Before getting started on the blog entry of the week, I want to congratulate the Washington Nationals on their World Series victory where for the first time, a road team won every single game. Congratulations. I will be very curious to see whether the Washington nationals go to the White House. As everyone knows, a lot of professional sport teams are handling that different ways.

Turning to the blog entry of the week, on October 29, 2019, the Seventh Circuit decided here Shell v. Burlington Northern Santa Fe Railway Company. I have previously blogged on that case here. So, no need to go into the facts of the case. Accordingly, that means our blog entry is going to be divided into the categories of court’s reasoning and takeaways/thoughts. The reader, of course, is free to look at any and all of the categories.

I

Seventh Circuit’s Reasoning Reversing the District Court’s Denial of Summary Judgment

  1. The alleged disability of obesity only works if there is evidence the obesity is caused by an underlying physiological disorder or condition. Plaintiff presented no such evidence to the District Court. For that matter, plaintiff did not present any evidence that the defendant regarded his obesity as having a physiological origin either.
  2. Plaintiff based his claim upon medical conditions the defendant feared he would develop-sleep apnea, diabetes, and heart disease. It is true that those conditions are physical or mental impairments under the ADA. However, plaintiff did not have those impairments at the time he applied to work for the defendant, and the company had no perception to the contrary. That is, the defendant did not believe that plaintiff had any of the feared impairments at the time it refused his application.
  3. The regarded as prong of the ADA, 42 U.S.C. §12102(1)(C), defines disability as being regarded as having a physical or mental impairment. As such, the very text of the statute encompasses only current impairments and not future ones. Regardless of how the grammar is debated, no one would understand the sentence to mean anything other than currently suffering from the disability. That is, “having,” means presently and continuously. It does not include something in the past that has ended or something yet to come.
  4. 42 U.S.C. §12102(3)(A) also mentions an individual is regarded as having a disability when he or she has been subjected to an action because of an actual or perceived physical or mental impairment. If the impairment does not yet exist, it can’t be actual or perceived.
  5. While you can argue over whether the Dictionary Act compels a different conclusion, such reasoning can’t overcome the plain meaning of the ADA’s statutory text.
  6. Other Circuits agree that fear of disability is not a cognizable claim. Those Circuits include: the 8th Circuit; the 11th Circuit; the 9th Circuit; and the 10th Circuit.
  7. The EEOC’s own interpretive guidance says the definition of impairment does not include physical characteristics or predispositions to illness or disease.
  8. The EEOC’s Compliance Manual genetic profiling example is divorced from the text of the ADA as it is in tension with other EEOC interpretive guidance. So, that doesn’t work with respect to persuading the court to differ from the ADA’s unambiguous text.
  9. A valid point exists about how the ADA combats accumulated myths and fears about disability and disease. However, to the extent a stereotype is involved, it is a stereotype about obesity, and obesity is only protected by the ADA if there is an underlying physiological cause. Without that underlying cause, obesity is not a disability the ADA protects.
  10. While Congress does say that the definition of disability must be construed broadly in favor of the individual, that doesn’t give the court license to go beyond the terms of the statute. To do otherwise, would mean encroaching into the legislative branch’s responsibilities.

II

Thoughts/Takeaways

  1. Reviewing my blog entry on the District Court decision reveals some interesting things. First, the District Court said that a question of fact existed with respect to whether the defendant actually believed the plaintiff was suffering from the conditions feared the plaintiff would develop. Second, the Seventh Circuit doesn’t address the District Court’s concern about the defendant being held to a lesser standard simply because it is engaging in adverse employment action before an impairment arises when there was no doubt that the defendant was acting based upon its belief that the plaintiff posed a present safety risk as a result of potential disabilities. Similarly, the District Court said that it was facially illogical and antithetical to the protections afforded by the ADA to argue that the defendant could not discriminate against individuals who actually have a disability but could discriminate against those individuals likely to have a disability but have yet to develop them.
  2. Absolutely true that the vast majority of courts are saying that with respect to obesity there has to be an underlying impairment. I wonder if plaintiff could not borrow from the definition of major life activity in the ADA as amended per 42 U.S.C. §12102(2)(B), and argue that the way the body operates with respect to a person who is obese constitutes a physical impairment vis a vis normal cell growth, brain, neurological, etc.
  3. Obesity is the only physical or mental impairment requiring an additional underlying physiological condition. That is, just about all of the other physical or mental impairments by their very definition have such a condition automatically contained within the diagnosis. So, even under the Seventh Circuit’s decision, would the same conclusion follow if a different disability was involved. For example, would the Seventh Circuit reach the same conclusion as the 11th Circuit with respect to a fear of a contagious disease? What if that individual the employer feared getting a contagious disease already had his or her immune system compromised in some way to begin with?
  4. I do think the Shell District Court’s reasoning is still worthwhile for plaintiff attorneys to use. On the plaintiff’s side, I would definitely allege an underlying physical or mental impairment whenever bringing a fear of future disability claim. I also think the myths, fears, and stereotypes angle is well worth pursuing.
  5. No dissenting opinion in this case. So, not sure if a rehearing en banc will be sought. Regardless, I doubt plaintiff will prevail in the Seventh Circuit even if a rehearing en banc is granted considering the Seventh Circuit’s track record of late with respect to persons with disabilities.
  6. Impossible to say how the United States Supreme Court would deal with a case like this. We currently do not have a Circuit Court split that I am aware of. So, it is entirely possible that United States Supreme Court will wait until such a split develops.
  7. One of the labor and employment law blogs I read regularly is the OhioEmployers Law Blog authored by Jon Hyman. His blog is a very interesting perspective. He is a management side attorney. However, he isn’t afraid of talking about how employers should do the right thing regardless of what the law allows. Sure, there is a moral side to that. However, there is also a monetary side to that as well. With respect to fear of future disability cases, the law is really unclear. Does the employer really want to risk spending $250,000 to prove a point when they can obtain the use of a valuable employee in the meantime? There isn’t a day that goes by where I read articles, in such places as the Wall Street Journal, talking about how employers of all kinds simply can’t find enough employees anymore. Even if the employer takes a risk in hiring such an individual, the ADA does allow for that employer to take certain actions if they become aware of issues. For example, as we discussed here for example, should the employer become aware of issues that are job-related and consistent with business necessity, they can always insist on a medical exam.
  8. Fear of future disability cases ultimately come down to company preference. That is, do they want to go to just where the law allows and make a defense litigation firm happy. Or, do they want to engage in preventive law by going further than the law allows initially, and then using what the law does allow them to do to deal with issues as they come up. I am pretty sure I know what Jon would say, but he can correct me if I’m wrong.

This week the United States Supreme Court will be considering a petition for cert. in the case we discussed here, which deals with the same defendant and the issue of who pays for the medical exam. I will certainly be following what happens with that case. Oftentimes, petitions for cert. get relisted. So, we may not know for a while what the United States Supreme Court elects to do in that case.

As I mentioned last week, I have a whole bunch of cases to blog on my pipeline. It took me quite a bit to decide on what to blog on. Ultimately, I decided to blog on Doe v. Northrop Grumman Systems Corporation, a decision that came down from the United States District Court of the Northern District of Alabama on October 22, 2019. I seriously debated whether I should blog on this at all because my colleague, Robin Shea, in her excellent blog, which is in my blog roll, beat me to it here. Her blog entry is excellent, and I already used it to teach my seventh grade class at Congregation Bet Haverim over the weekend. As everyone knows, just because someone beats me to it, does not necessarily mean I preclude myself from blogging on it. Ultimately, I decided to blog on it for a couple of reasons. First, I do think I have a slightly different perspective to offer to Robin’s excellent blog entry. Second, I felt that as a member of my synagogue, which, as I have mentioned previously, was founded about 25 years ago as the home for the LGBT Jews in the Decatur, Georgia area, I felt a blog was in order for that reason as well. So, here goes. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning; and takeaways/thoughts. The reader is free to concentrate on any or all of the categories.

I

Facts:

Around 2014, plaintiff was diagnosed with gender dysphoria. That led the plaintiff to begin a gender transition by undergoing hormone replacement therapy during March of 2016, while still on active duty with the U.S. Army. One of the reasons, she wanted to work at Northrup was their diversity policy, which specifically stated that the Corporation was committed to retaining and hiring a diverse workforce. Further, they stated they were proud to be an EEO Affirmative Action employer and did not make decisions based on a variety of factors including sex, sexual orientation, and gender identity. Plaintiff’s original supervisor at Northrup had no problem with plaintiff making the transition to another sex and assured the plaintiff everything was in order going forward with respect to her work environment. However, that supervisor was replaced by another person three months later. That person, a Brian Walker, according to the complaint, simply did not see things the same way. In particular: 1) he informed the plaintiff that he would not allow her to deploy to a foreign position because of concern that something might happen to her as a result of her transitioning to another sex; 2) his solution was to deny plaintiff’s request for the opportunity to deploy to a foreign position; 3) he also sought plaintiff’s transfer to a different department; 4) he undertook efforts to hinder plaintiff’s ability to deploy, derail plaintiff’s career and seek plaintiff’s transfer because of plaintiff’s female sexual characteristics and/or plaintiff’s transitional state; 5) once Walker made the decision to essentially end plaintiff’s engineering career, plaintiff contacted the HR department to complain about the supervisor’s discriminatory actions; and 6) a few weeks later, the HR department informed plaintiff that plaintiff would be laid off in two weeks as deployment was a requirement of the job plaintiff was performing. Plaintiff filed a charge of discrimination with the EEOC alleging both violations of the ADA and title VII, and plaintiff was eventually notified of the right to commence suit within 90 days. That suit was filed within the 90 day period.

II

Court’s Reasoning Granting the Motion to Dismiss

  1. Plaintiff’s complaint alleging discrimination because of the perceived stereotypes regarding the female gender and subjecting plaintiff to less favorable working conditions as a result are barely sufficient to meet the Twombly-Iqbal pleading standards. Nevertheless, barely sufficient works, and the title VII hostile work environment claims get to go forward.
  2. The question in this case is whether the plaintiff has a disability at all under the ADA.
  3. 42 U.S.C. §12211(b) specifically says that disability under the ADA does not include, “transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders.”
  4. 42 U.S.C. §12211(b) has not been amended since it was enacted on July 26, 1990. While the statute utilizes the term “gender identity disorders,” that term was replaced in 2013 by the fifth edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders with the term, “gender dysphoria.” Accordingly, “gender identity disorder,” and “gender dysphoria,” are legally synonymous for purposes of ADA coverage.
  5. No clear allegations in the plaintiff’s complaint exists stating plaintiff’s gender dysphoria resulted from a physical impairment.
  6. Doe v. Massachusetts Department of Corrections and Blatt v. Cabela’s Retail Inc, I have blogged on both cases previously, are not persuasive authority for a case arising in Alabama.
  7. Plaintiff in plaintiff’s response to defendant’s motion to dismiss the ADA claim does allege a violation of equal protection clause of the U.S. Constitution. However, the burden is on the plaintiff to disprove every conceivable basis supporting the classification whether or not the basis has a foundation in the record. Plaintiff has not done so in this case.

III

Takeaways/Thoughts

  1. Did I say how much I enjoyed Robin’s blog entry on this case?
  2. How the title VII case ultimately fares will very much depends upon the Supreme Court decision in the transgender case just heard, which we discussed here. It wouldn’t surprise me if the defense petitions the court to put the case into a state of suspended animation pending the Supreme Court decision, which probably won’t come down until June of next year.
  3. When it comes to any kind of disability discrimination case, do not go with notice pleadings. As a result of the way Twombly-Iqbal have been interpreted over the years, the best approach for a plaintiff is to allege enough facts so as to put a reasonable person on notice at to what the problem is. Think of it as a fact-notice based hybrid system.
  4. The roadmap for a violation of the equal protection clause can be found in Doe v. Massachusetts, which we discussed here. Doe also has a discussion about how gender identity disorder and gender dysphoria are not the same thing. An attorney bringing forth a disability discrimination case on behalf of a transgender individual will definitely want to rely on Doe for the proposition that gender identity disorder and gender dysphoria are not the same.
  5. An attorney bringing a claim on behalf of a transgender individual alleging the ADA’s exclusion violates the transgender individual’s equal protection rights will also want to rely on Doe for how it places transgender individuals into the equal protection scheme. Here, it is clear that the Alabama District Court places transgender individuals into the rational basis class when it states that the plaintiff has to knock out every conceivable reason for the exclusion.
  6. Doe arguably placed transgender individuals into a higher equal protection class than rational basis thereby making it unnecessary to knock out every conceivable reason for the exclusion.
  7. Especially in light of the oral argument in the transgender case before the Supreme Court, discussed here, I do expect this case to gain a lot of currency around the United States. So, that means transgender individuals alleging discrimination under the ADA should allege if at all possible, the gender dysphoria results from a physical impairment. Also, a transgender plaintiff will want to allege in the alternative that the plaintiff’s equal protection rights are violated.
  8. As I have mentioned previously numerous times, the 11th Circuit has been very friendly to people with disabilities. However, I have no idea what the 11th Circuit might do with respect to how it would handle the questions: 1) are gender dysphoria and gender identity disorder really the same?; and 2) what equal protection class transgender individuals fall in? Complicating things further, is the oral argument that took place in the Supreme Court on the transgender case. As I mentioned in that blog entry, a big question exist as to whether the transgender individual will be successful and even whether such lack of success will be close. Ultimately, unless the ADA is amended, both of these issues will wind up at the United States Supreme Court.
  9. In some jurisdictions, the plaintiff may have a breach of contract action for the company’s violation of its employee handbook.
  10. I can’t tell you how many times a new supervisor messes up a perfectly working situation. Why fix it if it ain’t broke.
  11. Training, training, training of current supervisors and anybody who is a new supervisor is essential.

Before getting started on our blog entry of the week, good luck to the Houston Astros and the Washington Nationals in the World Series starting tonight. Turning to the blog entry of the week, I really really struggled with what to blog on this week. It wasn’t for lack of cases in my pipeline, I have about a dozen, I just couldn’t figure out what to blog on. Ultimately, I decided on a case my colleague, Richard Hunt, has previously talked about in his blog, which you can find in my blog roll. I decided there was something in that case I wanted to address specifically, and so here goes. The case is Smith v. Golden China of Red Wing, Inc., which can be found here, a decision from the District Court of Minnesota decided on July 22, 2019. 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

Plaintiff is a Minnesota resident suffering from arthrogryposis and uses a wheelchair for mobility. On May 25, 2017, plaintiff along with a paralegal from a law firm drove around testing businesses in the Red Wing area for ADA compliance. He visited Golden China during this trip and noted there were no fully compliant accessible parking spaces. Plaintiff requires fully compliant accessible parking spaces to safely transfer between his car and wheelchair. He did not attempt to exit the vehicle and use the ramp to enter the restaurant building. Rather, he determined based upon his experience, he would not have been able to enter the premises and dine or order on an independent basis and was deterred from attempting what would have been an unsafe and futile act.

As far as being able to return to the restaurant, he did allege he was in the area often and would go to the restaurant if family or friends patronized it. His brother lives in Winona, and he also is in the area when he visits Treasure Island Casino.

Also, it turns out that while the facility predates the ADA, the parking lot had been resurfaced in 2001-2002. In particular, the parking lot was constructed in the 1970s. In 2001 or 2002, the restaurant resurfaced the parking lot. That resurfacing cost about $7000 or $8000 and did not involve regrading the parking lot. The old surface was scratched up to create a better bonding surface, and a new layer was put on top. They also restriped the parking lot every few years when the paint faded away. During the summer they filled potholes in the parking lot.

Plaintiff brought suit with respect to several ADA violation, including: 1) signage indicating accessible space was posted too low to the ground; 2) an insufficient number of accessible parking spaces; 3) insufficient striping for accessible spaces; 4) the accessible space lacked an adjacent access aisle; and 5) the ramp near the reserved parking space had impermissible slopes and landing. The court decided that only one accessible parking space was needed per the applicable standards. Also, Golden China fixed everything except for the ramp having impermissible slopes and landing. So, the court dismissed all of those claims as moot. With respect to the ramp having an impermissible slope and landing, Golden China argued fixing it would put it out of business. Further, it had no obligation to undertake such repairs (it had put out for bid what it would take to repair the slope), because such repairs, which would require $29,000-$39,000 worth of construction, was not readily achievable and would put them out of business.

II

Court’s Reasoning

 

  1. Plaintiff has standing to bring the suit because he has shown an intent to return. In particular, his brother lives in Winona. He also visits the Treasure Island Casino, which is nearby. Both of those allegations sufficiently show a threat of future harm.
  2. Title III of the ADA, 42 U.S.C. §12182(b)(2)(A)(iv)-(v), defines discrimination as a failure to remove architectural barriers in existing facilities where such removal is readily achievable. Further, if removal is not readily achievable, failure to make such goods, services, facilities, privileges, advantages, or accommodations available through alternative methods if such methods are readily achievable is also discrimination.
  3. The resurfacing of the parking lot was an alteration. An alteration is a change to a place of public accommodation or commercial facility that affects or could affect the usability of the building or facility or any part thereof. Normal maintenance are not alterations unless it affects the usability of the building or the facility. 28 C.F.R. §36.402(b)(1).
  4. The 2010 ADAAG specifically defines alteration as including the resurfacing of circulation paths or vehicular ways and is persuasive authority.
  5. While the resurfacing has not been done in nearly two decades, the resurfacing nevertheless was an alteration.
  6. 28 C.F.R. §36.304(d)(3) requiring any noncomplying facilities in existence before March 15, 2012, to comply with the ADA where readily achievable was initially published and approved on September 15, 2010.
  7. 28 C.F.R. §36.402(a), which requires noncomplying facilities altered after January 26, 1992, to comply to the maximum extent feasible was published and approved on July 26, 1991.
  8. §36.304 and 36.402 contradict each other. Since they contradict each other with respect to facilities in existence before March 15, 2012 and altered after January 26, 1992, the regulation issued and approved at the later date, allowing for a readily achievable defense, prevails.
  9. It is up to the plaintiff to present a sufficient showing barrier removal is readily achievable. Plaintiff does that by presenting evidence of: 1) a specific design to remove the barriers allege; 2) the cost of removal or the proposed remedy; and 3) the effect on the finances and operation of the facility.
  10. Under 28 C.F.R. §36.304(a), readily achievable is something that is easily accomplished and able to be carried out without much difficulty or expense.
  11. Considerations of whether something is readily achievable are stated in 42 U.S.C. §12181(9), and include: 1) the nature and cost of the action needed; 2) the overall financial resources of the facility, the number of persons employed there, and the impact of such action on the operation of the facility; 3) the overall financial resources of the facility and its size (including number of employees, and number type and location of facility); and 4) the type of operation of the covered entity.
  12. Since the start of litigation in 2017, Golden China has suffered a net loss even despite a decrease in rent.
  13. Defendants have provided significant evidence that bringing the ramp into compliance with the applicable ADAAG standard would cost between $29,000 and $39,000, which is money they do not have.

III

Thoughts/Takeaways

 

  1. This court adopts the deterrence theory of standing. As we know from this blog entry, standing is a bit all over the place. Some courts are less flexible than others, particularly with respect to the intent to return.
  2. I am a bit surprised that an appeal was not filed for two reasons. First, the court holds that readily achievable is something that the plaintiff has to prove up. Other courts, such as here, take a very different approach. Second, it is just not obvious a readily achievable defense exist even after alterations are done. I get that the two regulatory provisions are in apparent contradiction with each other, but one wonders if it necessarily follows that readily achievable is a defense after alterations are done. As mentioned below, it would be very interesting to research how DOJ has looked at this over the years and what position they took on the matter.
  3. With respect to the current status of the case, the parties are fighting over whether the defendant should be awarded attorney fees. It is really hard for a defendant to get attorney fees. Seems to me that this case was never a slam dunk case for the defendant. Accordingly, an attorney fees petition may well prove unsuccessful. If it does prove successful, certainly worth an appeal.
  4. Resurfacing a parking lot is an alteration. We have previously discussed when an alteration occurs in this blog entry.
  5. This decision opens up another avenue of defense for title III entities with existing facilities and alterations made prior to March 15, 2012. Those entities may be able to argue that even if the alterations were not done right or the path of travel to those alterations were not done the way they were supposed to be, they still may have a readily achievable defense.
  6. It would be interesting to research what DOJ guidances, technical assistant memorandums, etc. over the years with respect to the contradiction between 28 C.F.R. §36.304(a) and 28 C.F.R. §36.402. If there is discussion by DOJ over the years on this, then the question will become whether that discussion, assuming they took a definitive position, would be given credibility by the courts per this blog entry.
  7. Title III entities should be aware that readily achievable is a moving target. It very much depends upon the financial resources of the entity involved. Sometimes, places of public accommodation with considerable resources will have significant repairs deemed readily achievable. So, it just depends.
  8. The allegations of inaccessibility made by the plaintiff in this case are quite typical for drive-by plaintiffs. Another typical allegation would be if the plaintiff had gone inside, you likely would have seen an allegation that the pipes underneath the bathroom sink were not insulated. At any rate, because these allegations are so typical, places of public accommodation may want to focus on the particular items and monitor them accordingly.
  9. The case did not deal with standing for testers.
  10. Case illustrate the point that if you fix the allegations, those claims become moot.
  11. Does the restaurant now have an obligation to post signage saying that the slope of the ramp is not to ADAAG standards if they don’t want to run the risk of a personal injury suit?
  12. Why would a person with a disability do this kind of work if they are not getting paid? Well, if not supposed to happen this way, but in Florida and in Georgia there are allegations that attorneys in those two States did pay the person with the disability a fee for what they did. That action is not ethical, but the allegations are that it happens. More charitably, the ADA went into effect in 1990, and people have had 30 years to comply. It just doesn’t seem to be happening. So, a person with a disability may make it their mission.

Lastly, one more week to vote for my blog in the lexblog contest here.

Last week, the United States Supreme Court heard the trio of LGBT cases. I was previously on record as saying that I expected sexual orientation to be a difficult call, and the transgender plaintiff would win because discrimination occurring against transgender individuals is usually based upon stereotypes. I then read the transcript of the oral argument, and it certainly didn’t work out that way. Reading tea leaves from the oral arguments is next to impossible but here goes anyway. You might ask what does LGBT rights have to do with disability discrimination. The answer to that is it does for many reasons. First, there are opinions, such as here,  holding that gender dysphoria is a disability under the ADA. Second, as you know, equal protection under the 14th amendment is a big interest of mine. What equal protection jurisprudence does is divide people against each other by groups. Also, as you know, people with disabilities vary their equal protection class depending upon the facts but no other group of individuals does that. Third, I have admired the gains that the LGBT community has made over the years, and in many ways, they set the roadmap for others, including persons with disabilities. Finally, on a personal level, the synagogue my family belongs to, Congregation Bet Haverim, was originally founded as the home for lesbian and gay Jews in Decatur Georgia. Now, the synagogue has to be at least 50% heterosexual if not more. That said, our rabbi is openly gay. The synagogue’s leadership also contains LGBTQ leadership. You really can’t belong to our synagogue unless you are open to LGBTQ. It just wouldn’t make any sense. Turning to the discussion of the cases before the United States Supreme Court, the blog entry is divided into the categories of the transgender case and the sexual orientation cases. The reader is free to read either or both of the categories.

 

I

Real Party in Interest Stephens (The Transgender Case)

 

I actually read the decisions backwards. That is, I read the transgender transcript first and then I read the sexual orientation transcript. That is actually backwards as to how the oral argument actually occurred. However, I was glad I did it that way. The reason I did it that way was because I thought the transgender case was the easier case. It turns out it wasn’t. The Supreme Court has adopted a rule now where a party get two minutes of uninterrupted time for oral argument and after that, the Justices are free to fire away. In fact, one of the attorneys making oral argument made a joke of it by saying that if nobody had any questions, he was going to reserve the balance of his time for rebuttal. Moving on to the argument itself, I thought the following was interesting:

 

  1. Justice Roberts immediately struggled with how transgender discrimination could be because of sex rather than transgender status, which is a wholly different animal.
  2. In fact, many of the Justices were not convinced that transgender discrimination was because of sex.
  3. Justice Kavanaugh was silent.
  4. Many of the Justices seemed amenable to a parade of horrible’s argument. Such as, if transgender was protected by title VII, what would that mean for transgender athletes vis-à-vis title IX. I will say that in the LGBT community, there is a lot of division as to how to deal with the transgender athlete. Justice Sotomayor raised the question of how to deal with different bathrooms and locker rooms. That said, she wasn’t buying the parade of horrible’s argument.
  5. Justice Breyer was not persuaded by the parade of horrible’s.
  6. It is possible that stereotyping vis-à-vis Price Waterhouse might just get enough votes to have transgender discrimination protected under title VII (Justice Gorsuch mentioned that possibility).
  7. With respect to transgender discrimination, figuring out an appropriate comparator is a real problem.
  8. Wide agreement among the Justices that the legislators clearly didn’t intend to include transgender when title VII was enacted.
  9. Justice Gorsuch wondered whether protecting transgender is not a legislative decision.
  10. Justice Gorsuch also wondered whether the court should not take into consideration the massive social upheaval protecting transgender individuals would generate, especially in light of the possibility that Congress never thought about transgender when they drafted title VII.
  11. Justice Ginsburg was not buying the argument that title VII only protects people specifically thought up by Congress in 1964. After all, sexual harassment is protected by title VII and Congress had not thought about at the time.
  12. Justice Gorsuch says the, “case is really close, really close on the textual evidence.” He is likely to be the swing vote on this case. As mentioned above, he has several avenues to consider either way.

As I said earlier, reading tea leaves based upon oral argument is dangerous. The vibe I get from reading the oral argument transcript in the transgender case is that the court is unlikely to protect transgender from title VII discrimination. I don’t know if it is even going to be a 5-4 decision against transgender protection; the margin against transgender protection may be more than that. In a way that isn’t surprising because the Lesbian, Gay, and straight community can all struggle mightily with transgender. How Justice Gorsuch deals with the stereotyping issue, which I thought was the strongest part of the case, will be interesting. Finally, it seems pretty clear from reading the oral argument transcript, that the attorneys clearly did not expect the argument to go the way it did. The attorneys often struggled to address the questions of the Justices as if they had not anticipated them.

 

II

Bostock And Zarda (Sexual Orientation)

 

  1. Justice Alito is going to go with legislative intent. Sexual orientation could not have been protected by the legislature in 1964, and so, that is the end of the matter.
  2. Justice Gorsuch just might be persuaded to protect sexual orientation under title VII because title VII explicitly provides for a mixed motive instruction. As he sees it, sex is part of the equation in sexual orientation discrimination.
  3. Justice Gorsuch was also thinking that sexual orientation discrimination could be discrimination “because of sex.”
  4. Justice Kavanaugh struggled with sexual orientation discrimination could be discrimination “because of sex.”
  5. Protecting sexual orientation discrimination because of stereotyping is another possible alternative that potentially could get a majority of the Justices.
  6. While a whole bunch of judges struggled with “because of sex,” when it came to transgender discrimination, there was far less resistance to that when it came to sexual orientation discrimination.
  7. Justice Roberts wondered how religious organizations would be affected by a ruling that sexual orientation is protected under title VII. Justice Gorsuch is very big on religious freedom, and one wonders if that question wasn’t in essence directed toward Justice Gorsuch.
  8. Justice Roberts wondered why states are explicitly protecting sexual orientation if it wasn’t already covered by sex discrimination statutes.
  9. Swing vote is likely to be Justice Gorsuch.

Before signing off, Lexblog is having a contest for best blogs. You can vote here. With respect to the ABA blog 100, as far as I can tell, people don’t vote on that anymore. Rather, it seems to be entirely a decision of the ABA now, assuming they are staying with it. As always, I wouldn’t do this without the support of your readership.

Congratulation to the Washington Nationals and the city of Washington D.C. for the first trip to the World Series since 1931.

Chicago Pizza NOT Domino’s:-)

Before getting started on the blog of the week, a couple of housekeeping matters are in order. First, I am delighted that you have decided to visit my blog on my birthday (October 8). For trivia nuts, it is also the anniversary of the great Chicago fire. Second, Yom Kippur starts tonight. I wish everyone the best with that. Finally, both National League series are going to a game five. Wishing all of your teams good luck with that. Congratulations to the Yankees for moving on and to the Minnesota Twins on a great season.

Yesterday, the world of LinkedIn and some blogs just lit up with the Supreme Court’s denial of CERT in the case of Robles v. Domino’s Pizza, LLC, a published decision found here from the Ninth Circuit in January of this year. One of the questions that came up on LinkedIn is what is the effect of this decision, and this blog entry will discuss exactly that. My colleague and often time co-presenter, Richard Hunt, blogged here on this just yesterday. I agree with him to up to a point. That is, it is up to Congress to deal with the issue, but also regulations are sorely needed (a point that I know Richard agrees with me on). So, it is also up to the Department of Justice to continue somehow the work of the Obama administration with respect to website accessibility guidelines. As usual, the blog entry is divided into categories and they are: Ninth Circuit’s reasoning in Domino’s; and thought/takeaways. Of course, the reader is free to focus on either or both of the categories.

I

The Ninth Circuit’s Reasoning in Domino’s

  1. Where the website is a gateway to a physical store, title III of the ADA applies. That is, the statute applies to the services of a place of public accommodation and not to services in a place of public accommodation.
  2. Title III of the ADA requires that places of public accommodations furnish appropriate auxiliary aids and services when necessary to ensure effective communication with individuals with disabilities. That includes per 28 C.F.R. §36.303(b)(2), accessible electronic and information technology or other effective methods of making visually delivered materials available to individuals who are blind or have low vision.
  3. Domino’s received fair notice that its website and app had to comply with the ADA even if the statute is imprecise. That is, under the ADA, places of public accommodations must provide full and equal enjoyment of their goods, services, facilities, privileges, advantages, or accommodation for people with disabilities and have to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services (See 42 U.S.C §12182(a),(b)(2)(A)(iii)).
  4. Title III Prohibition of discrimination on the basis of disability and its requirement to provide appropriate auxiliary aids and services when necessary to ensure effective communication, places an affirmative obligation on places meeting the definition of a public accommodation to ensure individuals with disabilities have a full and equal enjoyment of their websites as individuals without disabilities.
  5. WCAG 2.0 is a question of remedy and not liability. So, due process is not involved.
  6. The Constitution only requires that Domino’s receive fair notice of its legal duties, not a blueprint for compliance with the statutory obligations. Further, it is entirely possible that the lack of specific instructions from DOJ might be intentional as it promotes maximum flexibility. In other words, the lack of specific regulations does not eliminate a statutory obligation.
  7. Primary jurisdiction doctrine, which we discussed here and in other places in our blog as well, does not apply when: 1) the agency is aware but has expressed no interest in the subject matter of the litigation; or 2) a referral to the agency would significantly postpone a ruling that a court is otherwise competent to make. Both are applicable.

II

Thoughts/Takeaways

  1. Domino’s is a published decision. That means in any jurisdiction in the United States, courts can rely on the decision as precedent. I do expect the due process and primary jurisdiction reasoning of the Ninth Circuit to be very persuasive across the country. Plaintiffs will have to be careful not to allege WCAG 2.0 as a liability standard rather than as as a possible remedy. So long as a plaintiff does that, they will not have a due process concern.
  2. The 11th Circuit currently has a decision pending before it where the trial court imposed WCAG 2.0 on a defendant. One wonders if that decision is not being held up because of thinking that the Supreme Court may have granted CERT on Domino’s. That concern is no longer a concern. So, one wonders if that decision will not come down shortly.
  3. Expect a huge boom in Internet accessibility litigation in California in particular because the Unruh Act ties into the ADA with respect to its violations. That Act also has a damages provisions (I am not a California licensed attorney). Also, in the case we discussed here, getting standing in California is not going to be terribly difficult.
  4. California did recently enact legislation dealing with architectural barriers litigation (I am not a California licensed attorney). One wonders, especially considering the influence of high technology in California, whether you will not see a similar law with respect to violations of the Unruh act with respect to barriers a person may face on the Internet.
  5. Richard and his blog entry talks about how it is up to Congress to fix this. Getting legislation through Congress isn’t going to be easy. In the Senate, any legislation has to have 60 votes to even get considered. Are the 60 votes there? I don’t think so. Senator Tammy Duckworth of Illinois is going to have lot of say with respect to that. With respect to HR 620, which we discussed here, it was Senator Duckworth leading the charge to stopping HR 620 in the Senate. She may very well feel the same way about Internet accessibility. In many ways, Internet accessibility is as equally a problem, if not more so, as physical accessibility for persons with disabilities.
  6. Many Senators have written to the DOJ asking them to come up with the regulatory scheme to deal with Internet accessibility. The Trump administration has expressed no interest in doing so. It isn’t like they would have nothing to build on. The Obama administration went quite far with respect to coming up with Internet accessibility regulations. One wonders whether there will not be increased pressure from legislators for DOJ to come up with regulations.
  7. Keep in mind, even if the regulation focused on WCAG 2.0 AA compliance like the Obama proposed regulation, the key is meaningful access. Don’t get into a trap of assuming compliance with the WCAG 2.0 AA is automatically ADA compliance.
  8. While WCAG 2.0-2.1 is the gold standard, as of now, lots of flexibility exist so long as meaningful access for a person with a disability is achieved.
  9. There is a split in the Circuits to how title III of the ADA applies to Internet only sites. However, that wasn’t the facts in Domino’s. For where the Supreme Court might go with respect to Internet only sites and ADA accessibility, see this blog entry.

Good Luck in game five y’all, and have a safe Yom Kippur. May everyone be inscribed in the book of life for the coming year.

Things have been absolutely crazy this week between client matters, the Jewish new year, and speaking engagements. I do want to wish everyone celebrating a happy new year. As everyone knows, I have a very strong interest in the intersection of the ADA and sports. In the very first edition of my book, which was published in 2000, I had a chapter on the ADA and sports. All of the subsequent editions have had a chapter on that as well. Finally, it isn’t unusual for me to write on the issues of disability discrimination and sports here on my blog, whether it pertained to professional or amateur sports.

Today’s case isn’t actually a decision at all. Rather, it talks about the complaint and removal petition that was filed in the case of Miles v. The National Football League, which complaint can be found here. The complaint was originally filed in New Jersey State court alleging violation of the New Jersey Law Against Discrimination, the ADA, and negligence. The defense removed it to federal court on the grounds that New Jersey Law Against Discrimination iis in essence an ADA claim, and the ADA was also alleged. Also, they removed on the grounds that figuring out liability involves interpreting a collective bargaining agreement. Accordingly, the National Labor Relations Act in the opinion of the defense, preempts the suit. As usual, the blog entry is divided into categories and they are: key allegations of the complaint; and lots of questions/thoughts. I imagine the reader will want to read the whole thing.

 

I

Key Allegations from the Complaint

  1. Miles is a professional football player signed by the New York Jets.
  2. Referees are either employees or agents of the NFL.
  3. New York Jets is the plaintiff’s employer.
  4. Plaintiff suffers from a medical condition known as Alopecia Areata. A manifestation of that medical condition is photosensitivity or photophobia.
  5. Plaintiff does suffer from photosensitivity and/or photophobia caused by that medical condition.
  6. In order to reduce the effects of the photosensitivity or the photophobia, plaintiff uses a protective shield to be used in conjunction with his helmet and face guard. He has been using the protective shield on his helmet to protect his eyes his entire football career.
  7. The New York Jets permitted him to utilize the protective shield on his helmet while practicing or playing football.
  8. On August 19, 2017, just prior to a preseason game against the Detroit Lions, an official of the NFL, a line judge, commanded that plaintiff remove the shield or he would not be permitted to play in the game.
  9. The complaint alleges that the NFL empowered that referee to direct the plaintiff to remove the shield or bar him from playing.
  10. Plaintiff advised the referee and others of his medical condition and the need to wear the protective shield.
  11. The official nevertheless demanded he remove his shield in order to play.
  12. Plaintiff in order to comply with the official’s instruction removed his shield and played without it.
  13. As a result of the lack of protection from the bright sun, plaintiff did not see an opposing player approach and was unable to take defensive maneuvers when an opposing player made contact with him. The result was severe and significant injuries i.e. a broken orbital bone of the right eye in two places. He also had to undergo surgery and continues to suffer from ongoing severe pain. Also, his career is uncertain and possibly in jeopardy.

II

Lots of Questions/Thoughts

  1. We have discussed the NFL collective bargaining agreement before, here.
  2. Labor unions and collective bargaining agreements are subject to the ADA.
  3. When I was much younger, I refereed all the time. In particular, I did some softball umpiring. I also refereed junior high school and high school basketball. It was a lot of fun and great exercise. Also, you would be surprised how much of a time commitment it is. Not surprisingly, the NFL has moved towards hiring many of its officials, but I don’t think all, as full-time employees. All that said, I know firsthand that officials are often not employees but rather are independent contractors. With respect to the ADA, whether that official is an employee of the NFL or an independent contractor makes a huge difference in terms of the ADA’s applicable rules involved. Whether this line judge is an independent contractor or an employee of the NFL is a big question.
  4. It is interesting that the New York Jets are not named as one of the defendants. That probably has to do with how the NFL is configured. It is entirely possible that the NFL is the proper party because in essence all the teams are part of the NFL as a single entity. I do remember reading things over the years to that effect. Still interesting nevertheless.
  5. Assuming for the sake of argument, the ocular condition is what it is and results in photosensitivity and photophobia (hard to believe that such a condition would not be a disability under the ADA as amended), it would seem a reasonable accommodation to use a protective shield. I suppose the defendant might argue safety. However, as we have discussed previously, any such safety defense has to be based upon objective evidence and not on generalizations or stereotypes.
  6. It said the New York Jets permitted him to utilize the protective shield on his helmet while practicing or playing football. I don’t doubt that. However, I find it very curious as to why the New York Jets did not go to bat for the employee when he was asked by the official to remove the protective shield. For example, the New York Jets could have said no. The New York Jets also could have insisted on a call to the league office. One would think that the NFL itself would have had to approve the protective shield since it is equipment that theoretically could endanger others.
  7. It was a preseason game. Preseason games are basically meaningless. So, why didn’t the New York Jets or the plaintiff just say I won’t play because I won’t expose myself to a situation where I am a direct threat to myself?
  8. I am not a National Labor Relations Act attorney, and so, I can’t say whether the National Labor Relations Act would preempt the ADA suit. I did look at the statute itself, which was listed in the complaint, and I don’t see any specific preemption language such as what is seen in ERISA. That said, you don’t necessarily need any such language for preemption to occur, as we discussed here.
  9. While the case may pivot on upon the collective bargaining agreement, that doesn’t mean that the collective bargaining agreement itself may not be problematic with respect to the ADA.
  10. This case is going to be very interesting to follow. The ADA issues are rather novel and unique. In particular, was the official an employee or an independent contractor? Just what is the intersection between the ADA, the collective bargaining agreement, and the official.
  11. The official may have, and I am sure he does, a collective bargaining agreement with the NFL. What does that agreement say about accommodating NFL players with disabilities?

To quote my favorite character on Star Trek original, “fascinating.”

Update: on November 21, 2022 United States District Judge Julien Neals of the United States District Court of New Jersey dismisses the case for two reasons. First, the state claims were preempted by the Labor-Management Relations Act because deciding the claim necessarily meant analyzing the collective bargaining agreement between the NFL and the player. Second, the ADA claim was thrown out because the plaintiff failed to file with the EEOC within the 300 day period. The decision does not discuss why the EEOC claim was not filed within the 300 day timeframe.

Next week, my daughter is on break. She has one of those schedules where they are on for six weeks and then off for one week. They do get two weeks for winter vacation. So, since my schedule is likely to be all over the place next week, I thought I would do another blog this week since the 11th Circuit came down with a very important decision on September 17, 2019. Previously, we have blogged twice on the case, here. The case involved the question of whether the Department of Justice has any authority to enforce title II of the ADA. In a 2-1 decision a panel of the 11th Circuit says that it does. The person writing the decision (published), Judge Boggs, was sitting by designation from the Sixth Circuit. So, the actual judges on the 11th Circuit split1-1. That leads one to wonder whether Florida will not petition for an en banc rehearing and may very well get it. The actual decision is 66 pages long, but it can be condensed considerably for our purposes. The facts aren’t really important as what was at issue is whether DOJ has the ability to enforce title II of the ADA through a court action. As usual, the blog entry is divided into categories and they are: what it comes down to; title VI of the Civil Rights Act; §504 of the Rehabilitation Act; title II of the ADA; dissent by Judge Branch; and takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

What It All Comes down to

  1. The entire case turns upon how 29 U.S.C. §794a(a)(2) gets interpreted. More specifically, that statute provides: “the remedies, procedures, and rights set forth in title VI of the Civil Rights Act of 1964 (42 U.S.C. §2000d et seq.) (and in subsection (e)(3) of §706 of such act (42 U.S.C. 2000e-5), apply to claims of discrimination in compensation) shall be available to any person (emphasis mine), aggrieved by any act or failure to act by any recipient of federal assistance or federal provider of such assistance under §794 of this title.
  2. The reason it comes down to the interpretation of the above paragraph is that through a series of interlocking cross-references starting with 42 U.S.C. §12133 remedies for violating title II of the ADA are linked to the remedies section for violating §504 of the Rehabilitation Act, which in turn links to title VI remedies of the Civil Rights Act.

II

Title VI of the Civil Rights Act

  1. The remedies for violating §504 of the Rehabilitation Act are tied into title VI of the Civil Rights Act.
  2. Where there is a violation of title VI of the Civil Rights Act, agencies enforcing the prohibition on discrimination can either terminate funding to the particular program violating the regulation or can take action by any other means authorized by law.
  3. Those feeling they have been subjected to discrimination in violation of title VI can file a written complaint. Upon receipt of that complaint, the Department is required to make a prompt investigation to determine whether recipient of federal funding has failed to comply with the antidiscrimination requirements. If that investigation demonstrates recipient is not in compliance, the Department must notify the recipient and attempt to resolve the matter by informal means if possible. Where informal means do not work, then the Department can take further action to induce compliance. Such action can include suspending, terminating, and refusing to grant or continue federal financial assistance, or “any other means authorized by law.”
  4. Over time, “by any other means” has been characterized by the Department of Justice as including appropriate proceedings brought by the Department to enforce any rights of the United States under any law of the United States. That action cannot be taken until it has been determined that it cannot secure voluntary compliance, the Atty. Gen. has approved the action, and the noncomplying party had been notified of its failure to comply and the action to be taken.
  5. 28 C.F.R. §50.3 talks about alternative courses of action and specifically states that compliance with the nondiscrimination mandate of title VI may often be obtained more promptly by appropriate court action than by hearings and termination of assistance.
  6. The phrase “any other means authorized by law,” shows that Congress intended to preserve other methods of enforcement, including the filing of suit. The court cites to various cases supporting that proposition.

III

§504 of the Rehabilitation Act

  1. Congress amended the Rehabilitation Act in 1974. Legislative history from that amendment reveals that Congress intended §504, 29 U.S.C. §794, to lead to an implementation of a compliance program similar to title VI of the Civil Rights Act.
  2. The Department of Health Education and Welfare procedures for carrying out the Rehabilitation Act were identical to those adopted by the DOJ in implementing title VI of the Civil Rights Act.
  3. In 1978, the Department of Justice’s regulations for enforcement of §504 of the Rehabilitation Act became the same as those promulgated by the Department of Health Education and Welfare.
  4. The enforcement scheme allows for both individual complaints and agency oversight leading to investigations ending with federal enforcement actions.
  5. The United States has brought suit to ensure compliance with the Rehabilitation Act after the relevant agency has received the complaint and investigated.
  6. Congress was fully aware of the administrative system when it passed the 1978 amendment to §504 and §505 of the Rehabilitation Act since those amendments codified existing administrative practice of using title VI procedures.

IV

Title II of the ADA

 

  1. Just because individuals have a private right of action, does not automatically lead to the conclusion that government enforcement is impermissible. Ensuring that public entities subject to federal statute comply with those statutes ultimately vindicates individual personal rights. However, that doesn’t mean Congress’s decision to enact the statutory scheme permitting governmental enforcement of title II should be ignored.
  2. 42 U.S.C. §12134(b) states that regulations implementing title II of the ADA have to be consistent and in coordination with regulation issued by the Department of Health, Education, and Welfare on January 13, 1978. This requirement leads to the conclusion that Congress intended the Atty. Gen.’s title II regulations to adopt Rehabilitation Act’s title VI type enforcement procedures because title II’s enforcement procedures use the Rehabilitation Act’s enforcement structure.
  3. DOJ regulations implementing title II of the ADA set up an administrative scheme similar to the ones available for the Rehabilitation Act and title VI of the Civil Rights Act.
  4. Congress expressly authorized the Atty. Gen. to make rules with the force of law interpreting and implementing title II of the ADA. Further, those regulations are reasonably related to the legislative purpose of the ADA and are consistent with the remedial structure Congress selected for title II. Accordingly, those regulations get deference as they are not arbitrary, capricious, or plainly contrary to the statute.
  5. Congress chose to use §505(a)(2) the Rehabilitation Act as the enforcement mechanism for title II of the ADA with full knowledge those provisions established administrative enforcement and oversight in accordance with title VI. They also knew that by adopting that provision they incorporated title VI’s “any other means authorized by law,” provision.
  6. If Congress intended to create a private right of action under title II as the only possibility for enforcement, then its decision to cross reference §505 of the Rehabilitation Act, 29 U.S.C. §794a, which expressly incorporates title VI, including its administrative enforcement scheme, would be mystifying, especially since Congress directed the Atty. Gen. to develop regulations consistent with the Rehabilitation Act enforcement procedures that included title VI enforcement.
  7. When Congress enacted title II of the ADA, it drew upon two other statutes creating remedies, rights, and procedures available for enforcement with the full knowledge of those other statutes. Those other statutes were enforceable by federal agencies through funding termination or “any other means authorized by law.” Congress then told the Atty. Gen. to make regulations implementing title II of the ADA that were consistent with a set of regulations tracing directly back to the regulations implementing title VI of the Civil Rights Act. Congress was quite clear that title V the Rehabilitation Act and its accompanying regulations must be construed as the minimum standard for the ADA. Congress knew that both title VI and the Rehabilitation Act had been enforced through DOJ litigation when it enacted the ADA, especially since §12133 ultimately relates back to “any other means authorized by law.”
  8. “Any other means authorized by law,” is a phrase courts have interpreted to permit referral to DOJ for further legal action.
  9. Legislative history is not against having both a private right of action and with allowing DOJ to pursue enforcement actions.
  10. Various courts have concluded that the Atty. Gen. has the power to enforce title II in federal court.
  11. Unlike the Rehabilitation Act, the ADA is not spending clause legislation. Accordingly, there is a broad scope of potential federal enforcement under title II of the ADA.
  12. Since title II enforcement provision cascades back to §602 of the Civil Rights Act authorizing the Atty. Gen. to enforce compliance of title VI of the Civil Rights Act by filing suit in federal court, the Atty. Gen. also can bring suit to enforce other statutes adhering to same enforcement scheme.
  13. States are public entities under title II of the ADA and are explicitly subject to suit by the United States for violation of title II of the ADA.
  14. States do not retain sovereign immunity from suits brought by the federal government.

V

Dissent by Judge Branch

  1. The dissent is much more simple in its approach. Basically, what it says is that the section of 42 U.S.C. §12133 talking about the remedies being available to any person alleging discrimination means that the Atty. Gen. has no title II enforcement authority because “any person,” modifies the prior language talking about the remedies.
  2. Everyone agrees that the Atty. Gen. is not a person for purposes of federal statutes.
  3. Title I and title III explicitly references federal enforcement powers while title II of the ADA does not.

VI

Takeaways

  1. Basically, the difference between the majority opinion and the dissenting opinion is that the majority opinion believes the title II remedy section creates an either or situation by referring back to a bunch of statutes and then subsequently referencing “a person,” later on in that same section. On the other hand, the dissenting opinion believes the “to any person,” language modifies the remedy section referenced earlier on in that same statute.
  2. The 11th Circuit Judges split 1-1 on this decision. So, look for an en banc rehearing petition in order for the full 11th Circuit to make a determination.
  3. This decision has a huge impact on accessing governmental entities. For now, the DOJ has title II enforcement powers. I can tell you that I get contacted by so many different people that simply can’t afford a private attorney. Also, many plaintiff firms are in essence mom-and-pop shops. It can be very useful to bring in DOJ as leverage when taking on governmental entities, especially since the standard for getting damages under title II of the ADA, which we have discussed here, is higher than what you see under title I of the ADA.
  4. I don’t know where the full 11th Circuit goes with this case if they grant an en banc rehearing. As I have said several times before, the 11th Circuit has become very progressive when it comes to the rights of people with disabilities. On a policy level, DOJ having title II enforcement authority makes a great deal of sense. However, the argument supporting that authority is a bit complicated and involves saying that a statute creates an either or situation. On the other hand, the dissenting argument is much more straightforward by saying “to any person,” modifies the rest of the statute. Also, in title I and title III, separate explicit statutory provisions exist for federal enforcement, which is not the case under title II.
  5. If the 11th Circuit grants a petition to rehear the case en banc, the time for the final decision will be down the road. Further, if the decision of the full 11th Circuit, assuming it decides to hear the case, supports DOJ enforcement of title II, I would look for an appeal to the United States Supreme Court. That would mean that the 2020 elections would become critical because regardless of what the United States Supreme Court says (this one could go either way), a Democratic Congress could amend the ADA so as to specifically include DOJ enforcement authority in title II of the ADA. Even assuming Congress remains split between the parties, with a Democratic president, assuming that happens, and it may not, and a Democratic House, it is possible that the ADA could be amended that way. Everything I am reading says that a takeover of the Senate by Democrats is extremely unlikely, but one never knows. Ground Zero will be right here in Georgia with two Senate seats up due to the resignation of Senator Isaacson.
  6. Maybe amending the ADA, especially if the Supreme Court decides in favor of DOJ title II enforcement, is a bad idea since HR 620, which we discussed here, would also get put in play.
  7. I have said many times that the ADA does not provide for individual liability. However, as noted by the 11th Circuit in the decision we are discussing in this entry, that isn’t the case in the 11th Circuit when it comes to retaliation as a result of this case.
  8. We have discussed sovereign immunity many times, but this case makes the important point that States do not get sovereign immunity from suits brought by the federal government.
  9. I wonder if DOJ will continue to advocate for it title II enforcement as this case proceeds or if it will switch sides. For those on the plaintiff side, it may be heartening to see that the Department of Education recently came up with a document supporting students with disabilities with respect to dual enrollment. Perhaps, that is a sign that the DOJ will stick to its position.

Today’s blog entry will focus on the decision from the 11th Circuit decided September 12, 2019, on the Massage Envy case we discussed here. In this decision, the 11th Circuit affirmed the opinion of the lower court holding that regarded as does not apply to fear of a future disability. As mentioned in the original blog entry on this case, the lower courts are split on this question. I do look for a Circuit Court split in the future on the matters discussed in this blog entry. Since we have already talked about this case extensively, there isn’t a need to bother with the facts except as they are germane to the court’s reasoning. So, this blog entry is divided into categories of: court’s reasoning regarded as; court’s reasoning association discrimination; miscellaneous matters; and thoughts/takeaways. The reader is free to concentrate on any or all of the categories.

 

I

Court’s Reasoning Affirming the District Court That Regarded As Does Not Apply to Fear of Employee Catching Ebola on a Trip to Ghana

 

  1. Employer’s fear that employee could catch Ebola was unfounded as there were no confirmed cases of Ebola in Ghana during the 2014 outbreak.
  2. 42 U.S.C. §12102(1) defines a disability as: 1) a physical or mental impairment that substantially limits one or more major life activities of such individual; 2) a record of such an impairment; or 3) being regarded as having such an impairment.
  3. With respect to regarded as having such an impairment, 42 U.S.C. §12102(3)(A) that definition is satisfied if the individual establishes he or she had been subjected to an action prohibited under the ADA because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.
  4. Regarded as does not apply to impairments that are transitory and minor.
  5. Time period for assessing the existence of disability for purpose of triggering ADA protection is the time of the alleged discriminatory act.
  6. The court agrees with the defense that the employer perceived the employee as having the potential or possibility of becoming infected in the future when she traveled to Ghana. That is not the same thing as the employer perceiving the employee had Ebola.
  7. The definition of disability and 42 U.S.C. §12102(1) provides that a disability is a present physical or mental impairment, a record of such an impairment, or being regarded as having such an impairment.
  8. Many courts have said that the impairment in the actual disability prong is limited to impairments existing at the time of the adverse employment action and does not include impairments manifesting after the alleged discrimination. Therefore, it necessarily follows that impairment in the regarded as prong has the same meaning as impairment in the actual disability prong because terms appearing in several places in statutory text generally read the same way each time it appears.
  9. 42 U.S.C. §12102(1)(C) refers to “such an impairment,” which necessarily refers back to 42 U.S.C. §12102(1)(A).
  10. So, in regarded as cases a plaintiff has to show the employer knew the employee had an actual impairment or perceived the employee to have such an impairment at the time of the adverse employment action. Further, that impairment must not be transitory and minor.
  11. When 42 U.S.C. §12102(3)(A) is read most naturally, a person is regarded as a person with disability only if she is subject to termination because of an actual or perceived physical or mental impairment. That is, an employer does not fire or otherwise discriminate against an employee because of a perceived physical impairment unless the employer actually perceives the employee to have that impairment. So, 42 U.S.C. §12102(3)(A) does not extend to an employer’s belief that an employee might contract or develop an impairment in the future.
  12. While it is absolutely true that the ADA has to be construed in favor of broad coverage of individuals, the court still concludes that the terms of the ADA protect anyone who experiences discrimination as a result of a current, past, or perceived disability and not a potential future disability.
  13. The EEOC’s own interpretive guidance, a body of experience and informed judgment that the court may properly resort to for guidance, states that a predisposition to developing an illness or disease is not a physical impairment.
  14. In the EEOC’s appendix to the regulations, the EEOC says that it is important to distinguish between conditions that are impairment and physical, psychological, environmental, cultural, and economic characteristics that are not impairments. That same appendix says that characteristic predisposition to illness or disease did not constitute a physical impairment under the ADA. So, if a predisposition to developing a disease in the future is not a physical impairment, then the court simply didn’t see how the plaintiff’s heightened risk of developing the disease of Ebola in the future by visiting Ghana constitutes a physical impairment either.
  15. While it is true that the phrase “being regarded as having such an impairment,” contains present tense verbs (present tense can include the future), the plain language of the ADA in the context of this provision indicates that being regarded as does not apply to the future.
  16. The 11th Circuit also wasn’t buying that regarded as should be read as being regarded as having an imminent impairment because that would be adding a word to the statute that doesn’t exist.
  17. The statutory text of the ADA is such that the employer must perceive the employee as having a current existing impairment at the time of the alleged discrimination.

 

II

Court’s Reasoning Association Discrimination

 

  1. The association discrimination provision is intended to protect qualified individuals from adverse job actions based on unfounded stereotypes and assumptions arising from the employee’s relationship with particular persons with disabilities.
  2. A prima facie claim for association discrimination means showing: 1) plaintiff was subjected to an adverse employment action; 2) plaintiff was qualified for the job at that time; 3) plaintiff’s employer knew at that time that she had a relative or associate with a disability; and 4) the adverse employment action occurred under circumstances raising a reasonable inference that the disability of the relative or associate was a determining factor in the employer’s decision.
  3. While the nature of the relationship in question does not have to be family (see 29 C.F.R. §1630.8), a plaintiff does have to show an association or relationship with a specific person with a disability or persons with a disability (see 42 U.S.C. §12112(b)(4).
  4. Plaintiff’s claim fails because plaintiff did not plausibly allege that the employer knew the plaintiff had an association with a specific individual with a disability in Ghana when it terminated her employment.
  5. Alleging plaintiff might come in the contact with certain unknown individuals by traveling in Ghana is too attenuated a connection for stating an association discrimination claim because that kind of claim requires both a known association and a known disability.
  6. EEOC failed to plausibly allege a sufficient association or relationship with unknown individuals with Ebola. After all, plaintiff was not traveling to Ghana to assist with the Ebola epidemic. It isn’t good enough to allege that plaintiff might come into contact with those individuals by traveling in the country.
  7. Generalize references to association with persons with disabilities or to advocacy for a group of persons with disabilities are not sufficient to state a claim for association discrimination under the ADA.
  8. The EEOC did not cite to any case involving the association discrimination claim based upon the employer’s belief about an employee’s potential causal association with unknown people with disabilities.
  9. An employer may fire an employee for good reason, a bad reason, a reason based on erroneous facts, or for no reason at all so long as its action is not for discriminatory reason contrary to federal law.

 

III

Miscellaneous Matters

 

  1. The 11th Circuit agrees that the lower court was justified in refusing to allow the EEOC to amend its complaint to add an interference claim because the plaintiff had no right granted or protected by the ADA to begin with;
  2. The 11th Circuit agreed with the plaintiff that the District Court erred in not allowing her to intervene in the lawsuit because plaintiff as a matter of right has the right to intervene in the lawsuit. Nevertheless, since plaintiff had no underlying ADA rights to begin with, denying the intervention was harmless error;
  3. Judge Jordan concurred. He was of the opinion that the clear statutory language was such that the majority opinion got it right. However, he did write to state that the policy behind the ADA supported the plaintiff’s position. In particular, the ADA was enacted in part to eliminate the sort of stereotyping allowing employers to see their employees primarily as their disability. Also, citing to Shell, which was discussed in the original Massage Envy blog entry, Judge Jordan says the EEOC position that “regarded as,” encompasses a decision made by an employer based on a perception that an employee is going to suffer experience a disability in the future makes a lot of sense.
  4. Judge Jordan would have also decided the question of whether the EEOC had to exhaust administrative remedies before filing suit. He also says that he would have decided in favor of the EEOC that the exhaustion of administrative remedies doctrine does not apply to the EEOC.

 

IV

Thoughts/Takeaways

 

  1. The contrary view to this decision was expressed by the court deciding Shell.
  2. The 11th Circuit has been very pro-person with a disability of late. So, one wonders whether a petition for rehearing en banc will not be sought. Appeal to the United States Supreme Court? With respect to the United States Supreme Court, it is true that United States Supreme Court is not friendly to people with disabilities with respect to employment matters. However, United States Supreme Court of late has been very interested in looking at the rights of people with disabilities broadly outside of the employment context, such as here and here, for example. Not at all clear to me even with the configuration of this court, how the Supreme Court might decide this.
  3. The Shell case has several arguments that could be used to convince an en banc court that this panel didn’t get it right. These arguments appear below in ¶ ¶ 4-8 of this section. Keep in mind, the facts in Shell, dealing with obesity, were much more obvious that the employer perceived a disability than they are in Massage Envy. Also, the “voluntary,” conduct in Shell was much less of an issue there than it is in Massage Envy. So, Massage Envy certainly has an argument that Shell is distinguishable. I realize in the original blog entry that I didn’t see how the two cases could be distinguished, but upon further review, there is a possibility that they can be. After all, it is football season. So, we always have, “upon further review.”
  4. The policy behind the ADA, as Judge Jordan mentioned, is such that regarding a person as having a future disability is protected by the ADA.
  5. The ADA makes quite a point about individualized analysis needing to be done just about everywhere. That certainly wasn’t the case when Massage Envy terminated the plaintiff.
  6. A distinction exists between being predisposed to illness generally v. being predisposed to developing a disability subject to the ADA.
  7. The employer acted upon worst-case scenarios derived from precisely the sort of myths, fears, or stereotype the ADA was meant to guard against.
  8. The 11th Circuit ignores that the ADA prevents an employer from adopting policies, practices, and procedures that screen out people with disabilities.
  9. If the 11th Circuit decision holds, does that mean employers have free reign to terminate employees with genetic conditions that will manifest themselves later? Will the distinction in those kinds of cases be “voluntary,” conduct?
  10. 11th Circuit cites to the EEOC’s appendix on more than one occasion. The appendix is essentially the EEOC interpreting its own regulations. As we know from our discussion in Kisor v. Wilkie, it is far from a certain conclusion that the EEOC’s interpretation of its own regulations will automatically get credited as the go to deciding factor.
  11. I agree with the court that it doesn’t make a lot of sense to say regarded as must be read as regarding as having an imminent impairment.
  12. The Circuit’s are splitting on what association discrimination is. The 11th Circuit has a far broader notion of association discrimination than the Seventh and Second Circuits (see, here). As we discussed in this blog entry, in the Second and Seventh Circuits, association discrimination only applies under certain narrow factual situations. The 11th Circuit decision doesn’t do that. Another Circuit court split that tees up for the Supreme Court.
  13. It is not a foregone conclusion to me that the actual disability prong must dictate the same conclusion with respect to the regarded as prong when it comes to whether a future impairment is part of the regarded as definition. You could argue that the regarded as prong essentially functions as an adjective modifying the actual disability prong.
  14. The 11th Circuit uses “because of,” several times in its opinion. Causation under title I is “on the basis of,” as we have discussed many times before, such as here.
  15. On June 7, 2023, DOJ reported that they had settled with Massage Envy that requires the company to change policies at all of its franchise locations nationwide in order to provide reasonable accommodations to individuals with disabilities. See here. Since it is DOJ doing the settling, it is obviously nonemployment but even so…

blood plasma

 

Previously, we have discussed here and here whether a plasma center is a place of public accommodation under title III. That discussion shows there is already a split in the Circuit Courts on the issue. On August 30, 2019, the Third Circuit weighed in on this in Matheis v. CSL Plasma Inc., A published decision. They came down in favor of a plasma center as a place of public accommodation. The facts in this case are pretty straightforward. Here, you have a retired police officer with PTSD who routinely and safely donated plasma roughly 90 times in 11 months. When he obtained a service dog, the plasma center refused to allow him to donate blood arguing that anybody who had a service dog for PTSD was automatically prohibited from donating blood because they must have extreme anxiety too severe to undergo safely the donation process. The retired police officer loses on summary judgment and appeals to the Third Circuit. The blog entry is divided into the categories of court’s reasoning and takeaways. I imagine the reader will want to read the whole thing.

 

I

Court’s Reasoning

 

  1. 42 U.S.C. §12181(7)(F) says that a place of public accommodation includes, “a laundromat, dry cleaner, bank, barbershop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a healthcare provider, hospital, or other service establishment (emphasis mine).
  2. The question is whether a plasma center is an, “other service establishment.”
  3. It notes that the 10th Circuit and the 5th Circuit have reached opposite conclusions.
  4. The court spent considerable time attacking the Fifth Circuit opinion (see ¶ ¶ 6-10 of this section of the blog entry, below). With respect to the 10th Circuit opinion finding that a plasma center is a place of public accommodation, the court notes the following from the 10th Circuit opinion: 1) “service,” has a broad, common definition- i.e. conduct or performance assisting or benefiting someone or something; 2) “establishment,” also has a broad, common definition, i.e. a place of business; 3) giving the term “service establishment,” the ordinary meaning of its components does not result in ambiguity nor does it result in anything irrational. After all, plasma donation centers are places of business assisting or benefiting those who wish to provide plasma for medical use-whether for altruistic reasons or for pecuniary gain-by supplying personnel and medical equipment necessary to accomplish that goal.
  5. The 10th Circuit has the better view.
  6. No support exists for the Fifth Circuit’s statement that donors do not benefit from the act of donating. That is simply not the case, donors receive money, a clear benefit, to donate plasma.
  7. The argument that secondary profit motive can dictate a finding a plasma center is not a place of public accommodation doesn’t wash. After all, a bank, which is explicitly a place of public accommodation also has a secondary profit motive.
  8. Businesses offering services to the public convey something of economic value in return for something else of economic value. That value is often money, but it doesn’t have to be. Money is just one proxy for economic value, and economic value is fungible.
  9. Banks and customers often exchange services not fitting simply into a money for service model. A pawnshop is another example. A recycling center is yet another example. Both pawnshops and recycling centers have been held to be subject to the ADA.
  10. Providing services means providing something of economic value to the public. It simply doesn’t matter whether that economic value is paid for with money or something else of value.
  11. Failure to accommodate cases turn on three questions: 1) whether the requested accommodation to the program was reasonable; 2) whether the requested accommodation was necessary to assure meaningful access; and 3) whether it would represent a fundamental alteration in the nature of the program.
  12. Plaintiff bears the initial burden of establishing that the desired accommodation is reasonable and necessary, while the defendant bears the burden of showing that it would fundamentally alter the nature of the program.
  13. Title III entities are required by 28 C.F.R. §36.302 to modify policies, practices, or procedure to permit the use of a service animal by an individual with a disability.
  14. A service animal used by a person with a disability is reasonable under the ADA as a matter of law so long as no DOJ regulation supersedes it.
  15. A plaintiff does not need to show intentional discrimination in order to demonstrate a violation of title III of the ADA. Accordingly, McDonnell-Douglas simply does not apply. The only question is whether the defense established an exception permitting a plasma donation center to deny an individual with a disability his or her use of a service animal. If no exceptions apply, then the use of a service animal is a reasonable accommodation and plaintiff prevails.
  16. 28 C.F.R. §36.208 permits places of public accommodation to deny anyone services who poses a direct threat to others. However, the direct threat exception requires an individualized assessment to determine the nature, duration, and severity of the risk; the probability that the potential injury will actually occur; and whether reasonable modifications of policy, practices, or procedures or the provision of auxiliary aids or services will mitigate the risk.
  17. Safety requirements per 28 C.F.R. §36.301(b) have to be based upon actual risks and not on mere speculation, stereotypes, or generalizations about individuals with disabilities.
  18. The defendant simply has not made its case that its policy of excluding donors with service dogs is based upon anything other than mere speculation, stereotypes, or generalizations about individuals with disabilities. There isn’t any medical justification or other scientific evidence backing up the defense’s conclusion that all those person having severe anxiety will put staff, other donors, or themselves at risk when donating plasma.
  19. The defense fails to explain why the plaintiff, who has managed his PTSD for nearly 2 decades and safely donated plasma roughly 90 times, should only be considered safe to donate when he renounces the new service animal that helps him better manage his PTSD.

 

II

Takeaways

  1. We now have two Circuits taking the position that a plasma center is a place of public accommodation. We have one taking the position that it is not. A Circuit Court split is one of the reasons the United States Supreme Court agrees to hear cases. As I have mentioned previously, people with disabilities do very well at the Supreme Court outside of the employment context. Here, you have a person who donated blood successfully 90 times without a service dog. He is also a retired police officer. Finally, this is not an employment case. Even with the current configuration of the United States Supreme Court, I like the chances of the plaintiff at the Supreme Court should this case get appealed to the Supreme Court.
  2. In the case involving South Dakota, which we discussed here, the Supreme Court has already signaled that it would be open to broadly construing what is a place of public accommodation.
  3. This decision is published, and so, no restrictions exist on citing it as precedent.
  4. This case contains a nice description of what failure to accommodate cases turn on.
  5. This case also has a very nice explanation of the burden of proof. Too often, the burden of proof explanation gets overly legalistic, which is not the case here.
  6. This opinion says McDonnell Douglas doesn’t apply to title III cases.
  7. Blanket exclusions are always a bad idea. The ADA operates on an individualized analysis.
  8. As a matter of preventive law, don’t get stuck on whether a particular business is specifically listed in 42 U.S.C. §12181(7) when trying to determine if the business is a place of public accommodation. For that matter, as a matter of preventive law, unless you want to chew up a lot of money in litigation, which may or may not be successful, I wouldn’t get stuck on whether it is a physical place either. The question is whether what is going on is of the kind listed in any of the categories in 42 U.S.C. §12181(7).
  9. In State of Illinois v. CSL plasma, the DOJ filed a statement of interest in May of 2022, saying that plasma centers are places of public accommodations and that the Fifth Circuit holding otherwise got it wrong. That statement of interest can be found here.

Today’s blog entry explores the question of when does a statute of limitations begin to run in an ADA case not dealing with a failure to accommodate. It also explores the question what might an ADA grievance procedure look like. Our case of the day is Endres v. Northeastern Ohio Medical University decided by the Sixth Circuit on August 30, 2019. As usual, blog entry is divided into categories and they are: key facts; ADA statute of limitations was not missed; due process claims and qualified immunity; what does due process in a disciplinary matter look like; and takeaways. Of course, the reader is free to focus on any or all of the categories.

I

Summary of Facts

Endres has ADHD and has taken medication to treat that condition since he was six years old. He started with Ritalin. He graduated from high school as valedictorian and enrolled in the accelerated B.S./M.D. program at Northeast Ohio Medical University, a public university. After completing his undergraduate studies in two years, graduating magna cum laude, he began medical school. Around March 2015 he felt that the medication was over sedating him and made him lethargic. So, he stopped taking it all together. By that time, Endres passed 14 of the 15 required classes for the first year of medical school, but he still had one class left. No longer on Ritalin, he failed that class. So, the school made him repeat the entire first year curriculum during the following academic year, including the 14 classes he had passed.

Before he returned to school that fall, he consulted with his physician to find a medicine that would treat his ADHD without inducing the unwanted side effects. In August 2015, he began Strattera. He alleged Strattera helped him concentrate without him feeling drowsy, but it was not a magic bullet. Unlike Ritalin, Strattera did not suppress his fidgeting. Even so, he stuck with the new medicine.

Back at school, he repeated the classes that he had the first year because he had to take all of the classes again even though he had passed them all except one. One of those classes, was Human Development and Structures. At the school people take tests using the school’s laptop with a special software program that allows them to zoom in and out and manipulate images on the screen. Endres alleged that the school’s laptop are set up at the lowest brightness level and that student cannot make the screen any brighter. They do have the ability to zoom in, and when they do so, a light flashes as the person zooms in.

On September 28, 2015, he took a test in that course. Footage from the test reveals Endres fidgeting and repeatedly glancing toward the right in the direction of his seatmate. Endres said that he was responding to the flashing light. Also, he said it was physically impossible to see any legible content on the laptop to his right because he was sitting about 5 feet away and because all laptop was set to the lowest brightness level. Even so, one of the proctors of the test filed an irregularity report saying that Endres appeared to look repeatedly at the laptop to his right but that it was possible he was just nervous. That report made its way to the school’s Chief Officer Of Student Affairs and everything went downhill from there, including but not limited to: 1) the school not acknowledging his Dr.’s note that the fidgeting imitated what she saw in the office; 2) the school ignoring his Dr.’s suggestion for reasonable accommodation so that Endres wouldn’t be perceived as cheating; 3) the Chief Officer Of Student Affairs ignoring a request to re-create testing condition through a field test so as to prove that it was impossible to cheat; 4) the school refusing to consider evidence that it made perfect sense that he and the student next to him would have similar test responses even without cheating; 5) the school refusing to inform Endres about any part of the Chief Of Student Affairs presentation to the disciplinary panel and not asking Endres any questions related to her presentation; 6) the school denying Endres request for evidence centered on debunking the cheating analysis until the eve of his deadline to appeal; 7) the school refusing to consider a variety of evidence not introduced previously that countered cheating allegations; 8) Endres not having the ability to offer evidence rebutting assertions made in a memo from the Chief Officer Of Student Affairs to the disciplinary panel containing numerous inaccuracies and misrepresentations.

As a result of all this, Endres brought suit claiming that the school effectively concluded that his ADHD precluded him from completing his medical studies even though reasonable accommodations could have been made to ensure that the appearance of academic misconduct was dealt with. He also sued for violations of his due process rights. He filed suit for both injunctive relief and declaratory relief as well as for damages. With respect to damages for allegedly violating his due process rights, he filed suit against the Chief Officer Of Student Affairs both in her official and personal capacity. With respect to personal capacity, she defended on the grounds of qualified immunity. With respect to the ADA, the school defended on the grounds that the statute of limitations had expired.

II

ADA Statute of Limitations Was Not Missed

  1. The statute of limitations for §1983, ADA, and the Rehabilitation Act in Ohio is the Ohio two-year statute of limitation for personal injury actions.
  2. Under federal law, statute of limitation period begins when the plaintiff knows or has reason to know of the injury that is the basis of his action.
  3. The plaintiff went through one disciplinary panel, an appeal, and then another disciplinary panel, and plaintiff had no idea that he was terminated from the program until the very end of the process when it could then be said a final decision was made. Accordingly, the suit was filed within the statute of limitations.

III

Due Process Claims and Qualified Immunity

  1. In the Sixth Circuit, suspension of a student for two years implicates a protected property interest in students continued enrollment at a public university. So, expulsion certainly implicates a property interest.
  2. With respect to procedural due process dismissal for disciplinary misconduct and dismissal for academic underperformance get different treatment. Dismissal for disciplinary misconduct is entitled to a higher degree of due process.
  3. A decision is disciplinary when the University engages in first level fact-finding to resolve a disputed objective question about the student’s conduct, and the outcome of that inquiry could lead to the student’s dismissal or a long suspension. In other words, a disciplinary inquiry involves a factual determination about whether the conduct took place or not.
  4. Since no case from the United States Supreme Court or the Sixth Circuit has held that cheating is a disciplinary matter mandating more robust procedures under the due process clause, personal liability under §1983 is not in play because the constitutional rights were not clearly established when the violation occurred.
  5. Since qualified immunity only applies to damages, the declaratory relief and injunctive relief actions can still go ahead.

IV

What Does Due Process in a Disciplinary Matter Look like

  1. A student has a right to be present for all significant portions of the hearing when the hearing is live.
  2. When the hearing is not live, the University must provide the accused with the opportunity to respond, explain, and defend.
  3. Student must be allowed in the room while the other side presents their case to the disciplinary panel.
  4. The University must provide the student with an explanation of the evidence against him or her.
  5. Evidence to be presented to the panel by the school must be shared with the student prior to the presentation to the panel.
  6. The school would be wise to ensure that a full airing occurs and that evidence is not accepted uncritically, such as the memo from the Chief Officer of Student Affairs that was hotly disputed by Endres and his doctors.

V

Takeaways

 

  1. We have written about statute of limitations in ADA cases before, such as here and here. This case talks about the discovery rule. Here, this case holds that the statute of limitations begin to run once a final decision is made and the person did not have an expectation that a final decision could have been made or was made any earlier.
  2. Only public schools have to worry about constitutional procedural due process for their students. However, as a matter of preventive law, schools may want to consider a similar process anyway regardless of whether they are a public school.
  3. A full airing of grievances with lots of due process does two things. First, it allows the student to feel better by being allowed to present his or her side of the story fully. Second, a court is more likely to back up the school the more due process given.
  4. Qualified immunity is basically a one off because once the court says that the law was not clear at a certain moment in time, the law is then clear after that moment in time.
  5. Since virtually all institutions of higher education take federal funds and have 15 or more employees, the Rehabilitation Act final implementing regulations requires schools to have an ADA/504 coordinator and an ADA grievance procedure. Public entities are required by the final implementing regulations of title II of the ADA to have an ADA coordinator and an ADA grievance procedure if they have 50 or more employees.
  6. Just because a school’s handbook says that something is academic misconduct does not transform a disciplinary matter into a dismissal for academic reasons. The critical question is whether University is engaging in first level fact-finding to resolve a disputed objective question about whether the student’s conduct occurred.
  7. Consider not having the person from the school who presents evidence to the disciplinary panel be in the room when the panel deliberates.
  8. The student had a gift for legal advocacy and/or was ghosted by a very competent attorney. While schools have different rules on whether an attorney can be involved in such processes, nothing prevents a student from working with an attorney to make sure he or she is putting forward the best case possible. The earlier the student involves competent counsel, the more likely the student will be able to put his or her best case forward.
  9. From a student’s perspective, early disclosure of a disability is better. If medications or a disability mean a school may misinterpret what it sees, a student should put the school on notice of that to avoid problems later.
  10. It’s harsh to force a person to repeat an entire year when just one class was failed, especially when exigent circumstances exist. Make sure policies exist on when a full repetition of classes will occur and that such policies are followed consistently.
  11. From a student’s perspective, if medicine you need has been working but no longer is, don’t just stop taking it. Instead, head to a physician to figure out alternatives.
  12. If taking a test in the seating is disruptive, the student should immediately take action at that time by alerting appropriate personnel.
  13. The earlier disability services is approached in a student’s studies, the easier it is to not have people make assumptions later.
  14. Qualified immunity only applies to damages. It doesn’t apply to declaratory relief and injunctive relief actions. Whenever you have attorney fee shifting statutes, prevailing on declaratory relief or injunctive relief still nets the plaintiff attorney fees.
  15. Based on this opinion, plaintiff seen to be in a good position for prevailing on his due process claims with respect to his declaratory relief and injunctive relief claims.
  16. Under this decision, academic matters get lower due process then disciplinary matters. However, as a matter of preventive law, the more due process given by the University upfront, the more defensible any such decisions are in court later.