader is free to focus on any or all of the categories.

 

I

Court’s Reasoning

 

  1. Forcible waiver of sovereign immunity by Congress comes down to two questions. First, does the legislation contain an explicit waiver of 11th amendment immunity. Second, if the legislation does contain such a waiver, is that legislation congruent and proportional between the injury to be prevented or remedied and the means adapted to that end.
  2. In a footnote, the court noted that the United States Supreme Court held in United States v. Georgia that if a constitutional violation is involved in addition to a title II violation, then Congress’s forcible waiver of the 11th amendment sovereign immunity is automatically valid. If only a title II violation is involved and not a constitutional violation, then the analysis gets more complicated.
  3. Figuring out whether Congress’s waiver of sovereign immunity is congruent and proportional involves asking: 1) what right or rights Congress sought to enforce when it enacted the ADA; 2) was there a history of unconstitutional discrimination to support Congress’s determination that such legislation was necessary; and 3) was title II an appropriate response to the history and pattern of unequal treatment. It
  4. Congress enacted title II of the ADA in order to enforce the 14th amendment’s prohibition on irrational disability discrimination and on a variety of other basic constitutional guarantees. The former is subject to rational basis review and the latter is subject to a higher level review.
  5. The right claimed by the plaintiff is the right to participate in the democratic process, which is a foundational right as any other.
  6. Without access to information about the legislative actions of their representative, deaf citizen cannot adequately petition the government for redress of grievances because they cannot get the information necessary to hold the elected officials accountable for legislative acts.
  7. Being unable to get information about legislative actions of representatives is exactly the type of participation in the political process going to the very core the political system embodied in the Constitution. To say no fundamental right is at issue denies the underpinnings of our Democratic Republic.
  8. What plaintiff is seeking here is to access information about legislative proceedings that Florida already discloses to hearing members of the public. While hearing members of the public can comprehend such information and engage with their elected representatives on the basis of that information, deaf and hard of hearing Floridian cannot do so.
  9. Florida also loses even if a fundamental right is not involved because previously the 11th Circuit has held (the case found for a forcible waiver of sovereign immunity with respect to places of higher education), that a forcible waiver of sovereign immunity applies where the right is vital to the future success of our society. That is, denying access to legislative streaming to deaf individuals and hard of hearing individuals affects their future ability to exercise and participate in the most basic rights and responsibilities of citizenship, such as voting and participation in public programs and services.
  10. It is simply implausible that Congress could validly abrogate sovereign immunity to protect the rights of students with disabilities to get an education but could not do the same with respect to students participating in the democratic process.
  11. One of the reasons the 11th Circuit found for forcible waiver of sovereign immunity with respect to places of higher education was that education empowered people with disabilities with the ability to participate in the democratic process. Defendants offered no plausible reason as to why that particular case, found here, was wrongly decided or that its reasoning should not apply.
  12. The Supreme Court has previously recognized that a documented pattern of unequal treatment in the administration of services, programs, and activities, including voting existed. That statement from the Supreme Court is sufficient to find a history of unconstitutional discrimination for purposes of a forcible waiver of sovereign immunity.
  13. Title II of the ADA is a congruent and proportional response to the right being alleged because title II only requires reasonable modifications to program, services, and activities with respect to discrimination based upon disability. It also allows for defenses, such as undue burden and fundamental alteration.
  14. Adding captioning to legislative videos already provided to the public removes a complete barrier to that information for a subset of citizens with a remedy that can be accomplished with limited cost and effort. Accordingly, that remedy is both proportionate and a reasonable modification of the service already provided and does not change the nature of the service whatsoever. If for some reason the costs or effort wind up being unduly burdensome, the State of Florida has those affirmative defenses available to it under title II of the ADA.
  15. When Congress enacted title II, it was confronted with evidence that deaf people often cannot access governmental meetings either because of a lack of interpreters or other necessary accessibility features.
  16. Plaintiffs get to be able to seek declaratory and prospective injunctive relief against state officials in their official capacity for their ongoing violation of title II because they are seeking an injunction based upon violations of the ADA.
  17. In a footnote, the court noted that the plaintiff were seeking equal access to information for which hearing individuals already have. They further noted in that same footnote, that the purpose of the ADA was to place persons with disabilities on an equal footing and not to give them an unfair advantage. Here, plaintiffs are merely seeking equal footing with the rest of the hearing public. So, even if the Florida House and the Florida Senate would choose to remove the links altogether, they still must comply with title II of the ADA by captioning the videos so long as they provide links to those videos. To hold otherwise, would allow Florida to avoid compliance with the ADA and undermine the integrity of the statutory scheme.
  18. District Court did not abuse its discretion in allowing further discovery to find out whether the State of Florida was receiving federal funds and therefore, subject to the Rehabilitation Act. In the 11th Circuit, receipt of federal funds waives sovereign immunity under the Rehabilitation Act.
  19. The 11th Circuit generally requires a plaintiff to have an opportunity to conduct jurisdictional discovery prior to dismissal of a Rehabilitation Act claim, which is exactly what the trial court did here.
  20. A concurring opinion by Judge Tjoflat agreed with the forcible waiver of sovereign immunity and with the ability to pursue injunctive relief against state officials in their official capacities. However, he wanted more explanation from the trial court before deciding whether to affirm the Rehabilitation Act discovery ruling.

 

Thoughts/Takeaways

 

  1. Whenever it comes to sovereign immunity, it ultimately comes down to the question of what equal protection class persons with disabilities fall in. The problem of course, is that persons with disabilities vary their equal protection class depending upon the factual situation. I know of no other group that works this way. For example, in employment, per this case, people with disabilities are in the rational basis class. When it comes to accessing the courts, per Lane, people with disabilities are in the intermediate or perhaps even higher class.
  2. In the 11th circuit, when it comes to accessing places of higher education, people with disabilities get a forcible waiver of sovereign immunity even though a fundamental right is not at stake. Check your jurisdiction on this point as it very conceivably could vary from place to place.
  3. The ability of deaf and hard of hearing individuals to access legislative proceedings in real time just like hearing individuals do is a fundamental right, and if not a fundamental right, a right vital to the future success of our society.
  4. If you are a governmental entity live streaming your activities, under this decision the nonfederal governmental entity is subjecting themselves to damages and to claims of injunctive relief. So, if you are a nonfederal governmental entity in Alabama, Florida, or Georgia, you definitely want to get moving on making sure your streaming of legislative activities is captioned for the deaf and hard of hearing. Same goes for any deaf or hard of hearing individual physically attending legislative sessions. Remember, municipalities never get sovereign immunity as they are not an arm of the State.
  5. As I have written since 2000, including in the very first edition of my book Understanding the ADA, the ADA isn’t about unfair advantage. Rather, it is about getting people with disabilities to the same starting line as those without the disabilities, which is exactly what captioning for the deaf and hard of hearing communities does.
  6. In the 11th circuit anyway, discovery over whether federal funds is attached to the operations of a nonfederal governmental entity is in order before a Rehabilitation Act claim can get dismissed.
  7. What is listed in Tennessee v. Lane as examples of historical discrimination against persons with disabilities is conclusive by itself. If the right alleged is not listed there, proof of historical discrimination becomes much more involved.

The idea for today’s blog entry comes to me from Richard Hunt. I recently saw an article talking about Internet accessibility that was full of errors. I sent it along to Richard. I originally wondered if we shouldn’t send a letter to the person who wrote it detailing all the errors. However, we decided that it just wouldn’t be worth our time. Richard gave me the idea that it might make for an interesting blog on common misperceptions of Internet accessibility compliance. I thought that was a great idea. Also, my friend and colleague, Robin Shea, frequently does quizzes on labor and employment issues. I always enjoy taking them. With all that in mind, here goes.

 

I

The Quiz

 

  1. The ADA requires all electronic and information technology to be accessible to persons with disabilities. True/false
  2. DOJ has regulations dealing with Internet accessibility. True/false
  3. DOJ is still working on Internet accessibility regulations. True/false
  4. If for some reason DOJ is not working on Internet accessibility regulations, the business gets a pass since it has no clue how to comply with the ADA. True/false
  5. WCAG 2.1 is binding on any Internet site. True/false
  6. The ADA applies to all businesses operating for public benefit. True/false
  7. For an Internet site to be ADA compliant, the site must allow a person with a disability to browse the site effectively. True/false
  8. The denial of cert. in Robles v. Domino’s really changed the lay of the land for Internet accessibility litigation. True/false
  9. Full compliance with WCAG 2.1 is ADA compliance. True/false
  10. If a website works for a screen reader, it will work for voice dictation users and vice a versa. True/false
  11. Membership organization do not have to worry about accessibility of their website to nonmembers. True/false
  12. Since it’s unclear how to comply with the ADA with respect to Internet sites, a business does not have to worry about complying.

 

II

 

Answers and Explanations

 

  1. False. The ADA, as we already know, breaks down into several different titles with each having different rules. Title I applies to employers of 15 or more. Title II applies to nonfederal governmental entity regardless of size. Title III applies to places of public accommodations as set forth in 42 U.S.C. §12181(7). So, the answer is theoretically an overstatement and is false. It is considerably more complicated than that. As a matter of preventive law, you certainly want to aim for this.
  2. False. Under the Obama administration, regulations were proposed. However, those regulations quite literally disappeared under the Trump administration.
  3. False. DOJ despite congressional pressure from members of both parties, DOJ has put the regulations on inactive status.
  4. False. This question goes to what we call the primary jurisdiction doctrine. As we have discussed before, such as here, most courts are rejecting this. This doctrine says that before an entity has to do something, there should be regulations first. In general, the courts are not buying this argument.
  5. False. WCAG is a voluntary set of guidelines. Under the Obama administration, DOJ was using it with respect to settling Internet site accessibility cases. Today, you do see private parties using WCAG 2.1 as the basis for settling Internet accessibility cases. That said, this is a completely voluntary standard even though as a practical matter it would be fair to say that WCAG 2.1 is the gold standard. Even so, that is quite a bit different than saying that WCAG 2.1 is binding on anyone.
  6. False. The ADA applies to all places of public accommodations as set forth in 42 U.S.C. 12181(7). That is a quite different animal than saying the ADA applies to all businesses operating for public benefit.
  7. False. The legal standard is meaningful accessibility. Of course, we don’t really know what that means.
  8. False. Despite the media coverage of this case, which we discussed here, it didn’t change anything. The game changer is the South Dakota v. Wayfair decision from the United States Supreme Court, which we discussed here. People may not realize the importance of this decision because the decision on its face had nothing to do with the ADA. However, it does not take a rocket scientist so to speak to see just how critical that decision is for Internet accessibility litigation.
  9. False. WCAG 2.1 AA may be the gold standard but the legal standard is meaningful accessibility. It is entirely possible you could be complying with WCAG 2.1 AA and still run into a user that does not have meaningful access to the site.
  10. False. In general, if an Internet site works for a screen reader, it will work for voice dictation users as well but not always. So, be sure to get your site tested for both screen readers and voice dictation users. Also, don’t forget about the deaf and hard of hearing with respect to any videos. Finally, keep in mind you might have an individual who uses more than one of the technologies at the same time. For example, a hard of hearing individual who uses voice dictation technology.
  11. True, such as we discussed here. However, all it takes is for a membership organization to be faced with a plaintiff that could be a member of that organization who cannot meaningfully access their Internet site to torpedo this defense.
  12. False. This is the due process defense. The courts are not buying it. That is, you still have to comply with the ADA, it is just that you have the flexibility for figuring out how since there are no regulations on point. So, due process doesn’t work.

 

III

How Did You Do (In Honor of the Upcoming Baseball Season).

 

11-12: Major Leaguer

9-10: AAA ball player

7-8: AA ball player

6 and below: Single A ball player

Today’s case is a twofer. That is, we are going to talk about two different cases, both dealing with the interactive process and essential functions of the job. The first case is an unpublished decision from the 11th Circuit, Kassa v. Synovus Financial Corporation, decided February 3, 2020. The second case is Seward v. Roy City decided by the United States District Court for the District of Utah on January 22, 2020. As usual, the blog entry is divided into categories and they are: Kassa facts; Kassa court’s reasoning; Seward facts; Seward court’s reasoning; and thoughts/takeaways on both cases. Of course, the reader is free to concentrate on any or all of the categories.

 

I

Kassa Facts

 

Plaintiff began working for the defendant as a lead network support analyst in the network operations center during night and weekend shifts. He has bipolar disorder and also suffers from intermittent explosive disorder. Accordingly, he told his supervisor about his disorders and that he would sometimes get angry or upset. He also told his supervisor that he was able to control his anger if he took his medicine and could take short breaks. The supervisor granted his request to take a short break when he got frustrated so long as his area was covered and he could be reached if necessary. That system worked fine. However, in 2016, defendant restructured and his department was outsourced to a third party vendor. Since plaintiff had quite a bit of technical expertise, the defendant wanted to retain plaintiff’s services and transferred him to the automated teller machine team. That team was responsible for handling customer service calls about issues with automatic teller machines. Once plaintiff learned that his position would involve answering customer service calls from both technical and non-technical personnel, he spoke to his senior director and to a human resources manager about his concern that he might lose his temper while talking to someone on the phone as he had a condition where he couldn’t always control what he said. Accordingly, it was not a good idea to have him answering phones. Plaintiff asked the senior supervisor if he could take customer service calls only from technicians, work nights, work from home, or could take a short break when he was having an episode. None of those requests were granted. Of course, plaintiff did indeed have episodes and in July 2017, his employment was terminated after plaintiff made another rude and unprofessional comment during customer service call. After filing with the EEOC, plaintiff sued the defendant alleging failure to provide a reasonable accommodation and for retaliation.

 

II

Kassa Court’s Reasoning

 

  1. To establish a prima facie case of discrimination under the ADA, plaintiff must show he is: 1) disabled; 2) a qualified individual; and 3) that he was subject to unlawful discrimination because of his disability.
  2. The essential functions of the position are the fundamental job duties of the position an individual with a disability is actually required to perform. The court then proceeds to list out all the EEOC factors and EEOC situations going into deciding whether a job function is essential.
  3. The District Court got it right when it came to deciding that situations answering customer service calls was an essential function of plaintiff’s job on the ATM team. There really wasn’t any dispute on that point from either the plaintiff or the defendant.
  4. An accommodation is reasonable only if it enables the employee to perform the essential functions of the job.
  5. The employee has the burden of identifying accommodations and demonstrating that it is reasonable.
  6. Plaintiff brought forth enough evidence to establish his request to take short breaks was a reasonable one. After all, he did precisely that in the job he was in prior to being transferred. Also, plaintiff’s supervisor for his original job testified that he generally permitted his customer service employee to take breaks when they got frustrated.
  7. Plaintiff testified that when he transferred to the new team the accommodations simply stopped.
  8. An employer’s failure to provide a reasonable accommodation is itself a violation of the ADA.
  9. With respect to accommodation requests of not having to answer all calls, working from home, and working at night, those requests were not reasonable in light of the facts put forward by the defendant.
  10. A retaliation claim cannot duplicate a failure to accommodate claim.
  11. So, the 11th Circuit vacated the District Court’s summary judgment on plaintiff’s failure to accommodate discrimination claim with respect to his request to take short breaks and remanded for further proceedings. They affirmed summary judgment on the remaining failure to accommodate claims as well as the retaliation claim.

 

III

Seward Facts (taken directly from opinion)

 

Seward worked for the Roy City Police Department from April 2001 until May 2015. During his time with the police department, he concurrently served with the United States Air Force Reserve. As a part of his duties with the Air Force Reserve, he was deployed to Afghanistan from February 21, 2014 until October 31, 2014. While in Afghanistan, he sustained an injury to both of his knees.

Upon Seward’s return from Afghanistan, he engaged in full active duty with Roy City until the condition of his knees worsened, mandating knee surgery in March of 2015. Seward took thirty days of unpaid leave to recover, and then was placed on light duty with Roy City. On April 15, 2015, Seward submitted a letter from his surgeon, Dr. Thomas, requesting an extension of light duty for an additional four weeks. Roy City granted the extension of light duty. The letter stated that Dr. Thomas anticipated Seward returning to “Full Duty in 4 weeks as police officer.”

In May, acting Roy City Police Chief Calcut asked Seward for an update as to when Seward could return to full active duty. On May 11, 2015, Seward submitted a second physician’s note recommending three additional months of light duty. The second note also stated there would be a “Follow up with doctor in: 4 wk(s).” After reviewing the letter, Calcut informed Seward that he was “good to go.” Seward understood from this statement that Calcut had approved his request for an extension of his light duty assignment. On May 27, Seward submitted a third doctor’s note stating that he was able to carry a firearm and drive a police vehicle and that he should follow up with his physician “as needed.”

On May 29, 2015, Roy City asked Seward to meet with human resources to fill out Family and Medical Leave Act (FMLA) paperwork. During that meeting, the city told Seward to call Dr. Foot to schedule a physical within the next two weeks. Seward was informed that he must pass a fit-for-duty examination in that time period in order to return to his job as a police officer. He was then sent home on unpaid leave.

Seward believed that he could not pass a physical within the allotted time period and did not call Dr. Foot. Instead, he submitted a retirement letter on June 12, 2015. Seward then sued Roy City, asserting three causes of action: (1) disability discrimination in violation of the ADA, (2) disability discrimination in violation of the Rehab Act, and (3) failure to engage in the interactive process or make a reasonable accommodation in violation of the ADA. Roy City moved for summary judgment on all three claims. Seward stated that he intended to abandon his first two claims but argued that summary judgment was not appropriate for his third claim.

IV

Seward Court’s Reasoning

  1. An available claim under the ADA is the employer failed to engage in an interactive process to accommodate a person’s disability.
  2. Federal regulations implementing title I of the ADA envision an interactive process requiring participation by both parties.
  3. The interactive process begins when an employee provides notice of a request for an accommodation.
  4. One notice is given, both parties have the obligation to proceed in a reasonably interactive manner to determine whether reasonable accommodations can be granted.
  5. A plaintiff bringing a failure to accommodate claim must show: 1) that he or she is a qualified individual with a disability; 2) that the employer was aware of the disability; and 3) that the employer failed to reasonably accommodate the disability.
  6. In a footnote, the court noted that the 10th Circuit has granted a petition for an en banc rehearing to review whether an adverse employment action is a requisite element for failure to accommodate claims under the ADA. Since that has not been decided yet, the court followed existing precedent, which we discussed here, that an adverse employment action is required.
  7. A temporary reprieve from an essential function, such as a leave of absence or light duty assignment, for treatment of recovery from an injury can be a reasonable accommodation providing certain circumstances are met: 1) the employee provides an estimated date when he or she can resume his or her essential duties; and 2) the request for leave or modified duties must assure the employer than an employee can perform the essential functions of his or her position in the near future.
  8. The letter furnished by the plaintiff from his surgeon recommended that the plaintiff be limited to light duty work for a period of three months. Accordingly, the clear implication of that letter is that the light duty restriction would be lifted at the end of the three month period. So, that letter necessarily provides a projected date for the defendant as to when the plaintiff could resume his essential work duties.
  9. A failure to engage in the interactive process is a failure to make reasonable accommodations.
  10. Interactive process includes good-faith communication between the employer and the employee. A lack of good faith can be demonstrated by the party obstructing or delaying the interactive process or by the party failing to communicate with respect to starting or responding to the interactive process.
  11. While requesting an update on medical information from an employee is reasonable, giving the employee an ultimatum is not. Here, plaintiff produced evidence the defendant gave him an ultimatum where he either had to pass a fitness for duty test within two weeks or be terminated. An all or nothing ultimatums from an employer ending the opportunity for any possibility of reasonable accommodation is not the flexible and informal process mandated by the ADA.
  12. The 10th Circuit liberally views what an adverse employment action is. In the 10th Circuit, it is more than just monetary losses. The United States Supreme Court has held that a jury can reasonably conclude that a suspension without pay is an adverse employment action. Here, plaintiff presented evidence that he was placed on unpaid leave and then given the ultimatum. Accordingly, that suffices for an adverse action.

V

Thoughts/Takeaways on Both Cases

  1. I am still seeing a lot of confusion about the prima facie case for discrimination under title I of the ADA. That is, I still see too many courts talking about the standard of causation being, “because of his disability.” That isn’t the standard. The statute, 42 U.S.C. §12112, specifically says the standard is, “on the basis of.” Further, we have talked about cases, such as here, strongly implying if not holding, that the standard outside of the retaliation context is not because of (whether that be “but for,” or sole cause).
  2. You most certainly can look at all the factors EEOC lays out plus the additional situations they mention to determine what are the essential functions of a particular job. Keeping it simple, look to what is fundamental to carrying out those job duties. Don’t forget that the standard is whether a person can carry out those essential job duties with or without reasonable accommodations.
  3. Not unusual to see cases saying that the employee had the burden of identifying accommodation and demonstrating that the accommodation is reasonable. That becomes a particular issue when it comes to reassignment as a reasonable accommodation, which we have discussed here.
  4. If it ain’t broke, why fix it? I can’t tell you how many times I see a new supervisor with a system already working blow the whole thing up. That is only a recipe for litigation. If an accommodation is working, keep letting it work.
  5. “An employer’s failure to provide a reasonable accommodation is itself a violation of the ADA.” This statement from Kassa raises the question of whether the 11th Circuit would require an adverse action for failure to accommodate claims. The 10th Circuit is quite liberal as to what an adverse action is and may even soon get rid of the requirement altogether in failure to accommodate cases.
  6. Failure to accommodate claims are fine, but a retaliation claim has to be distinct from the failure to accommodate claim.
  7. With respect to what the interactive process should look like, this blog entry addresses that question.
  8. Magic words are not required to start the interactive process.
  9. Will definitely be following what the 10th Circuit does in Exby-Stolley. It will not surprise me at all to see a Circuit Court split develop on this question of whether failure to accommodate claims require an adverse action.
  10. Courts outside of the Seventh Circuit are tending to be flexible with respect to extended leave as a reasonable accommodation. The general trend is extended leave is okay where the employee can provide an estimated date in the near future for his return. In the District Court of Utah, three months was reasonable. Again, jurisdictions are going to vary on how to deal with extended leave beyond the FMLA leave.
  11. An ultimatum can be construed as blowing up the interactive process.
  12. An employer is not required to create light-duty positions if they don’t already have one.
  13. Don’t forget, as we discussed here, that reassignment can be a reasonable accommodation.
  14. The 11th Circuit said in Kassa the following: “an accommodation is reasonable only if it enables a person with a disability to perform the essential functions of the job.” Note, what the court is not saying. It is not saying that the accommodation must be related to the essential functions of the job. Rather, it is saying that the accommodation must enable a person to perform the essential functions of the job. That language is Exhibit 1 for any plaintiff lawyer saying that a bona fide service dog is always a reasonable accommodation because without it a person will not be enabled to perform the essential functions of the job. So, as a matter of preventive law, allow bona fide service dogs for your employees assuming proper documentation.
  15. Most of the cases I am now seeing are using the term, “disabled.” I still prefer people first language myself.

peacock

Too big, So, no.

Yes

 

Not common household animal; must show, “substantial burden.” So, who knows.

Animal, Attractive, Beautiful, Boy

Yes as this is a gerbil (Photo by Jared Belson, https://pestpush.com ).

Turtles, Reptile, Tortoise Shell, Animal

Yes

Last week, I had the privilege of attending and speaking at the Accessibility Professionals Association conference in Round Rock, Texas. I learned a lot at the convention and met a lot of wonderful people. From all reports, my presentations (defending against the serial plaintiff in architectural barrier cases and the wild west of Internet accessibility litigation), went well. While there, I had the opportunity to meet Cindy Smiley, an attorney in Austin and a fellow member of the Texas animal law section. I appreciate her journeying out to Round Rock to meet me. We discussed the proposed regulation from DOT dealing with service animals on planes, which I blogged on last week. I do want to thank Cindy for sending me the circular that is the subject of this blog entry, which I received the same day I arrived in Texas. While in Texas, I was able to get my Texas barbecue fix. If you like barbecue, there is nothing like eating barbecue in Texas. Since I was away and unable to blog, my colleague, Richard Hunt, got a blog up on HUD circular on animals in housing right away. In his first paragraph, he says:

 

“Over the course of 19 poorly written and poorly organized pages HUD provides one crumb of help for housing providers faced with bogus requests for emotional support animals. The bulk of the “Guidance” is a confused repetition of various earlier HUD positions that defy common sense and the law.”

 

I will say that I completely agree with him that the circular is 19 poorly written and poorly organized pages. I also agree with him that the guidance is a confused repetition of various earlier HUD positions. Finally, I wonder, but perhaps for different reasons than Richard, if the new circular is really an improvement or just make things worse. That is, there is a saying if it aint broke don’t fix it. I am afraid that the new circular fixed something that didn’t really need fixing or alternatively, broke even further something already broken.

Today’s blog entry is divided into the categories of: what does the circular say; what does the guidance on documenting an individual’s need for assistance animals and housing say; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

What Does the Circular Say

 

  1. The circular replaces prior circulars.
  2. The circular does not address §504 or the ADA.
  3. The three types of animals are: 1) service animals; 2) assistance animals; and 3) support animals. If an animal is not one of these three, then it is a pet.
  4. The circular applies to any housing provider, i.e. any person or entity engaging in conduct covered by the Fair Housing Act. Housing refers to all housing covered by the Fair Housing Act including: apartments; condominiums; cooperatives; single-family homes; nursing homes; assisted living facilities; group homes; domestic violence shelters; emergency shelters; homeless shelters; dormitories; and other types of housing covered by the Fair Housing Act.
  5. Almost 60% of all Fair Housing Act complaints involve those seeking reasonable accommodations for assistance animals and those complaints are increasing.
  6. As an initial matter, housing providers should follow the DOJ approach for assessing whether an animal is a service animal under the ADA.
  7. A service animal is defined the same way as found in the Department of Justice title II and title III regulations, which we discussed here.
  8. In figuring out whether an animal is a service animal, the first question you ask yourself is whether the animal is a dog. If it is, then you have to ask yourself whether it is readily apparent that the dog is trained to do work or perform tasks for the benefit of an individual with a disability. If the answer to the second question is yes, then you have a service animal.
  9. The circular says that it is readily apparent that the dog is a service animal in the following situations: guiding an individual who is blind or has low vision; pulling a wheelchair; providing assistance with the ability or balance to an individual with an observable mobility disability.
  10. If it is not readily apparent that the animal is a service animal, then “it is advisable for the housing provider to limit its inquiries to the following two questions: 1) is the animal required because of a disability?; and 2) what work or tasks has the animal been trained to perform? You cannot ask about the nature or extent of the person’s disability. Also, you cannot ask for documentation. If the answer to question 1 is yes and the tenant identifies a work or task, then the animal qualifies as a service animal if the requested accommodation is otherwise reasonable. If the answer to either question is no or none, then the animal is not a service animal but might be a support animal or other type of assistance animal needing accommodations under the Fair Housing Act and this circular.
  11. The housing provider can, if it wants to, can require the tenant to attest to the truth and accuracy of information provided during the reasonable accommodation process under a lease or similar housing agreement.
  12. Performing work or task means the dog is trained to take a specific action when needed to assist the person with the disability. So, if the individual identifies at least one action the dog does that is helpful to the disability other than emotional support, then the dog is a service animal and must be permitted in housing including the public and common areas. In that eventuality, housing providers do not get to make further inquiries.
  13. Magic words are not required but persons with disabilities are encouraged to use them in order to avoid miscommunication. Also, the request for reasonable accommodation with respect to an assistance animal may be oral or written. It also can be made by others on behalf of the individual, including a person legally residing in the unit with the requesting individual or legal guardian or authorized representative.
  14. An accommodation may be requested after housing provider seeks to terminate the resident’s lease or tenancy because of the animal’s presence, although such timing may create an inference against good faith on the part of the person asking for the reasonable accommodation. Even so, under the Fair Housing Act, an accommodation request can be made at any time.
  15. If the disability is not observable, the housing provider may request information regarding both the disability and the disability -related need for the animal. The housing provider is not entitled to know the individual’s diagnosis. That information provided by the tenant must reasonably support the tenant’s assertion that he or she has a disability. The tenant must be given a reasonable opportunity to provide information that reasonably supports his or her request.
  16. A separate document called “guidance on documenting an individual’s need for assistance animals in housing,” is attached to the circular. HUD believes that document helps ensure that the housing provider receives the disability related information necessary to make the reasonable accommodation decision.
  17. Information about a disability may come from a variety of sources, including: 1) a disability determination from a federal, state, or local governmental agency; 2) receipt of SSDI, SSI, or disability benefits or services from another federal, state, or local agency; 3) eligibility for housing assistance or housing voucher received because of disability; or 4) information confirming disability from a healthcare professional, such as a physician, optometrist, psychiatrist, psychologist, physician’s assistant, nurse practitioner, or nurse. HUD notes that a person could have a disability and not qualify for purposes of a benefit or other program.
  18. As to what just about always is a disability, the circular adopts the approach in the DOJ’s title II and title III regulations. That is, certain disabilities will virtually in all cases meet the definition of a disability. Those disabilities include: deafness; blindness; intellectual disability; partially or completely missing limbs or mobility impairments requiring the use of a wheelchair; autism; cancer; cerebral palsy; diabetes; epilepsy; muscular dystrophy; multiple sclerosis; HIV; major depressive disorder; bipolar disorder; posttraumatic stress disorder; traumatic brain injury; obsessive-compulsive disorder; and schizophrenia.
  19. Where an individual voluntarily provides more details about the disability than the housing provider actually needs in order to make a decision, the housing provider should consider it.
  20. Documentation from the Internet is not by itself sufficiently reliable to establish an individual has a non-observable disability or a disability related need for an assistance animal.
  21. That said, documentation provided over the Internet from a licensed healthcare professional is kosher if the healthcare professional can confirm the person’s disability and need for an animal and also has personal knowledge of the individual.
  22. Reasonably supporting information is defined as often coming from a licensed healthcare professional (examples include, physician, optometrist, psychiatrist, psychologist, physician’s assistant, nurse practitioner, or nurse), that is general to the person with a disability’s condition but specific to the individual and the assistance or therapeutic emotional support provided by the animal.
  23. The documentation must provide a relationship or connection between the disability and the need for the assistance animal, especially where the disability is non-observable or where the animal provides therapeutic emotional support.
  24. For non-observable disabilities and animals providing therapeutic emotional support, the housing provider can get information consistent with the, “guidance on documenting an individual’s need for assistance animals and housing.”
  25. As for what animals can be allowed if they are not a service animal, it must be an animal commonly found in households. If it is not an animal commonly kept in households, then the animal does not have to be allowed except in very rare circumstances.
  26. Animals commonly kept in households include the following: dogs; cats; small birds; rabbits; hamsters; gerbils; other rodents; fishes; turtles; or other small domesticated animals traditionally kept in the home for pleasure rather than for commercial purposes. Barnyard animals, monkeys, kangaroos, and other non-domesticated animals are not considered common household animals.
  27. If the animal is not a common household animal, “then the requester has the substantial burden of demonstrating a disability-related therapeutic need for the specific animal or the specific type of animal.” (The quoted language is taken verbatim from the circular).
  28. A best practice is for the housing provider to make a determination within 10 days of receiving any documentation.
  29. With respect to unique animals, allowing for the unique animal may be necessary where: 1) the animal is individually trained to do work or perform tasks that cannot be performed by a dog; 2) information from a healthcare professional confirmed that allergies prevent the person from using a dog, or without the animal, the symptoms or effects of the person’s disability will be significantly increased; or 3) the individual seeks to keep the animal outdoors at a house with a fenced yard where the animal can be appropriately maintained.
  30. Trained capuchin monkeys are one type of a unique type of support animal.
  31. If the assistance animal poses a direct threat that cannot be eliminated or reduced to an acceptable level, that animal can be refused by the housing provider.
  32. Reasonable accommodations can include modifying land use and zoning laws, homeowners association rules, or co-op rules.
  33. A housing provider cannot charge a fee for processing a reasonable accommodation request.
  34. Pet rules are not applicable to service animals and support animals.
  35. Service animals and support animals are subject to conduct rules.
  36. Housing providers cannot charge a deposit, fee, or surcharge for an assistance animal but can charge the tenant for damages and assistance animal causes if that is the provider’s usual practice to charge for damage caused by tenants.
  37. Veterinary care and controlling of the assistance animal are the person’s with the disability responsibility.
  38. The interactive process is always a good idea.
  39. A housing provider cannot insist on specific types of evidence if the information provided or known to the housing provider meet the requirements of the circular. Also, disclosure of details about the diagnosis or severity of the disability or medical records or medical examination cannot be required.

 

II

What Does the Guidance on Documenting an Individual’s Need for Assistance Animals and Housing Say

 

  1. Housing providers may not require a healthcare professional to use a specific form to provide notarized statements, to make statements under penalty of perjury, or to provide an individual’s diagnosis or other detailed information about a person’s physical and mental impairments.
  2. The guidance on documenting an individual’s need for assistance animals and housing does not have the force and effect of law and is not meant to bind the public in any way.
  3. Healthcare professionals need personal knowledge of their patient or client when issuing supporting documentation.
  4. Information relating to an individual’s disability and health condition must be kept confidential and cannot be shared with other persons unless the information it needed for evaluating whether to grant or deny a reasonable accommodation request or where disclosure is required by law.
  5. General information that should be included in supporting documentation includes: 1) the patient’s name; 2) whether the healthcare professional has a professional relationship with the patient or client involving the provision of healthcare or disability -related services; and 3) the type of animal for which the reasonable accommodation is sought.
  6. Addiction caused by current illegal use of a controlled substance does not qualify as a disability. We discussed what is a current user here.
  7. Specific information that should be included in supporting documentation includes: 1) whether the patient has a physical or mental impairment; 2) whether the patient’s impairment substantially limits a major life activity or major bodily function; and 3) whether the patient needs the animal either because it performs works or tasks for the person with the disability or because it provides therapeutic emotional support to alleviate a symptom or effect of the disability and is not merely a pet.
  8. If it is a unique animal being requested as a reasonable accommodation, then the following information would be helpful for persons with disabilities to ask for and for housing providers to receive: 1) the date of the last consultation with the patient; 2) any unique circumstances justifying the patient’s need for the particular animal; and 3) whether the healthcare professional has reliable information about the specific animal or whether they specifically recommend that type of animal.
  9. The healthcare professional should sign and date any documentation.

 

III

Thoughts/Takeaways

 

  1. The circular and the accompanying guidance are a big mess. You basically have to be a lawyer to figure it out. Even for me with years and years of experience as an attorney dealing with the rights of persons with disabilities, understanding the circular and the accompanying guidance is difficult to put it mildly.
  2. There is a saying if it aint broke, don’t fix it. Another saying is, don’t make a bad situation worse. I am afraid that both of those sayings can be argued here. The prior system may or may not have been broken but gave you general guidance and then you could use common sense. This circular and the accompanying guidance are so specific and at times incomprehensible as to make things considerably worse.
  3. The circular and the guidance as a matter of law may be completely meaningless per Kisor v. Wilkie, which we discussed here. Keep in mind, HUD has no regulations on animals and the Fair Housing Act doesn’t have any statutory provisions talking about it either.
  4. As we have seen with the Department of Transportation, here, there is a trend for agencies adopting the DOJ definition of what is a service animal as contained in the DOJ title II and title III regulations. Many States are also taking the DOJ regulations and codifying them into their statute. The problem here is that HUD still wants to allow animals in housing that are not service animals. A very strong policy argument can be made for that position. However, that makes the reasonable accommodation process much more complicated than in other contexts, such as on airplanes or when it comes to accessing non-federal governmental entities or places of public accommodation.
  5. Unlike the Department of Justice and the Department of Transportation, HUD makes it clear that if it is not readily apparent the animal is a service animal only two questions can be asked. The Department of Transportation and DOJ both focus on two inquiries where the two questions represent the two lines of inquiries. As such, if a housing provider asks more than the two questions when it is not readily apparent that the animal is a service animal, they have violated the circular.
  6. How much fraud will be prevented by the truth and accuracy attestation is very much an open question.
  7. People in the disability rights community are going to have a problem with the section of the circular that allows for anyone to request the animal as a reasonable accommodation for the person with the disability. To maintain maximum independence of the person with a disability, such a request should be made by the person with the disability him or herself. If that individual is not able to make such a request, then it makes sense for the legal guardian or authorized representative to do so. Of course, if the individual is a minor, then the parents have a perfect right to ask.
  8. HUD specifically gives permission for tenant to ask for an animal as a reasonable accommodation after being served with an eviction notice.
  9. On the one hand, HUD said that the Internet documentation system is replete with fraud. On the other hand, nothing wrong with using the Internet documentation system if it is coming from healthcare professionals familiar with the patient. I don’t see how this distinction helps prevent fraud or really makes the old problem any better.
  10. HUD gives all kinds of guidance on what reasonably supporting information is but by doing so, they put everything in a box and makes the whole thing unnecessarily rigid.
  11. With respect to animals not commonly allowed in households, HUD says in the circular that the person with the disability has the “substantial burden,” of convincing the housing provider to allow the animal. Trained capuchin monkeys are per se allowable. What is a “substantial burden,” is anybody’s guess.
  12. A housing provider should turn around the reasonable accommodation request within 10 days as a matter of best practice.
  13. Circular doesn’t say what a, “direct threat” is. As a matter of preventive law, following the ADA regulations on direct threat makes a lot of sense.
  14. The housing provider has to keep information related to the individual’s disability confidential.
  15. HUD gives examples of what readily apparent means, but I would limit myself to just those situations. Use common sense when appropriate.
  16. The whole document reads as if only one animal is always involved, which is unfortunate because that will not always be the case.
  17. Interactive process is a title I of the ADA construct, but it has wide applicability across the disability rights universe.
  18. Miniature horses are not dogs and not common household animals either. So, miniature horses would be subject to the unique animal requirements of the circular.

Finally, it is important to note the organization of the circular because it gets really confusing. The first part of the circular is a two-page document discussing the circular’s purpose, applicability, and organization. The second part of the circular is an overview of it. The third part of the circular is divided into several sections. Part I deals with service animals. Part II deals with reasonable accommodation requests for assistance animals OTHER (all caps mine), than service animals. Part III deals with the criteria for assessing whether to grant the requested accommodation of an assistance animal or an emotional support animal. Part IV deals with the type of animal that can be an assistance animal or emotional support animal. Part V deals with general considerations. With respect to a service animal, the only parts that apply are part I and part V. The other thing that is confusing is that the circular uses assistance animal in a couple of different ways. It can mean the broad category of an animal that is acting as a service dog but is not a dog. It can also mean an emotional support animal. However, it could just mean an animal that is acting as a service animal but is not a dog. The reason it is important to keep all these parts in mind is that the parts have different rules from each other (for example, what can be asked by way of documentation is different from section to section), and don’t apply across the board.

117Airplane

peacock
On a plane? If it ever was…Not anymore.
On a plane? Yes, if I trained him for use outside the house.

120

Miniature horse
yes to non-federal governmental entities; yes to places of public accommodations; but not on planes.

As you know, I typically do not blog more than once a week. However, I have a good reason for doing so this week. Next week, I am going to be in Austin (Round Rock actually) attending and speaking at the Accessibility Professionals Association conference. Immediately following that or perhaps the week after, I very well may be in Houston testifying as an expert witness. So, I have a little bit of time this morning. Also, on Wednesday, the Department of Transportation came out with proposed regulations on service animals, here121. Since I have written about the issue of animals on planes numerous times before (such as here122, here123, and here124), I feel compelled to blog on it. As usual, blog entry is divided into categories and they are: 1) why DOT felt compelled to issue regulations; 2) just what are the proposed regulations and what are they seeking further comments on; and 3) thoughts/takeaways. The reader is free to focus on any or all of the categories.

 

I

Why The Regulations?

 

  1. Service animal related complaints are increasingly a significant portion of disability related complaints that the department’s aviation consumer protection division and airlines receive.
  2. Concerns have been raised by airlines, airports, and disability advocates about inconsistency between the definition of a service animal when it comes to U.S. carriers and foreign air carrier services.
  3. The current rules are inconsistent with DOJ’s ADA rules. That could lead to some strange situations. For example, a restaurant on an airport concourse justifiably refusing an animal but that animal having the right to fly on the plane.
  4. The current rules are inconsistent with respect to the kinds of animals that can be allowed on the plane when compared to DOJ rules for example. Right now, a variety of animals are permitted on the plane and that results in airlines expending considerable amount of time when it comes to unusual or untrained animals.
  5. Passengers wishing to travel with pets may be falsely claiming that their pets are service animals in order to avoid paying the fee charged by most airlines. Airlines have reported increases in the number of service animals on aircraft and have expressed concern that the increase is due in part to passengers falsely claiming that their pets are emotional support animals.
  6. According to airlines, passengers are increasingly bringing untrained service animals on board aircraft thereby putting the safety of crew members, other passengers, and other service animals at risk.
  7. Some believe that emotional support animals pose a greater safety risk because they have not been trained to mitigate a disability and have not received adequate behavioral training.
  8. Current regulations are confusing. For example, service animals for those with physical disability get different treatment than service animal for those with psychiatric disabilities.
  9. The Federal Aviation Administration Reauthorization Act of 2018, which we discussed here125, mandated that the Department of Transportation conduct rulemaking proceeding to sort out this service animal/emotional support animal confusion.
  10. An Access Advisory committee was formed by DOT to consider a whole bunch of issues but could not reach agreement.
  11. A previous notice of proposed rulemaking was published and many comments were received, and so, the process has been moving along.
  12. The current set up creates a market inefficiency, which requires carriers to forgo a potential revenue source.

 

II

 

The Proposed Regulations and What Further Comments Are Needed

 

  1. The proposed regulations will define a service animal as a dog that is individually trained to do work or perform tasks for the benefit of a qualified individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. This definition pretty much tracks the DOJ final implementing regulations under title II and title III of the ADA (which we have discussed many times, such as here126), found at 28 C.F.R. §§104127, 36.104128. A passenger can have up to two service animals. While a passenger could travel with two service animals, that does not give the passenger additional space for those service animals. That is, the airline must allow that individual to use all of his or her allotted space for both service animals without encroaching into the space of another passenger.
  2. Emotional support animals, comfort animals, companionship animals, and service animals in training are not service animals because they are not trained to do work or perform a task for the benefit of an individual with a disability. Aligning this definition with DOJ’s ADA regulations decreases confusion for individuals with disabilities, airline personnel, and airports. That said, DOT is seeking comments on whether emotional support animals for individuals with disabilities should be regulated separately and distinctly from service animals. DOT is seeking comment on how to deal with the situation where an emotional support animal user with a mental health disability has trained their dog to do work or perform a task to assist them with their disability thereby transforming the animal into a psychiatric service animal. DOT is also seeking comment on whether emotional support animals are more likely to not behave (I can’t imagine that isn’t the case because of their lack of training, but I don’t know that for sure). DOT is also seeking comment on how limiting emotional support animal to dogs and cats might impact individuals with disabilities who rely on other species of animals to accommodate their disability. DOT’s current understanding is that dogs currently represent 90% of service animals transported on aircraft with cats coming in second. So, DOT is looking for information on how people who rely on emotional support animals would be impacted by the rule.
  3. A passenger would be limited to one emotional support animal.
  4. A service animal is limited to a dog for a couple of different reasons. First, dogs are the most common animal species used by individual to mitigate disabilities both on and off aircraft. Second, dogs also have the temperament and ability to do work and perform tasks while behaving appropriately in a public setting and while being surrounded by a large group of people.
  5. Capuchin monkeys and miniature horses are not service animals. Monkeys are out because they may present a safety risk to other passengers as they have the potential to transmit diseases and exhibit unpredictable aggressive behavior. Miniature horses are out due to their size (I did recently read about a miniature horse flying with a person with a disability. If the regulations wind up as they are now, that person will not be able to do so in the future). The department is seeking comment with respect to limiting service animals to dogs.
  6. Dog breed restrictions are out. DOT said as much in their final statement of enforcement priorities regarding service animals. DOT’s policy has been to require airlines to conduct individualized assessment that a particular service animal based upon the animal’s behavior or health rather than applying generalized assumptions about how a breed or type of dog is expected to behave. Under this policy, DOT allows airlines to refuse transportation to dogs exhibiting aggressive behavior and posing a direct threat to the health or safety of others regardless of breed. Also, DOJ rejects outright bans on service animals because of their breed in their final implementing regulations. For example, DOJ has advised municipalities that prohibiting specific breeds of dogs is out when it come to a service animal unless the dog poses a direct threat to the health or safety of others, which is a determination that has to be made on a case-by-case basis.
  7. DOT recognizes that the airplane is a unique environment. Therefore, comment is sought on whether breed restrictions are justified in the airplane context. Also, comment is sought on whether allowing airlines to conduct an individualized assessment of a service animal’s behavior in order to determine whether the service animal poses a direct threat is an adequate measure to ensure aggressive animals are not transported on aircraft.
  8. The proposed rule treats psychiatric service animals the same as other service animal trained to do work or perform tasks. The change not only harmonizes DOT’s regulation with DOJ’s ADA service animal definition, but also eliminates a weak rationale for having a different regulatory requirement for users of psychiatric service animals. That is, DOT believes that justification for treating service animal users with mental or emotional disabilities differently from service animal users with other disabilities is currently lacking.
  9. A service animal will have to fit within the passenger’s foot space on the aircraft or can be placed on the passenger’s lap. While it is absolutely true that many large service animals accompany individuals with disabilities on aircraft, particularly for those individuals with mobility impairments, those animals are often trained to fit in the small spaces. Where an animal is too large to fit in the passenger’s foot space or placed on the passenger’s lap, DOT proposes to require airlines to seat the passenger traveling with the service animal next to an empty seat within the same class of service if such a seat is available. If no empty seats are available to allow a passenger to travel with the service animal in the cabin or the passenger’s scheduled flight, DOT proposes to require airlines to provide passengers the option to transport the animal in the cargo hold for free or to transport the passenger on a later flight with more room if available. DOT is seeking comment on this.
  10. Service animals will have to be harnessed, leashed, or tethered unless the device interferes with the service animal’s work or the passenger’s disability prevents use of those devices. In that case, the carrier has to permit the passenger to use voice, signal, or other effective means to maintain control of the service animal. Such a requirement is essentially the same as to what is found in DOJ’s final implementing regulations at 28 C.F.R. §§136129(d), 36.302130(c)(4).
  11. Under the proposed rule, an airline can decide that an animal is not a service animal if it is not under the control of its handler. That is a bit different from DOJ’s approach, which says the service animal may still be a service animal that can be excluded if it is out of control or the animal’s handler does not take effective action to control it.
  12. DOT’s air transportation service animal behavior and attestation form, which airlines may require passengers with disabilities seeking to travel with the service animal on aircraft, includes a statement that the passenger understands the animal must be harnessed, leashed, or tethered unless the passenger is unable because of a disability to do so.
  13. A handler is defined as a qualified individual with a disability who receives assistance from a service animal doing work or performing tasks directly related to the individual’s disability, or a safety assistant, as described in 14 C.F.R. §382.29131(b), who accompanies an individual with the disability traveling with a service animal. The service animal handler has the responsibility for keeping the service animal under control at all times and for caring and supervising the service animal, including toileting and feeding. A service animal trainer traveling with a trained service animal not serving as a safety assistant for passenger with a disability, and other passengers traveling with an individual with a disability on aircraft, will not be considered service animal handlers under the proposed rule. The department seeks comment on its decision to define service animal handler in this way. It also seeks comment on what impact, if any, it’s exclusion of third parties as service animal handlers might have on individuals with disability traveling on aircraft with the service animal. The DOT is also seeking comment on the proposed regulations regarding the animal must be under the control of the handler either via restraint device or by voice. It also seeks comment on whether in cabin pet carrier consistent with FAA regulation should be included in the rule as an optional service animal restraint device if the final rule recognizes emotional support animals.
  14. With respect to documentation that the animal is a service animal, the proposed rule does the following: 1) require individuals traveling with a service animal to provide to the airlines standardized documentation of the service animal’s behavior, training, and health; 2) if the service animal will be on a flight segment longer than eight hours, DOT proposes to allow a standard form attesting that the animal would not need to relieve itself or can relieve itself in a way that does not create a health or sanitation risk; 3) the forms are the only documentation that an airline will be able to use and require of a passenger traveling with a service animal. The airline does not have to ask a passenger with traveling with the service animal for any documentation, but if they do, the airlines have to use the forms established by DOT. DOT is seeking comment on whether airline should be allowed to create their own forms or if uniformity is more helpful.
  15. They DOT air transportation service animal behavior and training and attestation form is completed by the passenger and provides assurance that the service animal traveling on the aircraft has been individually trained to do work or perform tasks for the benefit of the passenger with a disability. It also provides assurance that the animal has been trained to behave properly in public, and that the user is aware that the service animal must be under his or her control at all times. DOT believes that the form serves as a deterrent for individuals who might otherwise seek to claim falsely that their pets are service animals as an individual is less likely to falsify a federal form. The DOT is seeking comment on ways to reduce any burden on individuals with disabilities traveling with service animals and is seeking comment on a variety of concerns, including: 1) what ways are out there to reduce the burden that the DOT’s behavior and training form would have on passengers with disabilities; 2) should airlines be allowed to require the form each time a service animal user travels, even for round-trip flights; 3) what medium should airlines use (hardcopy, electronic, email), to provide and collect the form passengers with disability; 4) are there privacy concerns airlines should consider; 5) do the questions in the form help airlines determine whether an animal has been adequately and properly trained; 6) does the form adequately educate passengers on how a service animal is expected behave, the consequences of misbehaving, and the seriousness of falsifying the DOT form; 7) should the airline be allowed to require only emotional support animal user to complete such a form if the department were to continue to require airlines to transport emotional support animals; and 8) does the general content and layout of the form makes sense.
  16. The actual service animal behavior and training attestation form contains the following certifications: 1) the animal has been trained to do work or perform tasks to assist the individual with his or her disability and has been trained to behave well in a public setting without aggression towards humans or other animals; 2) the animal will be under the control of the handler either via restraint device or by voice commands; 3) the airline has the right to treat the animal as a pet if the animal engages in disruptive behavior that show that it had not been successfully trained to behave properly in a public setting; 4) the airline has the right to charge for the cost to repair any damage caused by the service animal so long as the airline charges passengers without disability for the same kind of damage; and 5) it is fraud to knowingly make a false statement to secure disability accommodations provided under DOT regulations.
  17. DOT also proposes to allow airlines to require passengers to submit to the airline a DOT service animal health form completed by the passenger’s veterinarian. The form, which is to be completed by the veterinarian, describes the animal, indicates whether the service animal’s rabies vaccination are up-to-date and whether the animal has any known diseases or infestation, and states whether the veterinarian is aware of any aggressive behavior by the animal. The form will be valid for one year from the date of issuance. DOT seeks comment on whether one year is too long or too short for the vaccination form to be valid and the reasons for any such belief. The form is modeled after a number of State certificate of veterinary inspection forms and the United States Department of Agriculture APHIS 7001 form. DOT seeks comment on a proposal to allow airline to require that passengers provide the vaccination form as evidence that the service animal has received a rabies vaccine and that the animal is not exhibited aggressive behavior known to the veterinarian. It also seeks comment on whether the airline can refuse transportation to a service animal based upon information contained in that form, such as where the veterinarian discloses on the form that the animal has a history of aggressive behavior or has caused serious injury to a person or animal). DOT also seeks comment on whether the form would be effective in ensuring that the traveling public would not contract rabies from a service animal should they be bitten. DOT also seeks comment on the burden such a form imposes upon passengers traveling with disabilities. DOT also seeks comment on whether the animal health form should be limited to emotional support animal user in the event DOT decided to continue to require airlines to transport emotional support animals.
  18. The current rule allows airlines to insist on documentation that the animal will not need to relieve itself or can relieve itself in a way not creating a health or sanitation issue when going on a flight of longer than eight hours. The proposed rule would only allow the airlines to request a DOT service animal relief attestation form and nothing else. That particular form just certifies that the animal will not need to relieve itself on the flight or that the animal can relieve itself in a way that does not create a health or sanitation issue on the flight. It also has a box saying that the handler is responsible for the cost to repair any damage caused by the animal so long as the airline charges passengers without disabilities for similar kinds of damage.
  19. The proposed rule would prohibit airlines from requiring passengers to provide the DOT health, behavior and training and relief forms prior to the passenger’s date of travel and is seeking comment on that. The DOT is also seeking comment on whether using standardized DOT forms is the best way for airlines to collect data from passengers traveling with service dogs. Since aircraft are unique, DOT believes that a proposal allowing airline to require all service dog users to provide the DOT standardized form to assist airlines in determining whether a service dog poses a direct threat to the health or safety of others makes sense.
  20. The proposed rule, as mentioned above, prohibits airlines from requiring individual traveling with the service animal to provide the DOT issued forms in advance of the passenger’s flight because advance notice may present significant challenges to passengers with disabilities wishing to make last-minute travel plans that may be necessary for worker family emergencies. Airlines can require users of the service animal to check in at the airport one hour before the check-in time at the airport for the general public to process service animal documentation so long at the airline similarly requires advanced check-in for passengers traveling with pets in the cabin.
  21. DOT proposed rule requires airline to make an employee training to handle disability related matters available in person at the airline’s designated airport location to process service animal documentation promptly.
  22. The DOT seeks comments on a proposal to require airlines to try to accommodate passengers failing to meet the one hour check-in requirement so long at the airline can do so by making reasonable efforts without delaying the flight.
  23. The proposed rule would make the species requirement the same for both U.S. carriers and foreign carriers.
  24. Proposed §382.74 does something different than what the current regulations do. That is, it matches up with the two inquiry paradigm of the DOJ’s title II and title III regulations. That is, it says that airline can only make two inquiries to determine whether an animal qualifies as a service animal. The two questions are: 1) is the animal required to accompanying the passenger because of a disability; and 2) what work or tasks has the animal has been trained to perform. You cannot ask about the nature or extent of a person’s disability or ask that the service animal demonstrate its work or tasks.
  25. Proposed rule §382.75(e) requires that an airline’s website must make the DOT forms mandated by the proposed rule available to passengers in an accessible format.
  26. Proposed rule §382.79(c) that with respect to making a determination to deny transport to a service animal on the basis that the animal has misbehaved and/or has caused a significant disruption in the cabin must be based upon an individualized assessment based upon a reasonable judgment relying on the best available and objective evidence to ascertain the probability that the misbehavior and/or disruption will continue to occur. Further, whether reasonable modifications in policies, practices, or procedure will mitigate the misbehavior and/or the disruption must also be considered.
  27. Proposed rule §382.79(e) says if an airline is going to deny transport to the service animal, the airline must issue a written statement for the reason for the refusal. That statement has to include the specific basis for the airline’s opinion that the refusal meet the standards for denying transport. Further, that written statement must be provided to the individual with the disability accompanied by the service animal either at the airport or within 10 calendar days of the refusal of transportation.
  28. Proposed §382.80 prohibits carriers from imposing additional restrictions on the transport of service animals beyond what is specified in the proposed regulations.

 

III

 

Thoughts/Takeaways

 

  1. Current regulations implementing the Air Carrier Access Act are a mess. It’s amazing the system works at all. So, the proposed regulation brings needed clarity to the situation.
  2. I do not have a dog in the fight. That is, I am not currently representing or consulting with anybody or any organization with respect to these proposed rules.
  3. The proposed regulation gets rid of the arbitrary and unsupportable, even by DOT’s own admission, distinction between service animal for physical disabilities v. psychiatric disabilities.
  4. The proposed regulations eliminate the issue currently seen in the Tampa airport where Tampa airport said that emotional support animals unless they were crated or on a leash, etc., were not allowed in the airport. Such a decision was consistent with title II of the ADA’s final implementing regulations. Now that service animal under the DOT regulations matches for all practical purposes the regulations under title II and title III of the ADA, this would no longer be an issue.
  5. DOT is asking for lots of comments on many issues. The proposed reg was published on 2/5. So, that means comments due in by April 5 or possibly 6 (you have to check to see if a Sunday for a due date affects anything). So, these regulations could very well change.
  6. Emotional support animals are out. How many people will be truly affected by this decision is an open question. I would certainly like to know that, and DOT would like to know that too as they are seeking comment on that question.
  7. While DOT is seeking comments on breed restrictions, I don’t think you will see DOT back down on that. That means Delta Airlines will have to end its restriction on pitbulls.
  8. Direct threat determination very closely resembles Chevron v. Echazabal, which we discussed here132. It brings needed clarity to the area to what was previously very confusing.
  9. If an animal is not under the control of the handler, then it isn’t a service dog. This is a theoretical distinction but not necessarily a practical distinction from the ADA’s title II and title III DOJ regulations.
  10. It isn’t clear to me how a person training an animal to be a service animal gets treated under the proposed rule. Airline travel is part of the training for service dogs.
  11. The documentation approach seems balanced and simplifies things greatly. It will be interesting to see what happens during the commenting period.
  12. Is a veterinarian really qualified to attest to a dog’s aggressive tendencies? Why would a person with a disability even submit a form from the veterinarian saying that the dog has been aggressive? What if the dog got aggressive because it was doing his or her job and a human element acted stupid?
  13. Airlines can’t require the DOT standardized forms in advance.
  14. DOT uses the two inquiries term found in the DOJ regulations but not in the DOJ’s frequently asked questions document. This leads to the real question of whether narrowly focused follow-up questions are in order if insufficient information is given to the two questions. Arguably, the answer is yes so long as the follow-up questions fall within those two inquiries. Also, interesting to note that nothing in this section of the proposed regulation, unlike the DOJ regulations, says that the work or task performed by the animal must be related to the handler’s disability, though other sections of the proposed regulation do make that clear.
  15. The regulations are exclusive. That is, airline can not add additional restrictions beyond the regulation. That means, for example, Delta’s ban on pit bulls, which I believe is still in place, will have to end.
  16. DOJ says it is seeking comments on how to deal with a person with a mental health issue who has trained his or her emotional support animal to do work or perform a task to assist them with the disability. I find this whole thing strange for two reasons. First, the emotional support animal at that point is a service animal and not an emotional support animal because it is engaged in recognition and response and has been trained to do so. Second, anybody can train a dog to be a service animal. So, I am not sure why commenting on this question is even needed. So, what DOT does in response to comments on this question will be interesting to see.
  17. No doubt training will be needed. Be sure to use a knowledgeable trainer. That trainer needs to know both the applicable Air Carrier Access Act regulations as well as the ADA regulations pertaining to service dogs. That person also needs to recognize the similarities and differences between the two.
  18. What will happen to people who falsify the forms? Is the system geared up for that? Does putting such people into the criminal justice system even makes sense?
  19. This blog has been a deep dive, but it is not legal advice. There is no substitution for knowledgeable Air Carrier Access Act counsel.

I am not sure about blog entry times for the next couple of weeks. Next week, I will be attending and speaking at the Accessibility Professionals Association conference in Round Rock, Texas. Sometime within the next two weeks, I will be testifying as an expert witness in a trial in Houston. So, not sure when or if blog entries will be posted over the next two weeks.

 

Turning to today’s blog entry, the case of Babb v. Wilkie was recently argued before the United States Supreme Court. The legal blogosphere lit up when Justice Roberts as part of oral argument asked about whether “okay boomer,” was evidence of age discrimination. Even before this argument, back in November of 2019, my colleague Robin Shea had discussed here whether “okay boomer,” was something that was okay within the workplace. When she wrote that blog entry, I back channeled with her with respect to not being a boomer even though I was born in late 1960. I have always preferred myself to be thought of as a bridge to Generation X or as a Gen X and not as a boomer. Robin simply wouldn’t back down. She finally pacified me by saying that putting all boomers together in one category is a mistake. Rather, it makes sense to classify boomers depending upon the TV shows that had a profound influence at the time. So, Robin said she had previously written that early boomers can be classified as Howdy Doody boomers, middle boomers can be classified as Flintstone boomers, and late boomers can be classified as Scooby Doo boomers. I think she may be onto something. I absolutely adored Scooby Doo. I also watched the Flintstones but definitely preferred Scooby Doo over the Flintstones. All that said, I’m still not sure I am not right to think of myself as a bridge to Generation X (I have my friend and legal marketing guru Jeremy Persin), to thank for that or just as Generation X. After all, my markers include but are not limited to: walk on the moon; Nixon’s resignation; and Reagan’s election in 1980. None of those are boomer markers. Finally, I have a 15-year-old daughter, and she and I have had this conversation 😊So, sign me as Scooby Doo boomer, bridge Gen X or early Gen X but NOT boomer.

 

Turning to the oral argument in Babb v. Wilkie, we get the following:

 

  1. Everybody agrees that with respect to reinstatement and backpay, “but for” causation is the standard. The question is what is the standard for injunctive relief and under what laws. The agreement between the parties on this question was actually pointed out by Justice Kavanaugh. In response to his question, the attorney responded that a different law might be involved with respect to injunctive relief and other prospective relief, i.e. the civil service protections. It turns out that Justice Kavanaugh may have been onto something because the Supreme Court has now asked for additional briefing on what other laws not containing but for causation might be applicable to the case.
  2. Justice Breyer very clearly is of the opinion that motivating factor is in play with respect to injunctive and other prospective relief. Justice Breyer was able to get the attorney for the plaintiff to basically admit that what the plaintiff was really after was the ability to use motivating factor when it comes to injunctive and prospective relief.
  3. Justice Kagan, Justice Ginsburg, and Justice Sotomayor also seem to be very much on board with Justice Breyer’s motivating factor view.
  4. Justice Roberts by raising okay boomer was raising it as an attempt to discuss and flesh out any motivating factor applicability.
  5. Justice Alito kept referring to a cake batter that has some egg in it when it was supposed to have no eggs in it as an attempt to discuss any factor causation. He did say that, “he had a terrible time getting the solicitor’s argument into the statutory language.” He also wondered about the practicalities of a situation where but for causation was required for reinstatement and backpay but not required for injunctive and other prospective relief. The plaintiff attorney responded to that by saying that injunctive and prospective relief are oftentimes extremely critical in employment discrimination cases.
  6. Justice Sotomayor had no problem with a bifurcated approach.
  7. Justice Thomas was silent but he did write Gross, which said that ADEA in the private sector was but for causation. Also, if you have not read the Enigma of Clarence Thomas yet and are interested in Justice Thomas’s judicial philosophy, I would strongly encourage you to do so. Gross and that book would suggest that Justice Thomas would likely find but for causation across the board.
  8. Justice Gorsuch implicitly wondered out loud whether Gross was decided correctly in the first place.
  9. The public sector ADEA statutory language is very interesting as it says that a person, “shall be free from any discrimination based on age.” So, a lot of argument ensued over whether shall be free from any discrimination modified the rest of that statutory section so as to allow for motivating factor. Interesting, that “on the basis,” did not get a lot of play in the oral argument as to whether that language by itself justified motivating factor.
  10. How does this all relate to the ADA? 1) both statutes use, “on the basis” language (the ADA uses it in title I and in title III); 2) only the public sector ADEA statute uses “shall be free from any discrimination…,” language. That is, you do not find any such language like that in the causation sections of title I, title II, or title III of the ADA (42 U.S.C. §§12112, 12132, and 12182); and 3) as we have discussed here and here, open question as to what “on the basis,” means with respect to whether motivating factor is in play under the ADA.
  11. It doesn’t surprise me at all that the Supreme Court asked for additional briefing on whether other non-but for causation laws applied in light of how the oral argument went. How that briefing affects the final vote total is anybody’s guess.
  12. I have absolutely no idea as to how this case is going to go when it comes to the final decision. Depending upon how that decision is written, there could be significant implications with respect to causation under the ADA, especially titles I and title III.