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

 

I

Access Living v. Uber Technologies, Inc. Update

 

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

 

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

 

II

Thoughts/Takeaways

 

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

 

III

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

 

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

 

IV

Second Circuit’s Reasoning/Insurance Coverage

 

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

 

V

Second Circuit’s Reasoning Certification

 

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

 

VI

Thoughts/Takeaways regarding Brooklyn Center

 

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

Braille, Barrier-Free, Black, Symbol

 

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

 

I

Facts

 

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

 

II

 

Court’s Reasoning General/Standing

 

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

III

 

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

 

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

 

IV

 

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

 

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

 

IV

 

Thoughts/takeaways

 

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

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

 

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

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

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

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

 

My thoughts:

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

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

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

My thoughts:

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

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

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

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

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

My thoughts:

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

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

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

My thoughts:

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

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

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

My thoughts:

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

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

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

My thoughts:

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

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

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

My thoughts:

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

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

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

My thoughts:

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

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

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

My thoughts:

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

G. Return to Work

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

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

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

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

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

My thoughts:

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

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

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

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

My thoughts:

 

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

 

Other thoughts:

 

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

 

Stay safe y’all.

Today’s blog entry is a topic that I have never discussed before. Since December 2011, my records show that I have put up 408 blog entries. In not one of them, have I discussed today’s entry. Today’s entry discusses the doctrine of after-acquired evidence and how it works with title I and logically, to a lesser extent, title II as well. As usual the blog entry is divided into categories and they are: just what is the after-acquired evidence doctrine; Anthony introduction/facts; court’s reasoning; and thoughts/takeaways. Of course, the reader is free to concentrate on any or all of the categories.

 

I

Just What Is the After-Acquired Evidence Doctrine

 

The after-acquired evidence doctrine comes from the case of McKennon v. Nashville Banner Publishing Company, 513 U.S. 352 (1995), a unanimous decision by Justice Kennedy. That case involved ADEA. In that case, the employer terminated an employee because of her age. There was absolutely no dispute about that. After termination and during discovery, the employer found out that the employee had engaged in misconduct that would have justified her termination in any event. In particular, she copied certain files and kept them for herself in order to protect herself later. The case goes all the way to the United States Supreme Court and the Court holds that after-acquired evidence can be used but it only affects remedies not liability. With respect to remedies where after-acquired evidence justifies a termination, reinstatement and front pay are out. Also, when it comes to backpay, backpay is calculated from the date of the unlawful discharge to the date the new information was discovered. The judge also has a lot of discretion with respect to remedies in such cases as well. In short, with respect to ADEA after-acquired evidence goes to remedies and not to liability.

 

II

Anthony Introduction/Facts

 

Our case of the day is Anthony v. Trax international Corporation, a published decision from the Ninth Circuit decided on April 17, 2020. This case asked the question of whether after-acquired evidence works the same way with respect to title I of the ADA matters. There are two critical facts that need to be mentioned before proceeding further. First, plaintiff was fired because she never gave her employer a full return to work release. Second, the particular job that the plaintiff had was a technical writer. That position required per her employer’s contract with the government that any technical writer must have a bachelor’s degree. Plaintiff represented on her employment application that she had such a degree when in fact she did not. Finally, the party cross moved for summary judgment.

 

II

Court’s Reasoning

 

  1. Unlike the ADEA, the ADA in title I only protects people with disabilities who are both qualified and who are a person with a disability. Under title I of the ADA’s final implementing regulations at 29 C.F.R. §1630.2(m), which has been adopted uniformly throughout the courts, a person with a disability is qualified if he or she satisfies the requisite skill, experience, and education requirements of the position and can, with or without reasonable accommodation, perform the essential functions of the job. Accordingly, to be protected under the ADA a person with a disability must be a person with a disability And also be qualified. So, since qualified and being a person with a disability are two independent prerequisites for protection under the ADA, after-acquired evidence showing that the individual was not qualified knocks them out from any ADA recovery whatsoever.
  2. An employer’s ignorance cannot create a credential where there is none.
  3. Whether a person is qualified is a question decided at the time of the adverse employment action.
  4. The parade of horrible’s argument from this decision simply doesn’t work. Currently, employers sued for discrimination already have to hunt for such disqualifiers because after-acquired evidence can be used to limit damages. Also, employers are unlikely to purposefully expose themselves to significant liability on the off chance they might discover some after missing qualification during the already costly discovery process. Finally, employers cannot invent new requirements to avoid liability because the employer must actually require the missing qualification at the time of the allegedly discriminatory action.
  5. Accepting plaintiff’s argument would extend coverage to those who do not meet a job’s prerequisites, including those who successfully deceived their employer as to their qualification. That outcome would be at odds with Congress’s expressed decision to limit the ADA’s protection to qualified individuals.
  6. The EEOC filed an amicus brief in the case. If they disagree with this reasoning, they are free to reconsider its own implementing regulations and interpretive guidance elaborating upon the statutory definition of qualified individual.
  7. Plaintiff’s claim that the employer failed to engage in the interactive process fails for the same reason because plaintiff was not qualified per 29 C.F.R. §1630.2(m). That is, the obligation to engage in the interactive process only applies to a person with a disability who is qualified.

 

III

Thoughts/Takeaways

 

  1. The reasoning in this case appears to me to be very solid. I don’t see how an appeal to the Supreme Court would be successful given the Ninth Circuit’s reasoning and the Supreme Court’s current configuration.
  2. Title I of the ADA is not the only place you find the term qualified. You also find it in title II of the ADA at 42 U.S.C. §12132 and in DOJ’s final implementing regulations for title II of the ADA at 28 C.F.R. §35.104. That particular provision states that a person with a disability is qualified if he or she can, with or without reasonable modification to rules, policies, or practices; the removal of architectural, communication, or transportation barrier; or the provision of auxiliary aids and services, meet the essential eligibility requirements for receiving services or participating in programs or activities provided by a public entity. So, if a person seeking services from a nonfederal governmental entity misrepresents their eligibility for that particular program, service, or activity, then there is absolutely no reason why the nonfederal governmental entity cannot use this particular case as a means of saying that they never had to provide the service, program, or activity in the first place because the person was not qualified to begin with. Admittedly, in the title II context this is going to be a much harder lift because essential eligibility requirements are often not an issue with respect to whether they are met. Nevertheless, I can foresee certain governmental programs, services, or activities where this might be an issue.
  3. Title III of the ADA does not have a qualified component to it either in its statutory text  or in its final implementing regulations. As a practical matter, in order to deal with undue burden and fundamental alteration in title III you are applying qualified principles even if they don’t exist. However, the fact remains that qualified does not appear in title III of the ADA nor does it appear in its final implementing regulations. Accordingly, very unclear whether this decision would apply to a title III situation. The question may be very theoretical, but nevertheless it exists. At the moment, I am having trouble coming up with a situation that would mimic our case of the day in the title III context, but that doesn’t mean such a situation doesn’t exist.
  4. The bottom line is that with respect to title I and II matters after-acquired evidence can knock out a plaintiff’s case entirely because both titles statutory text and their final implementing regulations use the term qualified.
  5. From all the cases I have read over the years, I have always found it interesting when I see the statement from the court that the parties cross moved for summary judgment for a couple of reasons. First, plaintiffs very rarely get a summary judgment granted in their favor, though it does happen sometimes. Second, if on the plaintiff side, the object is to get to a jury trial. Cross moving for summary judgment as a practical matter often turns it into a bench decision without the benefit of trial testimony. Also, many courts use summary judgment as a screening out tool to only get the strongest cases to the jury. So, I have always wondered about a plaintiff moving for summary judgment in light of these considerations.
  6. The employer here got off on a technicality so to speak. That said, full return to work is not something an employer should be doing as we discussed here.

On April 9, 2020, the EEOC updated its March 17, 2020, what you should know about Covid-19 and the ADA, Rehabilitation Act, and other EEO laws document. I thought it would be a good idea to list the additions below and then discuss a bit. I’m only focusing on the additions since I covered the other stuff previously here. The categories A-E and the information in those categories are verbatim from the EEOC publication, which can be found here. The very last paragraph in each category contains my thoughts. At the end of §E, I have additional thoughts. Why this paragraph is in bold, I do not know.

A. Disability-Related Inquiries and Medical Exams

A.2.  When screening employees entering the workplace during this time, may an employer only ask employees about the COVID-19 symptoms EEOC has identified as examples, or may it ask about any symptoms identified by public health authorities as associated with COVID-19? (4/9/20)

As public health authorities and doctors learn more about COVID-19, they may expand the list of associated symptoms.  Employers should rely on the CDC, other public health authorities, and reputable medical sources for guidance on emerging symptoms associated with the disease. These sources may guide employers when choosing questions to ask employees to determine whether they would pose a direct threat to health in the workplace. For example, additional symptoms beyond fever or cough may include new loss of smell or taste as well as gastrointestinal problems, such as nausea, diarrhea, and vomiting.

My thoughts: What the EEOC is essentially saying here are a couple of things. First, know the medical science as best as you can. You might even want to consider having on retainer your own infectious disease specialist to give you another set of eyes with respect to what you are seeing from the CDC. Second, any disability related inquiries and medical exams need to be narrowly focused. The EEOC says as much in their technical assistance memorandum at §6.6. An excellent case for understanding how the disability related inquiries and medical exams need to be narrowly focused on the science is Scott v. Napolitano, 717 F. Supp. 2d 1071 (S.D. Cal. 2010).

B. Confidentiality of Medical Information

B.1.  May an employer store in existing medical files information it obtains related to COVID-19, including the results of taking an employee’s temperature or the employee’s self-identification as having this disease, or must the employer create a new medical file system solely for this information? (4/9/20)

The ADA requires that all medical information about a particular employee be stored separately from the employee’s personnel file, thus limiting access to this confidential information.  An employer may store all medical information related to COVID-19 in existing medical files.  This includes an employee’s statement that he has the disease or suspects he has the disease, or the employer’s notes or other documentation from questioning an employee about symptoms.

B.2.  If an employer requires all employees to have a daily temperature check before entering the workplace, may the employer maintain a log of the results? (4/9/20)

Yes.  The employer needs to maintain the confidentiality of this information.

B.3.  May an employer disclose the name of an employee to a public health agency when it learns that the employee has COVID-19? (4/9/20)

Yes.

B.4.  May a temporary staffing agency or a contractor that places an employee in an employer’s workplace notify the employer if it learns the employee has COVID-19? (4/9/20)

Yes.  The staffing agency or contractor may notify the employer and disclose the name of the employee, because the employer may need to determine if this employee had contact with anyone in the workplace.

My thoughts: with Covid-19 being a direct threat, this view of the EEOC seems to be common sense.

C. Hiring and Onboarding

C.5.  May an employer postpone the start date or withdraw a job offer because the individual is 65 years old or pregnant, both of which place them at higher risk from COVID-19? (4/9/20)

No.  The fact that the CDC has identified those who are 65 or older, or pregnant women, as being at greater risk does not justify unilaterally postponing the start date or withdrawing a job offer.  However, an employer may choose to allow telework or to discuss with these individuals if they would like to postpone the start date.

My thoughts: the best preventive law tool for figuring out whether attendance is an essential function of the job is the Samper case, which we discussed here. Also, be aware of ADEA (Age Discrimination in Employment Act), and PNDA (Pregnancy Nondiscrimination Act), here as well

D. Reasonable Accommodation

In discussing accommodation requests, employers and employees may find it helpful to consult the Job Accommodation Network (JAN) website for types of accommodations, www.askjan.org.  JAN’s materials specific to COVID-19 are at https://askjan.org/topics/COVID-19.cfm.

My thoughts: JAN is a great resource for both the employer and the employee.

 

D.1.  If a job may only be performed at the workplace, are there reasonable accommodations for individuals with disabilities absent undue hardship that could offer protection to an employee who, due to a preexisting disability, is at higher risk from COVID-19?  (4/9/20)

There may be reasonable accommodations that could offer protection to an individual whose disability puts him at greater risk from COVID-19 and who therefore requests such actions to eliminate possible exposure.  Even with the constraints imposed by a pandemic, some accommodations may meet an employee’s needs on a temporary basis without causing undue hardship on the employer.

Low-cost solutions achieved with materials already on hand or easily obtained may be effective.  If not already implemented for all employees, accommodations for those who request reduced contact with others due to a disability may include changes to the work environment such as designating one-way aisles; using plexiglass, tables, or other barriers to ensure minimum distances between customers and coworkers whenever feasible per CDC guidance or other accommodations that reduce chances of exposure.

Flexibility by employers and employees is important in determining if some accommodation is possible in the circumstances. Temporary job restructuring of marginal job duties, temporary transfers to a different position, or modifying a work schedule or shift assignment may also permit an individual with a disability to perform safely the essential functions of the job while reducing exposure to others in the workplace or while commuting.

My thoughts: Good stuff from the EEOC. I would be sure if you are on the employer side to put in language that any waiver of essential functions is temporary if you are going to be waving current essential functions of the job. Keep in mind, as the job evolves over time, a new job with its own essential functions may essentially arise. Definitely look for plaintiff lawyers and disability rights activist to claim that there is no reason why the accommodations shouldn’t continue. Many people with disabilities have been trying for years to get certain accommodation that are now being done as a matter of course for everyone. They will not willingly go back to the old system easily.

D.2.  If an employee has a preexisting mental illness or disorder that has been exacerbated by the COVID-19 pandemic, may he now be entitled to a reasonable accommodation (absent undue hardship)? (4/9/20)

Although many people feel significant stress due to the COVID-19 pandemic, employees with certain preexisting mental health conditions, for example, anxiety disorder, obsessive-compulsive disorder, or post-traumatic stress disorder, may have more difficulty handling the disruption to daily life that has accompanied the COVID-19 pandemic.

As with any accommodation request, employers may: ask questions to determine whether the condition is a disability; discuss with the employee how the requested accommodation would assist him and enable him to keep working; explore alternative accommodations that may effectively meet his needs; and request medical documentation if needed.

 

My thoughts: interactive process!!!!!!!!!!!!!!!!!!!!!!!!

 

D.3.  In a workplace where all employees are required to telework during this time, should an employer postpone discussing a request from an employee with a disability for an accommodation that will not be needed until he returns to the workplace when mandatory telework ends? (4/9/20)

Not necessarily.  An employer may give higher priority to discussing requests for reasonable accommodations that are needed while teleworking, but the employer may begin discussing this request now.  The employer may be able to acquire all the information it needs to make a decision.  If a reasonable accommodation is granted, the employer also may be able to make some arrangements for the accommodation in advance.

My thoughts: getting on top of reasonable accommodation/modification request as quickly as possible given the circumstances always make sense and prevents lawsuits later. When engaging in the interactive process, make sure you go about it the right way as we discussed here.

D.4. What if an employee was already receiving a reasonable accommodation prior to the COVID-19 pandemic and now requests an additional or altered accommodation? (4/9/20)

An employee who was already receiving a reasonable accommodation prior to the COVID-19 pandemic may be entitled to an additional or altered accommodation, absent undue hardship.  For example, an employee who is teleworking because of the pandemic may need a different type of accommodation than what he uses in the workplace.  The employer may discuss with the employee whether the same or a different disability is the basis for this new request and why an additional or altered accommodation is needed.

My thoughts: the obligation to reasonably accommodate a qualified person with a disability continues during the pandemic. Also, the specific reasonable accommodations may vary depending upon context. So, this is really good stuff from the EEOC.

E. Pandemic-Related Harassment Due to National Origin, Race, or Other Protected Characteristics

E.1.  What practical tools are available to employers to reduce and address workplace harassment that may arise as a result of the COVID-19 pandemic? (4/9/20)

Employers can help reduce the chance of harassment by explicitly communicating to the workforce that fear of the COVID-19 pandemic should not be misdirected against individuals because of a protected characteristic, including their national origin, race, or other prohibited bases.

Practical anti-harassment tools provided by the EEOC for small businesses can be found here:

  • Anti-harassment policy tipsfor small businesses
  • Select Task Force on the Study of Harassment in the Workplace (includes detailed recommendations and tools to aid in designing effective anti-harassment policies; developing training curricula; implementing complaint, reporting, and investigation procedures; creating an organizational culture in which harassment is not tolerated):
    • report;
    • checklistsfor employers who want to reduce and address harassment in the workplace; and,
    • chart81of risk factors that lead to harassment and appropriate responses.

My thoughts: many courts have held, such as we have discussed here, that hostile work environment applies to persons with disabilities. So, just because everybody is working differently does not mean that the right of a person to be free from a hostile work environment doesn’t continue.

 

My overall thoughts on the amended guidelines:

 

  1. See this blog entry and this blog entry.
  2. Many companies seeing that remote working is not so bad, may move more in that direction. Good policy reasons exist for it. For one thing, I read in the Wall Street Journal not too long ago that employee turnover dramatically increases once they have to commute more than 30 minutes each way. Remote working solves that problem. Also, it takes many cars off the road. For example, I just read in the Wall Street Journal yesterday that the city of Los Angeles pollution problem has gone way down since the lockdown. Of course, there are drawbacks to remote working. It will be up to each employer to figure this out going forward. Nevertheless, people with disabilities are going to remember all the accommodation that employers put in place during this pandemic and will keep that in mind as they go about making future reasonable accommodation requests. Certain professions lend themselves to remote working while others don’t. For example, lawyers easily lend themselves to remote working, especially those who do not litigate. However, the healthcare professions frequently do not. Again, I don’t think you can go wrong with following Samper whenever you are trying to assess whether attendance is an essential function of the job.
  3. What about the situation where a person associates with an individual (let’s say significant other), who has a higher chance of getting Covid-19 and that person requests an accommodation so as to not expose or increase the risk of his or her significant other to getting Covid-19. While it is absolutely true that a person requesting an accommodation because they associate with an individual with a disability is not entitled to that accommodation, it is also true that many courts are saying a denial of such an accommodation or a refusal to even engage in the interactive process is evidence of the mindset of the employer’s intent to discriminate.
  4. Remember, that for a regarded as claim all you need is a perception of the physical or mental impairment. You do not need to show anymore that the employer subjectively perceived a substantial limitation on a major life activity thanks to the amendments to the ADA. An employer does have a little play here because of Covid-19 being a direct threat. However, you can’t forget about regarded as. Engaging in the interactive process solves all kinds of problems. So, interactive process!!!!!!!
  5. If you are making disability related inquiries or doing medical exams, make sure they are narrowly focused on Covid-19 identification and transmission. If you go on a fishing expedition beyond that, trouble will likely ensue per Scott and EEOC’s TAM6.
  6. A person with Covid-19 if they are symptomatic may well be a person with an actual disability depending upon the severity of the symptoms. Also, a person who had Covid-19 may also be a person with a record of a disability, again depending upon the severity of the symptoms. Finally, having Covid-19 may lead to other disabilities. In all cases, you may see request for reasonable accommodations. If so, be sure to engage in the interactive process.
  7. If you are trying to extrapolate this guidance to title II and title III situations, be aware that the technical assistance memorandums for both of those titles also demand that medical exams and disability related inquiries be narrowly focused.

 

Up until about this morning, I had no idea what I was going to blog on this week. I was thinking I was going to blog on a case in my pipeline that is a tour de force with respect to associational discrimination. However, when I started checking my email, I saw in my law 360 alert that the United States Supreme Court came down with Babb v. Wilkie, which can be found here. The issue before the court was whether but for causation applied to federal employees bringing ADEA claims. In an 8-1 decision (Justice Sotomayor joined by Justice Ginsburg concurred -Justice Ginsburg joined the majority opinion with the exception of footnote 3; and Justice Thomas dissented), the United States Supreme Court held that but for causation applied to damages but not with respect to equitable relief. As usual, the blog entry is divided into categories and they are: key points of Justice Alito’s majority opinion; key points of Justice Sotomayor-Ginsberg joining- concurring opinion; key points of Justice Thomas’s dissent; and thoughts/takeaways. The reader is free to focus on any or all of the categories.

 

I

Key Points of Justice Alito’s Majority Opinion

 

  1. A federal employee still has to show but for causation in order to get ADEA damage based remedies.
  2. If more than one cause exists, equitable relief is possible but not damages.
  3. The ADEA as it applies to federal employees has some very unique statutory phrasing. That statutory phrasing means that liability exists if more than one cause is involved.
  4. The term “based on,” is equivalent to but for causation.
  5. Nassar is cited numerous times by all opinion writers.
  6. Of the Justices in the majority, all except Justice Ginsburg agreed with the proposition stated in footnote 3 that the termination decision is the key reference point for assessing liability. In Justice Sotomayor’s concurring opinion, she elaborates on that a bit.
  7. There is nothing unusual about Congress setting up a system where it is easier to hold the federal government liable for certain actions than holding private actors liable for the same actions.
  8. Where Congress includes particular language in one section of a statute but omits it in another section of the same act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.

 

 

II

Key Points of Justice Sotomayor’s with Justice Ginsberg Joining Concurring Opinion

 

  1. Discriminatory process claims are not foreclosed. So, if individuals over 40 are singled out for discriminatory treatment in the hiring process those claims would not be foreclosed if more than one factor was involved in the decision not to hire that individual.
  2. Damages are available where a person incurs costs associated with the discrimination.

 

III

Key Points of Justice Thomas’s Dissent

  1. While the federal version of ADEA has some very unique phrasing, that phrasing is not sufficient to counteract the presumption of but for causation as established in Comcast, which we discussed here.
  2. The Supreme Court decision saying that but for is necessary for damages but not for equitable relief will make a mess of pleadings.

 

IV

 

Thoughts/Takeaways

 

  1. In light of this case, you can expect every single ADA case to litigate causation especially because the majority opinion equates “based on,” with but for causation.
  2. My blog entry, which can be found here, discussing the decision in Comcast is now a must read for anyone litigating ADA cases.
  3. On the plaintiff side, eight justices agreeing with the proposition that “based on,” causation is equivalent to but for causation is problematic with respect to ADA claims. Again, for the counterpoint on how to deal with that read my Comcast blog entry.
  4. Nassar is cited by everyone. That is not necessarily a bad thing for those pursuing mixed motive causation in ADA claims as we discussed in the Comcast blog entry.
  5. The statement from the majority opinion stating that where Congress includes particular language in one section of a statute but omits it in another section of the same act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion has huge implications for cases involving causation with respect to title II of the ADA. As we mentioned in our Comcast blog entry, causation under title II of the ADA is not the same as under §504 the Rehabilitation Act. Also, title II of the ADA causation provision came after the causation provision in the Rehabilitation Act. The statement from the majority opinion can also be used to argue against because of causation with respect to title I as well. Remember from our Comcast blog entry, the amendments to the ADA specifically changed the “because,” causation that appeared in the original ADA to, “on the basis of” causation.
  6. Justice Sotomayor’s concurrence has significant implications with respect to healthcare professionals going after medical licensing boards and physician health programs for ADA violations if but for is found to work similarly with respect to the ADA. She would allow damages for discriminatory processes and for when a person incurs costs associated with the discrimination. With respect to processes, we discussed some of that in this blog entry. With respect to incurring costs, quite frequently PHP’s make healthcare professionals pay the costs associated with processes that quite probably violate the ADA.
  7. I don’t think I agree with Justice Thomas with respect to how the decision makes a mess of pleadings. What it does do is force plaintiffs to plead in the alternative. That is, they will have a section laying out how what happened was but for causation. Then, they will have a separate section laying out how what happened justifies equitable relief.
  8. The bifurcation of damages versus equitable relief is very important both for pleading purposes and for attorney fees. If a plaintiff is successful in getting equitable relief, then they can get attorney fees.
  9. Definitely look for a Circuit Court split involving with respect to causation under the ADA. As mentioned above, particularly if you are on the plaintiff side, my blog entry discussing Comcast is must reading.

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.