Airplane

 

peacock
On a plane?

 

On a plane?

Last week, I had the opportunity to attend the Olmstead at 20 conference held at Georgia State law school here in Atlanta Georgia. Hats off to Susan Goico who led the organization of the conference. It brought together leading people from all over the country who are doing the work of disability inclusion. It was absolutely fabulous, and I met a lot of great people. Some of whom I had already knew and had been in touch with, but had never met. Congratulations again for a great conference.

 

With respect to how I go about finding something to blog on, sometimes my pipeline runs really low. Sometimes, I get a whole bunch of things in my pipeline at once, and then I have to figure out which one to blog on. Today’s blog entry is one of those situations where a whole bunch of things wound up in my pipeline at once. After reviewing my pipeline and seeing what the legal blogosphere is up to, I felt I had no choice but to blog on the final statement of enforcement priorities regarding service animals issued by the Department of Transportation last week. My colleague, Richard Hunt, has already done a blog on this here. His blog entries are always provocative. He does go over what the rules say, and so much of what I say in this blog entry will overlap. Of course, my perspective is always very different. So here goes. My thoughts are contained throughout. That said, ¶ ¶ 20-22 contain entirely my thoughts.

 

  1. The guidelines are voluntary. Well, not really. That is, this an enforcement guidance. So, it telegraphs to the airlines exactly how the Department of Transportation will proceed if it gets a complaint. Therefore, airlines would be wise to adjust accordingly, and DOT says as much in the guidance document. The voluntary part of it comes from understanding this blog entry, where we discussed Kisor v. Wilkie. As discussed there, Auer deference is barely hanging on. Since this document is a guidance and not formal rulemaking, it is anybody’s guess as to what kind of authority this document will be given. As such, compliance with this document is voluntary. Of course, failure to comply with the document will expose that particular airline to enforcement action. If the airline chooses to fight that despite having notice at to what the Department of Transportation is going to do, it will be up to the airline to convince a court that Auer deference is not warranted in this situation.
  2. The guidance still makes what I feel is an arbitrary distinction between service animals for those with physical disabilities and service animals for those with psychiatric disabilities. The DOT responded to that by saying it would have to take rulemaking (a plan to issue a notice of proposed rulemaking will be forthcoming at some point), to change that since the regulations themselves have that distinction. In the meantime, I do believe DOT regulations making a distinction between psychiatric service animals and service animals for those with physical disabilities are arbitrary and in violation of the Administrative Procedure Act. I do understand why the DOT felt constrained not to change the distinction in this guidance. It is pretty clear from our blog entry discussing the current state of Auer deference that the DOT could not make such a change in a guidance. Rather, such a change will have to come from rulemaking. I do understand why a rational distinction could be made between a psychiatric service animal, a service animal for those with physical disabilities v. an emotional support animal. That said, putting together in one category psychiatric service animals, which go through an incredible amount of training, and an emotional support animal, which may have little or no training at all, makes little sense and to my mind and is completely arbitrary. Viewing the regulations in a historical context, I suppose I can see how the distinction evolved. However, we know a lot more about psychiatric service animals and service animals assisting people with disabilities than we did back then. The distinction between psychiatric service animals and service animals for those with physical disabilities is simply untenable.
  3. The guidance uses the terminology of service animal, ESA (emotional support animal), and PSA (psychiatric service animal). However, while most of the time in the guidance DOT uses “service animal,” to cover a situation of a service animal for a person with physical disabilities, at other times it uses the term “service animal,” as a catchall category for service animals, ESA’s and PSA’s. That doesn’t help anything. It just really makes things confusing.
  4. What wound up being this document received 94 comments, mainly from disability rights advocates and the airlines.
  5. DOT will prioritize ensuring that the most commonly recognized service animals (dogs, cats, and miniature horses) are accepted for transport. Airlines will not be subject to enforcement action if they continue to deny transport to snakes, other reptiles, ferrets, rodents, and spiders. However, categorical refusal to transport other animals or species will subject airline to potential enforcement action. The emphasis here is, “categorical.” DOT also notes that an animal regardless of its kind it is can be barred from a flight depending on a variety of factors, two large; to heavy; poses a direct threat to the health or safety of others; or would cause a significant disruption in cabin service.
  6. A single individual can travel with up to a total of three animals. The animals can be a combination of one emotional support animal and then a psychiatric service animal and/or what DOT calls a service animal. Airlines cannot put a limit on the total number of service animals/ESA on any flight.
  7. Airlines cannot limit the number of passengers with a disability on a particular flight.
  8. DOT will focus its resources on ensuring that airline do not require advanced notice for passengers with physical disabilities traveling with service animals unless the flight segment is for eight hours or more. The current regulations allow for advanced notice to be required with respect to emotional support animals and psychiatric service animals. DOT admits that the current regulations discriminate against passengers with psychiatric disabilities, but reserves that issue for future rulemaking.
  9. Airlines can continue to seek credible verbal assurance that the passenger is an individual with a disability and that the animal is a service animal by asking a variety of questions. Those questions include question directed to the passenger’s need for service animal. For example, one question could be, “how does your animal assist you with your disability?” This sounds good in theory, but I have trouble understanding how this gets carried out as a practical matter, especially in the context of an animal flying on a plane.
  10. Verification of the animal as an emotional support animal or psychiatric service animal in the lobby is perfectly okay but not for service animals assisting people with physical disabilities. DOT regulations require ESA and PSA users to check in one hour before the check-in time for the general public. DOT does say they intend to take action against airlines requiring passengers with physical disabilities using a service animal to check in at the lobby of an airport.
  11. DOT does not intend to take action against an airline asking service animal user to present documentation relating to a service animal’s vaccination, training, or behavior, so long as it is reasonable to believe that the documentation will assist the airline in determining whether an animal poses a direct threat to the health or safety of others. That said, DOT admits that the regulations are unclear as to whether the regulations are violated if an airline requires additional documentation to determine whether a service animal poses a direct threat. Not helpful is that direct threat isn’t defined. In ADA parlance, we know what a direct threat is, and we have discussed that many times, such as here. However, when you are dealing with an individual traveling with an animal on an airplane in a highly stressful situation, trying to figure out whether that animal might be a direct threat has to be an extremely difficult endeavor.
  12. DOT does not intend to take action against airlines asking ESA or PSA service animal users to present such documentation of vaccination, training, or behavior up to 48 hours before his or her flight. That said, airlines need to be careful that the documentation requirements are not being used to prevent passengers with disabilities from traveling with their service animals. That is, another way to think about it, is that DOT will be watching to see whether such policies screen out people with disabilities.
  13. With respect to controlling a service animal for those with physical disabilities, an ESA, or a PSA on the plane, tethering and similar means of controlling an animal permitted by the ADA are one reasonable means of controlling service animals in the aircraft cabin. Other thing to be thinking about with respect to reasonableness include: the size and species of the animal; the rights of other passengers to enjoy their own foot space; and the continued ability of the animal to provide emotional support or perform a task while being restrained if kept in a pet carrier.
  14. Breed restrictions are out. That is, Delta Air Lines recently put in a policy saying pit bull type dogs cannot fly on flights. DOT says airlines can’t do that as evidence doesn’t exist that an animal poses a direct threat simply because of the kind of breed it is. DOT continues to stand by its June 22, 2018 public statement from its enforcement office that a limitation based exclusively on breed of the service animal is not allowed under the Air Carrier Access Act and such restrictions are inconsistent with current regulations. On the ADA side, we already know from this blog entry, that breed restrictions are out.
  15. Airlines are perfectly within their rights to ban the transport of service animals for those with physical disabilities, ESA’s, and PSA’s that are younger than four months as the training service animals have to go through takes time.
  16. Refusal of an airline to accept ESA’s or PSA’s over 65 pounds won’t wash and is prohibited by the regulations. DOT notes that airlines have other means of ensuring safety for large animals aside from banning them outright. For example, DOT regulations already allow an animal to be excluded if it is too large or too heavy to be accommodated in the specific aircraft at issue. Even so, a categorical ban is out.
  17. DOT regulations clearly prohibit a policy of not accepting PSA’s on flights lasting eight hours or more. That said, airlines can require 48 hours advance notice and check-in one hour before the check-in time for the general public in order to accommodate any service animal on a flight scheduled to last eight hours or more.
  18. Requiring that medical forms found on the airlines own website be the only forms that can be accepted for purposes of approving an ESA or PSA is out. That is, airlines may ask or encourage a passenger to request that a licensed mental health profession or treating the passenger fill out the airline’s own proprietary medical forms. However, if a different form is submitted meeting the requirements set forth in the regulations, airlines cannot reject the request for a PSA or an ESA.
  19. DOT regulations are violated where an airline requires an owner of a service animal for a person with a physical disability to present documentation related to that animal’s vaccination, training, or behavior before the check-in time for the general public. Such conduct violates the advanced notice provisions of the DOT regulations and DOT will seek enforcement action.
  20. Seems to me that this enforcement guidance tries to have it every which way. As a result, it just confuses the issue. It doesn’t help that DOT uses the term “service animal,” in two different ways throughout the document. The guidance is helpful in some respects and not helpful at all in other respects. As a practical matter, it is going to make the jobs of airlines much more difficult. It also continues the entirely unsupportable distinction between psychiatric service animals and service animals for those with physical disabilities. I understand why DOT thought that it could not erase that distinction because a guidance is not formal rulemaking, but nevertheless, the distinction is entirely arbitrary and simply not supportable.
  21. It isn’t a cure-all to say that the DOT by regulation should only allow psychiatric service animals and service animal for those with physical disabilities to fly on airplanes and completely eliminate emotional support animals. Even there, how would such a system be put in place to ensure that the animal was a service animal? For example, one would have to be careful that such a system would not eliminate the ability of an individual to train the animal to be a service animal.
  22. While we are comfortable with the concept of direct threat in terms of ADA matters, figuring that out for an animal about to fly on an airplane would have to be an extraordinarily difficult thing to do. It is entirely possible that an animal may never be a direct threat outside of flying on an airplane, but could be on the airplane itself because flying on an airplane is such an unusual and stressful situation. In fact, it is entirely possible that the owner of the animal itself, particularly where an ESA is involved, wouldn’t even know. That said, I do know places training service animals to assist those with physical or psychiatric disabilities will, oftentimes if not invariably, as part of their training, have the animals fly on airplanes. I don’t know if every place that does training for psychiatric service animals or service animals for those with physical disabilities take that step with respect to training their animals, but I do know that many, if not all, do.

School is coming up for many. Here in Atlanta, many started August 1 if not the Monday of that week. By the end of this week, just about everybody in metro Atlanta will have started school. My daughter started her second year of high school on August 1. So, this week is her first full week of her sophomore year. Good luck to everybody who has kids starting school.

Our case of the week, Tauscher v. Phoenix Association of Realtors Inc. (the defense does business at the Phoenix Association of Realtors), recently decided by the Ninth Circuit, which can be found here242, is a big win for the culturally deaf, i.e Deaf. It comes out of the Ninth Circuit and it involved a culturally deaf individual who is a licensed realtor who was unable to procure an ASL interpreter for continuing education classes. As usual, our blog entry is divided into categories and they are: facts; court’s reasoning; and takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

Plaintiff has a profound hearing loss and cannot hear sounds less than 90 dB, which is about as loud as a lawnmower. He cannot hear in conversational settings and does not use lip reading to understand speech. He also cannot effectively communicate with others by means of spoken words. His primary and best form of communication is ASL. Even so, plaintiff has a BA degree in biomedical photographic communication and an MBA. He works full-time for Sprint as a branch manager for product development and is also a licensed real estate salesperson in Arizona.

The Phoenix Association of Realtors is a trade association for real estate professionals selling real property in the Phoenix metropolitan area. It has 12 employees. Its membership has ranged over the years from 7,600 to 13,000 dues paying members. It offers a variety of programs and services for its members, including seminars that fulfill continuing education requirements set by the Arizona Department of Real Estate. Historically, the Phoenix Association of Realtors has charged only a nominal amount for those seminars, and the revenue from those seminars it generally less than the seminars cost.

Plaintiff registered for continuing education course that the Phoenix Association of Realtors scheduled for February 13 and 14 of 2013. His registration fee was $20. In September of 2012, plaintiff contacted the Phoenix Association of Realtors Chief Executive Officer to ask them to provide an ASL interpreter for the course. She declined to provide an ASL interpreter and instead offered him the use of an FM loop system amplifying sound. Plaintiff rejected that explaining that such a system would not provide effective communication for him because of the extent of his hearing impairment. They did discuss the possibility of closed or open captioning, but the conversation ended without any agreement.

In early of February 2013, the Phoenix Association of Realtors responded to plaintiff’s request for an auxilliary aid or service in a letter prepared by their attorney. It rejected plaintiff’s request for an ASL interpreter on the grounds that the Phoenix Association of Realtors did not have the resources to provide an ASL interpreter and that it would be an undue burden on the organization. Instead, the Phoenix Association of Realtors proposed: 1) plaintiff could attend the class and utilize lip reading and in that eventuality, the instructor would be made available for questions at breaks and lunch; plaintiff could bring another real estate agent who is willing to sign doing and they would provide the instruction and credit free to that person; or plaintiff could fulfill the continuing education requirement by taking online courses. Plaintiff and the Phoenix Association of Realtors could not reach an agreement. They then refunded plaintiff’s registration fee.

In October 2014, plaintiff registered for another course and once again asked for an ASL interpreter. The Phoenix Association of Realtors refused and proposed instead to make the instructor available for questions at break and lunch. They subsequently canceled plaintiff’s registration for the course. Plaintiff then filed a claim in the District Court alleging that the Phoenix Association of Realtors violated the ADA and the Arizonans with Disabilities Act.. When the District Court granted summary judgment for the defendant, plaintiff appealed.

 

II

Court’s Reasoning

 

  1. Nobody disputes that plaintiff is an individual with the disability or that the Phoenix Association of Realtors is a place of public accommodations and that its seminars are places of public accommodations.
  2. Applicable regulation, 28 C.F.R. §36.303225(a), require that a place of public accommodation take those steps necessary 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 ancillary aids and services. A place of public accommodation can only get out of that obligation if it can demonstrate that taking those steps either fundamentally alters the nature of the goods, services, facilities, privileges, advantages, or accommodations being offered or results in an undue burden.
  3. A place of public accommodation also must furnish appropriate axillary aids and services when necessary to ensure effective communication with individuals with disabilities. 28 C.F.R. §36.303(c)(1).
  4. Auxiliary aids and services include qualified interpreters, real-time computer aided transcription services (I happen to use this one all the time), assistive listening devices (I also use these quite a bit), and a range of additional measures. 28 C.F.R. §36.303(b)(1).
  5. The regulations also contain a general provision saying that any other effective method of making orally delivered information available to individuals who are deaf or hard of hearing is also in play.
  6. A place of public accommodation cannot require an individual with a disability to bring another individual to interpret for him or her. 28 C.F.R. §36.303(c)(2).
  7. While a place of public accommodation should consult with individuals with disabilities whenever possible to determine what type of auxiliary aid needed to ensure effective communication, the regulations implementing title III of the ADA makes clear that the ultimate decision as to what measures to take rests with the place of public accommodation providing that the method chosen results in effective communication. 28 C.F.R. §36.303(c)(1)(ii).
  8. A genuine issue of material fact existed as to whether plaintiff was offered an effective means of communication.
  9. While it is true that plaintiff was offered several different measures, many of those measures clearly were not effective means of communication. In fact, the Phoenix Association of Realtors admits that the FM loop system was not an effective means of communication for the plaintiff.
  10. Several of the other alternatives did not constitute an effective means of communication either as a matter of law. The regulations provide that a public accommodation may not require individuals with a disability to provide their own interpreter. So, defendant’s suggestion that plaintiff bring a friend to the class to interpret for him does not meet the defendant’s obligation to provide effective communication. For that matter, taking online classes instead of participating in the live classroom setting is also as a matter of law not effective communication because the regulations provide that individuals with disabilities cannot be segregated or otherwise treated differently than other individuals because of the absence of artillery aids and services. 28 C.F.R. §36.303(a). Finally, asking the plaintiff to rely on lip reading also fails as a matter of law because the plaintiff provided evidence that he was a poor lip reader.
  11. A genuine issue of material fact exists at the whether the defendant offered to provide a captioning system. While the defendant argues on appeal that captioning would have been an effective means of communication, evidence in the record exists that the defendant never offered the plaintiff that option. Instead, the CEO testified at her deposition that that option was not offered to the defendant because they had already concluded that such an accommodation was too costly and therefore, not feasible. Plaintiff also said that captioning would not be effective because he was not proficient in English.
  12. Defendant attempted to argue that plaintiff loses because plaintiff broke down the interactive process. However, the court wasn’t buying it for the reasons that follow below (¶ ¶ 13-15).
  13. The ADA does not make the interactive process requirement applicable to places of public accommodations and services. In fact, title III and its final implementing regulations make no mention of an interactive process mirroring the process required in the employment context.
  14. While the title III regulation do say that a place of public accommodation should consult with individuals with disabilities whenever possible in order to determine what type of auxiliary aid is needed to ensure effective communication, the place of public accommodation itself is independently responsible for making the ultimate decision as to what measures to take.
  15. There is no basis for holding that a place of public accommodation is relieved of its obligation to provide appropriate auxiliary aids and services if the individual requesting such managers fails to engage in good faith declaration of what measures would provide effective communication. Defendant did not cite any precedent on point and as far as the Ninth Circuit could tell there were none. So, defendant is not discharged up its obligation to ensure effective communication merely because the plaintiff did not engage in further discussion with it regarding measures other than an ASL interpreter. (Emphasis mine).
  16. Defendant also argued that an undue burden was involved, but the Ninth Circuit was saying questions of fact existed on that one as well as discussed by the court in the remaining paragraphs of this section.
  17. The ADA regulations define “undue burden,” in terms of, “significant difficulty or expense.” That determination takes into account a range of factors relating to the cost of the action compared to the financial resources of the place of public accommodation. See 28 C.F.R. §36.104226. Determining whether an action places an undue burden on a place of public accommodation requires a holistic analysis of the financial resources available to the place of public accommodation, including its profits and operating expenses as well as the nature and frequency of the expense.
  18. The question of whether providing an ASL interpreter results in an undue burden raises complex issues that the trial court is better able to handle in the first place. That is the case especially here. The defendant argues that it charges only a $20 registration fee for its courses, but the cost of an ASL interpreter for the February 2013 course would have been between $1680 and $3360. On the other hand, plaintiff point to evidence in the record that the overall value of the Phoenix Association of Realtors assets in cash or cash equivalents was $839,606 at the end of fiscal year 2014 and $1,099,152 at the end of fiscal year 2013. Accordingly, the District Court has to consider whether a genuine issue of material fact exists with respect to undue burden.

 

III

Takeaways

  1. The interactive process is a title I requirement. However, it is always a good idea as a matter of preventive law for an entity to engage the person with a disability in the interactive process. If nothing else, it may prevent litigation in the future because the person with the disability, assuming the process is collaborative and not adversarial (see this blog entry227), will feel respected. That said, it is extraordinarily significant that the Ninth Circuit says that an entity’s effective communication obligation goes beyond the interactive process. That is, even if a plaintiff breaks down the interactive process or it doesn’t engage in it, the effective communication obligations of a title III entity still exists.
  2. Many culturally deaf and hard of hearing individuals are lousy lip readers. Also, even the best lip reader, which I put myself in that category, can only get 50% of what is on a person’s lips.
  3. When it comes to the deaf and hard of hearing, no two people work the same way. In my situation, there are many time where an FM system with noise canceling headsets will work for me. However, I know many people who wear high-powered hearing aids for whom absolutely no headset will work for them at all. For people who were cochlear implants, headset never work for them.
  4. Just don’t ask a person fluent in ASL to bring their own interpreter. Just don’t. See also this blog entry228.
  5. The case is also interesting because the Ninth Circuit says that certain accommodations fail as a matter of law given a particular set of circumstances. So, always do an individualized analysis.
  6. I have said many times in our blog, that undue burden is a very difficult defense to pull off. On the plaintiff side, consider one of your interrogatories being an inquiry as to whether the undue burden defense will be asserted, and if so, requesting the detailing of their overall financial situation. The advantage for a plaintiff doing this in an interrogatory is that it could foreclose the undue burden defense because many defendants do not want to disclose their overall financial situation to the plaintiff (the title III regulations do say that undue burden is measured against the overall financial resources of the place of public accommodation.
  7. Expect this case to have a huge impact in favor of the Deaf/deaf and HOH community. I am personally aware of deaf/Deaf/HOH attorneys that have had problems getting the kind of accommodations they need from continuing education providers. On occasion, I have even run into that myself. See also this blog entry229, which is also mentioned above.
  8. Separating out a person with a disability from what is offered to people without disabilities is a very dangerous approach, is probably not defensible, and certainly increases the risk of litigation. See this blog entry for example230.
  9. When it comes to legal counsel, make sure your legal counsel is knowledgeable about the ADA.

Today’s blog entry is a two-for-one. First off, with respect to being late this week, my daughter started her second year of high school today. So, this week was her last week of summer break, and as you can imagine, things were pretty hectic around here. But, we are now back to the school routine.

Turning to the blog entry of the day, as mentioned above, it is a two-for-one. First, the blog will explore the issue of whether obesity is a disability. We will explore a very interesting case from the State of Washington. Second, what happens if you have a legislator with a disability who can’t get to the same starting line as a legislator without a disability due to another legislator refusing to accommodate him. What title of the ADA does that legislator turn to. As usual, the blog entry is divided into categories and they are: background with respect to whether obesity is a disability; Taylor facts; Washington Supreme Court’s reasoning that obesity is always a disability under Washington law; Taylor takeaways; what’s going on in Wisconsin? Introduction; and let’s break this down. Of course, the reader is free to focus on any or all of the categories.

I

Background with Respect to Whether Obesity Is a Disability

In Taylor v. Burlington Northern Rail Holdings, Inc., The Washington Supreme Court received a certification request from the Ninth Circuit with respect to whether under Washington law obesity was a disability. People who follow the ADA know whether obesity is a disability under the ADA is complicated. The courts aren’t unanimous on it. However, the majority view in a big way is for obesity to be a disability under the ADA, there must be an underlying physical or mental impairment. Absent an underlying physical or mental impairment, a person with obesity is not a person with a disability under the ADA. This case raises a very important point that States often have their own antidiscrimination laws. Those laws may look at things very differently from the ADA.

II

Taylor Facts

In 2007, Taylor received a conditional offer of employment as an electronic technician from the defendant. The offer was contingent on a physical exam and a medical history questionnaire. The physical exam found that Taylor met the minimum physical demands of the essential functions of an electronic technician. However, the medical exam found that Taylor’s height was 5’6” and weighed 256 pounds resulting in a BMI of 41.3. Since a BMI over 40 is considered severely or morbidly obese, the defendant treated that as a trigger for further screening in the employment process. As a result, his results were referred to defendant’s chief medical officer who told Taylor that they were unable to determine whether he was medically qualified for the job due to significant health and safety risks associated with extreme obesity and uncertain status of knees and back. The defendant offered to reconsider if Taylor paid for expensive medical testing, including a sleep study, bloodwork, and an exercise tolerance test. The defendant also told Taylor that it was company policy to not hire anyone having a BMI over 35 and that if he could not afford the testing, his only option was to lose 10% of his weight and keep it off for six months. Taylor could not afford the testing because he was unemployed and did not have medical insurance or VA benefits. So, he filed suit in Washington State court and the suit was removed to federal court. At the federal court level, the judge relied on the majority rule with respect to obesity and found that Taylor was not a person with a disability under the ADA because he could not show that the obesity was caused by a physiological condition or disorder or that the defendant perceived the plaintiff’s obesity as having such a cause. On appeal to the Ninth Circuit, the Ninth Circuit stated that whether obesity was a disability under Washington State law was unresolved and certified the question to the Washington Supreme Court. The Washington Supreme Court accepted that certification.

III

Washington Supreme Court’s Reasoning That Obesity Is Always a Disability under Washington Law

  1. Washington law makes it an unfair practice for an employer to refuse to hire any person because of the presence of any sensory, mental, or physical disability unless based upon a bona fide occupational qualification.
  2. Washington law defines a disability as a sensory, mental, or physical impairment that: 1) is medically cognizable or diagnosable; or 2) exists as a record or history; or 3) is perceived to exist whether or not it exists in fact.
  3. Under Washington law, a disability can be temporary or permanent, common or uncommon, mitigated or unmitigated and can exist regardless of whether it limits the ability to work generally or at a particular job, or limits any other activity.
  4. What is an impairment under Washington law is either of the following: 1) any physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more the following body systems: neurological, musculoskeletal, special sense organs, respiratory, including speech organ, cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and endocrine; or 2) any mental, developmental, traumatic, or psychological disorder, including but not limited to cognitive limitation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.
  5. The debate is over whether obesity is a physiological disorder or condition under Washington law.
  6. The Washington Human Rights Commission has said that a person is considered disabled by a sensory, mental, or physical condition if he or she was discriminated against because of the condition and the condition is abnormal.
  7. In a prior case, the Washington Supreme Court has said that an employee is disabled if they have a sensory, mental, or physical a abnormality and such abnormality has a substantially limiting effect upon the individual’s ability to perform his or her job.
  8. In response to previous opinions of the Washington Supreme Court, the Washington legislature in amending Washington law expressly found that the Washington Law against Discrimination affords residents of Washington protections independent of those afforded by the ADA and that those protections existed for many years prior to the advent of the ADA. In making those changes the legislature chose to define disability very broadly including explaining that impairment includes but is not limited to any physiological disorder or condition affecting one or more body systems.
  9. In a case such as this, all plaintiff need to show is the employer perceived the employee as having an impairment.
  10. The medical community recognizes obesity as a primary disease. The medical evidence shows that obesity is always an impairment because it is a physiological disorder or condition affecting one or more body systems.
  11. Obesity qualifies as an impairment that is physiological because it involves the organic process and phenomena of an organism-the excessive accumulation of fat cells.
  12. The medical community recognizes obesity as a disorder.
  13. Just because obesity is often diagnosed by measuring weight doesn’t mean that it is not a physiological disorder affecting body systems.
  14. Overwhelming consensus in the medical community is that obesity is a disease in and of itself.
  15. Obesity satisfies the AMA criteria for labeling something a disease. That recognition of obesity as a disease is supportive of the conclusion obesity is a physiological disorder under the Washington statute.
  16. While the Washington statute does not define disorder, Webster’s does. A disorder under Webster’s is a derangement of function and an abnormal physical or mental condition. A disease fits within that definition.
  17. While the Washington legislature did not provide a definition of “condition,” the Washington Human Rights Commission did. According to Washington Human Rights Commission a condition is a sensory, mental, or physical disability if it is an abnormality and is a reason why the person having the condition did not get or keep the job in question. The Human Rights Commission definition of “condition,” has to be given great weight since the Human Rights Commission is responsible for administering the Washington law against discrimination. The Washington Court of Appeals has previously adopted the Human Rights Commission view of what a condition is.
  18. While the Human Rights Commission doesn’t define the word abnormal, the medical evidence shows obesity is an abnormal condition. The AMA has stated that obesity is a disease involving abnormal energy balance and abnormal endothelial function resulting in metabolic abnormalities even after weight loss.
  19. The medical evidence also shows that obesity itself affects one or more body systems including neurological, musculoskeletal, special sense organ, respiratory, including speech organ, cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and endocrine. In particular, Amicus brief described in detail just how obesity itself affects the cardiovascular or circular system, the musculoskeletal system, the lymphatic system, and the endocrine system.
  20. The court had trouble understanding how finding obesity is a disability would produce more psychological harm than is already caused by companies freely and openly refusing to hire people because of their obesity. Obesity after all leads to social, economic, and psychological problems as a result of prejudice, discrimination, poor body image, and low self-esteem. Oftentimes, obese people are underemployed or unemployed.
  21. Washington Law against Discrimination must view the definition of impairment broadly in order to effectuate the purposes of that law.
  22. Washington Law against Discrimination is broader than the ADA and offers its own independent protection to Washingtonians.

IV

Taylor Takeaways

  1. When it comes to disability discrimination, the ADA isn’t the end-all and be-all, though it is in Georgia. It is not unusual for States to have their own antidiscrimination laws when it comes to people with disabilities. Those laws may extend coverage to employers of less than 15 or more. Those laws also may define disability very very differently. Finally, those laws may have different remedies associated with them. Accordingly, the ADA is only one thing to look at. You have to look at state law as well.
  2. Washington Law Against Discrimination defines disability very differently from the ADA. While impairment under Washington law, judging from the case, appears to resemble the ADA, the other part of the definition of a disability is quite a bit different as it talks about whether the mental or physical impairment or sensory impairment is medically cognizable or diagnosable. That makes things considerably broader than the ADA in its scope of coverage.
  3. Did I mention that I am not an attorney licensed in Washington. When it comes to state antidiscrimination laws affecting people with disabilities, always be sure to find an attorney who can interpret that state law for you. Generally, that means an attorney licensed in the applicable State.
  4. Will you now see a movement by the legislators in Washington to change the definition of disability under the Washington Law against Discrimination to something more similar to the ADA. As mentioned above, “impairment,” in Washington law is quite similar to the ADA. It is the disability part that is considerably different. I don’t know what the answer to this question is, but it wouldn’t surprise me if you see an effort to amend the Washington Law against Discrimination to match the ADA.
  5. Two problems with this case are that the Washington Supreme Court doesn’t really define what obesity is. It just assumes obesity is a BMI over 40. Also, the Washington Supreme Court says that obesity is always a disability and that it never depends. The decision that obesity is always a disability and never depends is what drove Justice Yu to dissent. His view is that obesity should not be a per se rule but should be based upon an individualized inquiry as such an approach fits better with how disability discrimination statutes, such as the ADA, generally work.
  6. Those who are followers of Chevron deference matters, can see that the Washington Supreme Court essentially adopted that approach with respect to how the Human Rights Commission defined various terms. Note, that the Human Rights Commission had specific authority from the legislature to implement the Washington Law Against Discrimination.

V

What’s going on in Wisconsin?: Introduction

In Wisconsin, there is a legislator who uses a wheelchair. The story can be found here. Basically, the legislator is a Democrat who uses a wheelchair and a personal attendant is necessary many times. There are time because of his health and the lack of an ability to find a personal attendant that it makes sense for him to be able to dial in or use videoconferencing to attend some of his obligations. The chair is a Republican and is refusing to allow that accommodation and insists upon the legislator being personally there. I have seen the article pop up in several different places on the Internet. What is interesting, is that the article never seem to take into account title II of the ADA. Some of the articles that I have read said that if the legislator was an employee, then title I applies, but since he is a legislator all bets are off.

VI

Let’s Break This down.

One of the things I have consistently seen over the years, is ADA knowledge is quite high among attorneys practicing in title I of the ADA. On the plaintiff side, you will find attorneys who litigate on behalf of plaintiffs with respect to employment discrimination claims involving persons with disability. The defense bar responding to those lawsuits is generally quite knowledgeable and not afraid to retain people, such as myself, who are knowledgeable if requisite knowledge is lacking. The defense bar also gets involved in counseling employers on disability discrimination matters. However, once you move into title II and title III of the ADA, the knowledge base among attorneys goes way down. What is wild about this situation is that title I and title II are involved at the same time. It is rare you see that. In fact, I have only seen it once; many years ago, when I consulted on such a case.

With respect to title I, assuredly the Democratic legislator is being paid for his efforts. Who is the entity paying him? It is probably the State of Wisconsin. Surely, the State of Wisconsin or whatever entity is paying him has more than 15 employees. So, the entity that is paying him has independent ADA obligations to ensure that one of their employees receives reasonable accommodations for his or her disability. As we have mentioned too many times to count, under title I of the ADA, accommodations must be made unless an undue hardship is involved. Undue hardship can either be financial or logistical. As we have also mentioned previously, financial hardship is very difficult to show as you look to the overall governmental resources and not to the budget item. For undue hardship in the logistical sense, readers of the blog know to think in terms of fundamental alteration. I don’t see how either applies to the case of the Democratic lawmaker seeking the ability to dial in or to videoconference. Of course, you have the question of whether the Democratic legislator is a qualified person with a disability. I don’t see how that is an issue here. Clearly, the Democratic lawmaker has a disability. By virtue of being elected, he has the requisite skill, experience, etc. to be a legislator. The question then becomes can he do the job with or without reasonable accommodations. He has recommended accommodations and has been turned down. So, whoever is employing the Democratic legislator has a problem on their hands with respect to the actions of the Republican chair. At a minimum, an interactive process should ensue to see if everyone can get to a win-win. Of course, I’m assuming that legislators and Wisconsin are employees in the first place and not independent contractors. If by some chance legislators in Wisconsin are actually independent contractors, I don’t see how that is possible but even so…, Then the Democratic legislator would still have claims under title II of the ADA and §504.

It doesn’t end there. With respect to title II, there may be a claim there as well. After all, a public entity is involved. We are also talking about accessing the programs, services, and activities of a public entity, i.e. legislative proceedings. Under title II of the ADA, reasonable accommodations have to be made unless you are dealing with an undue hardship or a fundamental alteration. As we have discussed previously many times, undue hardship and undue burden mean the same thing. Fundamental alteration is essentially logistical undue hardship. For the reasons mentioned above, I don’t see how either undue burden or fundamental alteration work as a defense in this situation. Again, you have the question of whether the Democratic legislator is a qualified person with a disability. Whether a person is a qualified person with a disability under title II of the ADA has a different definition than in title I of the ADA. Again, the Democratic legislator gets by this hurdle rather easily. He is, as mentioned above, a person with a disability. As for being qualified, he also meets the essential eligibility requirements of the program, activity, or services as well, i.e. he is qualified to be a state legislator and to participate in all legislative proceedings with or without reasonable accommodations. So, bottom line, the Democratic legislator has both a title I claim and a title II claim against the entity paying both him and the chair. With respect to title I, it is entirely possible that the S grin tate of Wisconsin may be able to claim sovereign immunity per Board of Trustees of the University of Alabama v. Garrett. However, the state of Wisconsin is going to have a much harder time claiming sovereign immunity with respect to our Democratic legislator’s title II claim as we are talking about legislative activities. See this blog entry. Also, since federal funds are undoubtedly involved as well, our Democratic legislator probably has a §504 claim as well. In many jurisdictions, receipt of federal funds waves sovereign immunity under §504.

In short, the chair and the entity paying the chair and the Democratic legislator need to get together to engage in the interactive process so that the Democratic legislator can do his job with or without reasonable accommodations. Failure to do that could very well lead to title I, title II, and §504 claims. In addition, such a lawsuit would be horrible publicity. Finally, from the little facts we do know, such a lawsuit would have a high probability of success thereby forcing the state of Wisconsin to pay attorney fees for themselves as well as for the Democratic legislator. Finally, if the Democratic legislator were to be retaliated against for bringing the lawsuit, that would result in additional claims. The retaliation claims would then relate back to both title I and to title II as well as to §504. In that situation, whether damages would be allowed in the ADA claims, would depend upon the particular title of the ADA involved. That is, no damages for retaliation under title I per this blog entry, but damages upon a showing of the deliberate indifference (see this blog entry for discussion of deliberate indifference), for violating title II.

I am back from the Windy City. We had a good time. We did the family thing. We got some time to ourselves as well. The weather was not too bad.

 

Before moving on to the blog entry of the day, my wife and I are huge Queer Eye fans. A new season of the show dropped on Friday. We have been busily watching. An episode we just watched talked about an organization called disabled but not really, headed by a remarkable person who truly believes that becoming a person with a disability/disabled turned around his life in positive ways. I found the episode fascinating for viewing the psychology of, “disabled but not really.” As everyone knows, I am not a big fan of the word, “disabled.” Instead, I prefer a person with a disability. However, after watching this show, I certainly got another perspective on it. Also, as I have mentioned previously, preferring disability is a battle I am losing. That is, disabled is definitely winning out.

The case of the day deals with the question of what happens when you allege working as the major life activity. Or, when you allege a complaint in such a way that a judge reasonably thinks working is the major life activity plaintiff alleges. For a plaintiff, the answer to that question is not good. For readers of my books as well as my blog, none of this is surprising. From the very beginning of my first edition of Understanding the ADA, I have said alleging working as the major life activity is a big no-no. That point of view only became more emphatic after the amendments to the ADA. There is very little reason why a plaintiff needs to allege working as a major life activity considering all the possibilities now existing after the amendments. What is the big deal you ask? The big deal is that Sutton v. United Airlines was never overruled with respect to what you have to show if you allege working as the major life activity. Under that case, when you allege working as a major life activity, you have to show that the plaintiff is prohibited from performing in a broad class of jobs; a very difficult standard to meet.

The case of the day is Booth v. Nissan North America decided by the Sixth Circuit on June 7, 2019. The opinion can be found here. Understanding how this case came down means also looking at the complaint as well, which can be found here. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning; and takeaways. As usual, the reader is free to focus on any or all of the categories.

I

Facts

After the plaintiff started working at a Nissan factory in Tennessee, he injured his neck and sought medical treatment. His physician recommended several work restrictions, but the restriction did not sideline the plaintiff. In fact, he continue to work on the assembly line for about a decade without incident. In 2015, the work restriction became relevant once again, and he requested a transfer to a different position in the factory. Nissan denied that request because the position’s duties conflicted with plaintiff’s work restrictions. Soon after requesting the transfer, Nissan announced plans to restructure the assembly line. In particular, Nissan wanted to modify the line so that workers performed four jobs. The plaintiff alleged that two additional jobs Nissan assigned to him would have violated his work restrictions. Nissan then told him to see a physician to assess whether he still needed those restrictions. The plaintiff followed that request and the physician modified the restrictions and cleared him to work all four jobs. Although the plaintiff remains a Nissan employee, he claimed that Nissan failed to accommodate him by pressuring him to remove the work restrictions. While you won’t find it in the opinion, the complaint is critical to how the case came down. In particular, in the complaint, there is an allegation that the work restrictions limited at least one major life activity. Also, the complaint alleged that the plaintiff had a disability that interfered with major life activities and activities of daily living by way of his work restrictions.

II

Court’s Reasoning

  1. Plaintiff’s allegations against Nissan are time-barred because the denial of the transfer request occurred more than 300 days before filing his EEOC complaint.
  2. The amendments to the ADA did not modify the definition of the major life activity of working as set forth in Sutton.
  3. A plaintiff alleging a work-related disability is still required to show that her impairment limits her ability to perform a class of jobs or a broad range of jobs. This is something the plaintiff cannot do as he has worked without interruption on the assembly line since injuring his neck in 2004 and has continued to work there since the litigation began.
  4. To prove a failure to accommodate claim, a plaintiff must show: 1) he is disabled under the ADA; and 2) he is otherwise qualified/qualified for the position despite his disability (without accommodation from the employer; with an essential job requirement eliminated; or with a proposed reasonable accommodation).
  5. While the failure to accommodate claim is timely because the alleged conduct underlying the claim continued even after plaintiff filed his charge with the Tennessee Human Rights Commission, plaintiff did not suffer any adverse action. Therefore, the claim fails.
  6. In fact, Nissan never failed to accommodate the plaintiff. It allowed the plaintiff to remain in the two job position after he alerted his supervisors that the two new tasks Nissan wanted him to perform conflicted with his work restrictions. It also did not move the plaintiff from the two job position until after reviewing the Dr.’s report and determining that his work restriction did not conflict with the modify positions on the assembly line.

 

III

Takeaways

 

  1. This case had me going to the complaint itself. It was very hard for me to believe that a plaintiff lawyer would allege working as the major life activity. In fact, the plaintiff lawyer did not actually allege that. However, the plaintiff’s lawyer very much confused the issue with the allegations: 1) work restrictions limited at least one major life activity; and 2) plaintiff had a disability that interfered with major life activities and activities of daily living by way of his work restrictions. A reasonable judge could certainly make the inference that these allegations are in essence alleging working as the major life activity. It was certainly fair game for the defense lawyers to take that approach in their advocacy. Bottom line, with the amendments to the ADA, which specifies all kinds of major life activities, there is absolutely no reason, perhaps a rare exception exists, why working needs to be the major life activity alleged by plaintiff.
  2. With respect proving up a failure to accommodate claim, I agree that the ADA requires a showing that the person has a disability and that he can perform the essential functions of the job with or without reasonable accommodations. Where the Sixth Circuit loses me is when it says that one possibility for a plaintiff proving up a prima facie case in a failure to accommodate claim is showing an alleged essential job requirement can be eliminated. The ADA requires no such thing.
  3. If there is a moral of the story, imprecise pleadings can cost you big time. While the complaint did mention a neck injury, it doesn’t talk about how the neck injury substantially limited one or more major life activities. Also, when it comes to disability discrimination complaints, you are better off adopting a facts-notice hybrid type of pleading rather than a notice type of pleading. That is, allege sufficient facts to put the defense on notice of what they must be dealing with and stay away from general conclusions.
  4. I noticed that a petition for an en banc rehearing was denied. Appeal to the Supreme Court? I wouldn’t if I were thinking about the rights of people with disabilities globally. Absolutely true that the Sixth Circuit in my opinion errs with respect to expanding the major life activity of working to include restrictions on work as Sutton specifically uses the phrase, “to be substantially limited in the major life activity of working.” It also in my opinion errs with respect to saying that a plaintiff can show that they could do a particular job with an essential function eliminated and still be qualified/otherwise qualified. On the other hand, persons with disabilities have not fared well at the Supreme Court in employment law matters. Also, it would not be good for persons with disabilities if the Supreme Court expanded the major life activity of working.

 

 

Before getting started on the blog of the week, some housekeeping matters. First, my blog was late this week. My daughter came home from camp on Monday, and so my time is different than it usually is. Second, starting tomorrow, my family will be in Chicago visiting both sides of the family. So, no blog entry this coming week.

Today’s blog entry talks about the FSMB (Federation of State Medical Boards), and their policy on physician impairments, here, which are typically applied to medical licensing boards and to PHPs. By way of full disclosure, I have consulted on cases involving healthcare professionals who have had their licensing called into question on the basis of their disability.  Those consulting efforts either got the licensing authority to back off or led to more individualized remedies. About two months ago, I was contacted by a couple of physicians, and we have been exploring how the ADA applies to the universe of Physician Health Programs and medical licensing boards. It turns out it is incredibly complicated. Eventually, we decided to focus on the FSMB Policy on Physician Impairments, which is used by PHPs to justify their actions using the imprimatur of the Medical Licensure Boards (MLBs). Physician Health Programs exist in 48 states and are tightly linked to the medical boards that enforce their actions. Their ostensible purpose is to restore impaired physicians to a non-impaired status. Here is the rub. It is quite clear that the FSMB policy was not drafted with the ADA in mind even though it is a 2012 document. So, the ADA would have been around for many many years at the time of this document. Also, the amendments to the ADA would have been around and in effect at the time of this document as well. When I went through the policy, I found 36 different instances of ADA noncompliance and/or provisions that are extremely problematic under the ADA. The physicians I have been working with on this project and myself decided a piece detailing all the 36 issues overwhelms a blog entry. So, we are going to save that for an article we will be publishing in a peer-reviewed journal to be determined. With respect to a blog entry, we decided that talking about the general concerns I had with the policy and then exploring an actual case would work better. Turns out, there is an actual case we can explore. I had a delightful conversation with Susan Haney, M.D., and she wrote about her case here. This article won a 2019 EXCEL award for best editorial/opinion piece in a magazine. So, we will use her article as a springboard after we go over some general concerns. As usual, the blog entry is divided into categories and they are: overarching theme of the FSMB policy on physician impairments; Key definitions; Dr. Haney’s case study; other case studies mentioned in Dr. Haney’s article; and takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Overarching Theme of the FSMB Policy on Physician Impairment

 

If there is an overarching theme of the FSMB policy on physician impairment it is this: physicians who are impaired or who have any potential for impairment must be fixed and restored at all costs before they can practice. I have a real problem with this. It goes directly against the underlying principles of the ADA. Whether a person chooses to have their disability fixed or not is entirely up to them. The ADA is all about integrating people with disabilities into the mainstream environment, and NOT “fixing” their disabilities. It accomplishes its goal by forcing various entities to engage in reasonable accommodations/modifications for the person’s disability. As we know, the reasonable accommodation/modification obligations must be done unless there is an undue hardship (title I) or an undue burden or fundamental alteration (title II and title III). So, the ADA is very much about working with the individual as you find them. That is not what is going on with this policy at all. Wait a minute, you might say. Maybe, this is just your disability rights perspective running amok. My response to that is the policy has a nondiscrimination clause in it. However, tellingly, people with disabilities are completely absent from that clause. Taking that and the clear lack of knowledge about what the ADA requires in terms of how the provisions are written, the only conclusion I come up with is that, according to the FSMB, disability is just wrong and needs to be fixed or cured at all costs. Like I said, the ADA doesn’t work that way nor should it.

 

II

Key Definitions

 

It isn’t the reasonable accommodation/modification piece that is the problem with the FSMB policy on physician impairment. Where the policy consistently runs into trouble is the lack of awareness of key ADA definitional terms. In particular, the policy clearly does not take into account that a person has a disability under the ADA if they have a record of a physical or mental impairment that substantially limits one or more major life activity or if they are regarded as having a physical or mental impairment. 42 U.S.C. §12102(1)(B),(C). Also, the policy runs into serious problems with respect to two other definitional issues. First, both title I and title II of the ADA talk about how you have to be qualified as well as a person with a disability in order to be protected by the ADA. The definition of qualified is a bit different from title I and title II. Title I, as we know, focuses on the essential functions of the job and whether the job can be performed with or without reasonable accommodations. Title II, as we also know, focuses on essential eligibility requirements and whether those requirements can be met with or without reasonable modifications. Since medical boards are title II entities, medical boards would have to be concerned about title II, but since much of what is going on here is a fitness for duty, Medical Boards and PHPs also need to know of title I’s qualified definition as well. With respect to the PHPs, the organizations actually doing the work of assessing a physician’s particular situation, the PHPs would have to be aware of title III of the ADA, which as we discussed here, does not but should contain an implicit qualified definition within it. Also, since they are doing the specific work of fitness for duty, they should be aware of qualified under title I of the ADA. Finally, the FSMB policy really breaks down when it ignores the ADA concept of direct threat. As we have discussed many times in this blog, direct threat in both title I and in title II and title III are essentially the same. However, the key difference is that direct threat under title I applies to self and others. On the other hand, direct threat under title II title III only applies to a direct threat to others. The direct threat analysis becomes very complicated in this context because you have title III and title II entities doing fitness for duty exams on behalf of a title II entity with respect to a physician who probably, but not always, works for a title I entity. As I say, going into depth as I have done over the last couple of months, becomes incredibly complicated. Every time we thought we had a handle on it, other items opened up. As I am fond of saying the ADA is a milewide and a mile deep. At any rate, we are going to save the details for an article to be published later.

 

III

 

Dr. Haney Case Study

 

The case study we are exploring today can be found here. Let’s go through the key points of the article. Also, as I mentioned above, I had an hour conversation with her last week, so I may bring additional facts to bear. She has given me permission to share all of this and actually encouraged me to do so. I also shared this blog entry with her prior to posting this online. Also, please note that the facts are taken as true from the article and from what she told me in her conversation. The actual facts in their entirety are surely more complicated.

 

  1. Haney is a person with recurrent episodes of major depression. Until about 2008, she managed her depression privately without interference or oversight from any medical licensing board. She was never hospitalized because of mental illness and never missed a day of work due to mental illness. At the time of the occurrence, she was working for an employer of 15 or more employees (an entity covered by title I).
  2. While on vacation in March 2006, she had a severe asthma attack requiring an extended course of a high dose of prednisone. Prescribers of prednisone and many patients know that mild dose-dependent mood and cognitive changes happen frequently during the therapy and that more severe psychiatric side effects are occasionally seen at a higher dosage level. In her case, the prednisone caused her to become clinically manic for the first time in her life and she realized that her judgment was becoming impaired. So, she reported her illness to the employer in order to arrange for a brief medical leave of absence (very unclear whether FMLA leave was properly designated at the proper time). She also contacted her primary care physician who had appropriately prescribed the prednisone as well as her personal psychiatrist and reestablished care with the previous psychotherapist. So far so good. Absolutely nothing wrong with what she did so far.
  3. After discussing the matter with a colleague, she asked her employer whether she should preemptively report her illness to the state medical board in order to keep her professional credentials unblemished by rumors about the cause and severity of her symptoms. Big mistake here. She had already requested and was granted a leave of absence by the employer. Accordingly, the employer was on notice that they were dealing with a disability. Also, if the leave was FMLA leave and the employer had a certification policy in place, the employer could have asked Dr. Haney upon expiration of the leave to get certified as to whether she could perform the essential functions of the job at the end of the leave. Even if it was not FMLA leave, the ADA would have kicked in for the employer. If it was not FMLA leave, the employer would have had the right to ask for a fitness for duty exam so to speak to determine whether she could perform the essential functions of her job with or without reasonable accommodations because the employer would probably be able to show that such an exam was job-related and consistent with business necessity (we discussed job-related and consistent with business necessity many times before in our blog, such as here).
  4. The minute she reported the matter to her employer, the employer required her to obtain written permission from the Oregon Board of Medical Examiners (BME) before permitting her to resume work. The employer made a mistake here as the employer immediately regarded her as having a disability. As mentioned above, if the employer was concerned about her ability to do the essential functions of the job with or without reasonable accommodations, it could have insisted on a medical exam to assess that since it probably would be able to show that such an exam was job-related and consistent with business necessity. That exam would be a narrowly focused exam to assess whether the person could do the essential functions of the job with or without reasonable accommodations without being a direct threat (see this blog entry for example). Mandating approval from the Oregon BME is a strong indication that the employer regarded her as having a disability.
  5. She immediately called the BME’s physician health program, hoping to obtain confidential help. She was told that without a chemical component, they were not able to assist her. Instead, they recommended that she discussed this matter directly with the BME’s Medical Director,, a retired general surgeon. He explained to her that the only way she could get written permission authorizing her return to work was to open a formal board investigation into her fitness to practice medicine. Thinking she had nothing to fear, she went all in. As she realizes now, big mistake. While the Medical Board and the PHPs may not realize it, they are subject to title II (medical board and possibly the PHP), and title III (the PHP), of the ADA. Accordingly, any investigation should have been narrowly focused on the concern raised, which is not what happened here, as you will see below. Failure to conduct a focused investigation created ADA regarded as claims.
  6. During the four month investigation, the BME would not permit her to return to work. The investigator successfully discouraged her from seeking legal assistance because of the potential for prolonging the investigation and further delaying her return to work. The BME’s staff would not allow her to appear in person or to testify in her own defense. I am not going to get into the due process claims that may be here, but I will say getting ADA knowledgeable legal counsel involved in this process as early as possible is absolutely critical. Also, getting licensing counsel involved as early as possible in this process is absolutely critical. If such attorneys had gotten involved, they may have been able to work with the investigators to make clear to them that anything beyond a narrowly focused investigation would activate regarded as claims under the ADA. Such advocacy may have gotten the BME and the PHPs to think twice about conducting a far-reaching investigation.
  7. At the conclusion of the investigation, the BME issued a nondisciplinary public corrective action order effectively announcing her mental illness to the general public. The order required that she continue psychiatric care, maintain a physician-patient relationship with the primary care physician, and refrain from the abuse of drugs or alcohol, all of which she had been doing. The order was published in the quarterly newsletter and picked up and published by her local newspaper as well as made available on the BME’s public website despite her objections. She was also required to enroll in a 12 step addiction treatment program despite the fact that she does not have a substance use disorder. I am not a privacy attorney. Accordingly, I can’t go into whether any of those kinds of laws were violated. I do know that privacy laws vary widely from State to State. I can say that what you have here is regarded as claim in all kinds of ways. Also, there seems to be a complete lack of individual analysis as to the remedy needed. For example, being forced to enroll in a 12 step program regardless of whether an individualized analysis would suggest that was a suitable program for her is very problematic. If the ADA requires anything it is an individualized analysis.
  8. Publication of the order was not based upon any actual threat that her illness both to the general public but rather was a standard policy. This is a real problem because direct threat under the ADA, which we have discussed many times in our blog entries, such as here, is a completely different animal and a term of art that the BME and the PHPs seem to be completely unaware of.
  9. When she attempted to assert her right to privacy, autonomy, religious freedom, and appropriate medical mental health care, the BME threatened her with emergency suspension of her license unless she fully complied with the PHP ordered program. Couple of things here. First, no mention of the ADA being pursued and that should have been done. Second, a variety of laws have retaliation provisions in them. Third, two sets of attorneys need to be immediately involved in these things (licensing counsel who understands how the licensing system in that State works and counsel with a comprehensive knowledge of the ADA). The two together, if my experience is any guide, can be quite effective. Each State has so many quirks with their licensing system and the personalities involved and the ADA issues here are so complex, that you really do need two attorneys working together to deal with the issue.
  10. In late 2012, the Ninth Circuit in Haney’s case, held that the State Medical Review Board was entitled to absolute immunity from civil suit for the quasi-judicial and quasi-prosecutorial acts. Pointedly, that decision said that injunctive relief would have been possible but Dr. Haney did not allege any facts showing that injunctive relief was called for. The absolute immunity piece I have not seen before, and my first reaction is that part of the opinion is an outlier. Also, it can be debated whether the acts at issue were quasi-judicial/prosecutorial in nature. I don’t see how a state entity or even a private entity, even if they are acting as a state actor, would have absolute immunity from a federal lawsuit, assuming federal claims were involved. Second, it is important to remember that injunctive relief and attorney fees are a very powerful tool even if it is not damages.
  11. In 2007, she filed an independent complaint with the US Department of Health And Human Services Office of Civil Rights alleging violation of her civil rights under the ADA by the BME. Under pressure from both her civil suit and a Health and Human Services investigation, in mid-2008, the BME voted to allow her to withdraw from the PHP ordered program in good standing. Moral of the story: lawyers can be very helpful at any stage of the process, but the earlier you get them involved, the better.
  12. She ultimately returned to full-time work as an emergency physician with an unrestricted medical license. However, as a consequence of the sanctions and the publication of her private medical history, she has been turned away by literally dozens of potential employers and credentialing bodies because she no longer has a clean record. All kinds of things here. First, there may be claims against the potential employers. The question for the employer is can she do the essential functions of the job with or without reasonable accommodations and is not a direct threat to others. If the employers are not giving her a chance to explain what happened, are the employer then regarding her as having a disability? If the employers have a process of screening out people without a clean record from the BME and the PHPs, are they involved in a policy practice or procedure that screens out persons with disabilities in violation of the ADA? They just might be.
  13. She also informed me that she is under PHP monitoring basically for the rest of her career. One wonders if such monitoring does not create a regarded as claim that might lead to a future injunctive relief filing.

 

IV

Other Case Studies Mentioned by Dr. Haney in Her Article

 

For purposes of this section, all facts are taken from Dr. Haney’s article and are taken as true. The actual facts will of course be more complicated.

 

  1. In 1998, a New York physician was initially denied a California state medical license due to his self-disclosed history of mental illness. After California refused to license him, New York revoked his license there as well. After considerable outcry from disability rights advocacy groups, he was eventually granted a probationary license in California, subsequently unrestricted, where he currently practices. I have seen this before where a person with a record of a disability that is being completely managed is gone after by licensing boards. The focus, such as we discussed here, needs to be on behavior and not on the record of the disability. If you take adverse action based upon the record and not upon the behavior, that is disability discrimination.
  2. In 2004, a Washington physician published her first hand account of working with bipolar. 10 years later, that Physician was sanctioned by her medical board following a retaliatory complaint from a former patient arising from a custody dispute over a dog. I don’t know the facts, but sounds like a potential “record of,” claim to me.
  3. Physicians with any history of mental illness may be automatically assumed by the medical licensing board to have an occupational impairment based simply upon their diagnosis. In fact, one of the provisions in the FSMB policy on physician impairments very much suggests this as a possibility. Automatically assuming a physician is a direct threat to others without conducting a focused individualized analysis relying on the most current medical knowledge and/or the best available objective evidence is disability discrimination.

V

Takeaways

 

  1. Clearly, licensing boards and PHPs are in need of knowledgeable ADA counsel reviewing their operations and this particular policy. As I mentioned, expect a paper on this at some point. In the meantime, an opportunity exists for plaintiff attorneys to get fees.
  2. Any physician going into this system needs to get licensing counsel and an attorney with a comprehensive knowledge of the ADA involved immediately. Do not wait. The sooner appropriate attorneys are involved, the more likely through the use of extremely knowledgeable licensing and extremely knowledgeable ADA counsel, the train will be able to be stopped. Also, the more likely resources will be available to pay for the necessary substantive expertise
  3. Louise Andrew MD JD and Ron Chapman JD have put out  a nice little publication on do’s and don’ts with respect to this whole PHP system.
  4. This stuff is all really complicated. PHPs are generally 501(c)(3) organizations. However, as a service establishment, they are subject to title III of the ADA per 42 U.S.C. §12181(7)(F). Where an entity covered by title III of the ADA violates the ADA, the plaintiff can get injunctive relief and attorney fees. Damages are not a possibility. With respect to the medical licensing boards, which are state entities, if a showing of deliberate indifference, which we discussed here, can be made, then damages are available. Also, if the title III entity takes federal funds, then damages are in order as well under §504 to Rehabilitation Act.
  5. With respect to damages, that may be a tough fight for a couple of reasons. First, sovereign immunity or other immunities may be in play. As we have discussed many times before, such as here and here, sovereign immunity is an incredibly complicated area because the equal protection class that persons with disability fall into is never fixed. Also, whether a State has waived sovereign immunity will vary from State to State. Second, even though PHPs are title III entities an argument exists under this case that PHPs are state actors. As such, they would be subject to damages under title II of the ADA. Unclear whether a state actor, a PHP, would be able to avail themselves of sovereign immunity. Regardless, sovereign immunity does not protect against prospective injunctive relief claims.
  6. The employers of doctors are not off the hook either. Under title I of the ADA should an employer have reason to believe through behavior an issue is involved with respect to whether that physician can do the essential functions of the job with or without reasonable accommodations, they have the ability to insist on a medical exam if they can show that the medical exam is both job-related and consistent with business necessity. Automatically referring a physician into the PHP system, may wind up running the employer into a regarded as claim. If there is no behavior and the employer refers someone with a record of a disability into the system, that is problematic as well. Finally, were an employer to order a medical exam based on an anonymous tip, they may run themselves into problems, as we discussed here. Of course, medical licensing boards and PHPs are not title I entities, but the principle is instructive with respect to ADA compliance.
  7. The PHP evaluations are comprehensive, but why? Performing a comprehensive evaluation in every case leads to regarded as claims. For that matter, so does the lack of an individual analysis.
  8. Do look for a paper, but since it will be peer-reviewed, it may take some time for that to be published.
  9. The sooner the FSMB and PHPs can understand the ADA and get away from fix a disability at all costs mentality, the less liability they are going to have.
  10. Not all physicians are employees. For those physicians who are not, how does the ADA apply to them as title I of the ADA does not apply because they are not an employee. So, what mechanism exists for ADA protection for such individuals. First, there is this case, which holds a physician independent contractor can have a claim under title III. Second, since medical licensing board and PHPs are covered by title II (MBE), and by title III and possibly title II (PHP), fitness for duty is involved, I would argue title I’s rules with respect to otherwise qualified/qualified must apply.
  11. There may be overlapping regulatory jurisdiction depending upon the entity involved. For instance, you may see Health and Human Services, Department of Justice, or the EEOC all having jurisdiction depending on the situation.
  12. If a lawyer representing a physician headed into or in the PHP process already is not using the ADA in his or her advocacy on behalf of the client, then per this blog entry , that lawyer, in my opinion, is committing legal malpractice.
  13. Did I say legal counsel legal counsel legal counsel with comprehensive knowledge about the ADA is critical. As soon as possible is important as unless a disability rights advocacy group takes on the matter, any representation may be hourly since damages can be very uncertain with sovereign immunity and other immunity defenses. A physician also is more likely to have resources early on in the process. Also, it is possible that your malpractice insurance may or may not offer coverage. On this, the physician may need an insurance coverage attorney to argue over any coverage distinctions based upon disciplinary proceeding v. assessment of an illness. At any rate, exhausting the possibility of malpractice insurance coverage is worth exploring as such coverage could make a huge difference to the physician.
  14. I was thrilled to see that the ADA violations described here are not a matter of just one person theorizing; they actually do exist. Take a look at this letter that the DOJ just wrote, December 17, 2024,  to the Tennessee Bar regarding very similar practices.

 

I had a great time last week doing two CLEs with my colleague and foil Richard Hunt in Dallas. Those webinars can be found here and here. We had an absolute blast. I also got some personal time in as well with a really close friend and his family in nearby Fort Worth. So, ready to go for another week. Shortly before we did the first webinar, I got news from Robin Shea, the person behind the Labor And Employment Law Insider blog in my blogroll, that Kisor v. Wilkie came down. It’s timing could not have been better because the case explicitly and implicitly came up in both webinars. As promised last week, the blog entry of the week is on Kisor v. Wilkie. As usual the blog entry is divided into categories and they are: introduction;  why Auer deference makes sense; Auer deference from here on out; why Auer deference doesn’t get overruled; stare decisis must be respected; why case must be remanded; Chief Justice Roberts concurring opinion stating that the majority opinion and Justice Gorsuch are not that far apart; Justice Gorsuch concurring opinion setting forth the case why Auer deference should have died; and takeaways. Of course, the reader can focus on any or all of the categories. That said, at a minimum, the reader is going to want to read III, Auer deference from here on out, and IX, takeaways, for sure. For those with a more academic bent, it’s interesting comparing Justice Kagan’s take on why Auer deference had good policy reason behind it (II), with Justice Gorsuch’s take on why Auer deference should be blown up (VIII). Similarly, the stare decisis section (V) is interesting in light of how the Supreme Court is not always following stare decisis of late.

I

Introductory Thoughts

  1. Unanimous decision. However, unanimous in result only and not in its reasoning.
  2. The swing vote was clearly Chief Justice Roberts. Of particular significance, he joined the section circumscribing Auer deference, the section talking about how stare decisis mattered, and the section discussing the merits of the case. Otherwise, he pointedly did not join the majority opinion.
  3. Justice Kavanaugh did write a concurring opinion. That opinion essentially says he agrees with what Chief Justice Roberts said about how there is not much daylight between Justice Gorsuch and Justice Kagan.
  4. We previously discussed the oral argument in this case here. Just to recap, what happened here was a veteran lost a benefits case because an agency interpretation of its regulations was given Auer deference. He then appealed through the system, and it eventually came before the United States Supreme Court.
  5. Kenneth Culp Davis, widely recognized as the Dean of administrative law and cited to by Justice Gorsuch in his concurring opinion, actually taught administrative law while I was at the University of San Diego getting my JD degree. He had an absolutely brutal reputation, and I was too scared to take his class. I do remember some who did.

II

Why Auer Deference Makes Sense (plurality)

  1. For various reasons, regulations may be genuinely ambiguous. That can happen for a variety of reasons. For example, the subject matter of a rule could be so specialized or varying in nature so as to be impossible to capture it in every detail. Or, it could be a situation where the agency when drafting the regulation could not have reasonably foreseen. Either way, real uncertainties about a regulation’s meaning arise.
  2. Justice Kagan gives five different examples of how regulations have real uncertainty about their meaning, including: whether the ADA line of sight rule applies to only when people in the stadium are seated or whether it applies when people in a stadium are standing and a person with a mobility impairment needs to see over them; whether a Transportation Security Administration regulation applying to liquids, gels, and aerosols in carry-on baggage would apply to any kind of liquid or just to liquids that the policy is designed to protect against; whether a Mine Safety And Health Administration rule requiring employers to report occupational diseases within two weeks after they are diagnosed would include the results of a chest x-ray; an FDA regulation concerning what an active moiety is; whether a Police Department making disciplinary infractions subject to pay deductions factors in the whether police captains are eligible for overtime under the Fair Labor Standards Act (Auer). The first example pertaining to the ADA is interesting because both the Seattle Mariners and the Baltimore Orioles are engaged in litigation at this time on this very point.
  3. Auer deference operates on a presumption that Congress generally wants the agency to play a primary role in resolving regulatory ambiguities.
  4. The Supreme Court has held in the past that the power of an agency to interpret its own regulations is a part of the agency’s delegated lawmaking powers.
  5. Agencies writing a regulation often have direct insight to what the rule was intended to mean.
  6. If you want to know what a rule means, ask its author.
  7. Resolving genuine regulatory ambiguities often entails the exercise of judgment grounded in policy concerns. For example, what comparable line of sight means is complicated in the sports arena when spectators sometimes stand up. The question arises as to how costly is it to insist that the stadium owner take that sporadic behavior into account and is the viewing value received worth the added expense. That is a policy question rather than a legal question.
  8. Agencies have unique expertise often of a scientific or technical nature relevant to applying a regulation to complex or changing circumstances.
  9. Agencies can conduct factual investigations, can consult with affected party, and can consider how their experts have handled similar issues over a long course of administering a regulatory program.
  10. Agencies have political accountability because they are subject to the supervision of the president who in turn answers to the public.
  11. Congress frequently has expressed a preference for resolving interpretive issues by uniform administrative decision rather than piecemeal through litigation.

III (majority)

Auer Deference from Here on Out

  1. For Auer deference to apply, the regulation must be genuinely ambiguous. We mean it we mean it. That is, the regulation must be genuinely ambiguous even after a court has resorted to all the standard tools of interpretation.
  2. If the reason for the presumption do not apply or there are other reasons outweighing the reason behind the presumption, courts should not give deference to an agency’s reading except to the extent it is persuasive authority.
  3. Deference is not warranted where court concludes that an interpretation does not reflect an agency’s authoritative, expertise-based, fair, or considered judgment.
  4. The new version of Auer deference gives agencies the ability to do their job while obligating courts to perform their reviewing and restraining functions.
  5. If uncertainty in the regulation does not exist, no plausible reason for deference exist either. The regulation just means what it means and the court must go with that. That is, if there is only one reasonable construction of a regulation, then a court has no business deferring to any other reading no matter what the agency says would make more sense. Holding otherwise, would allow the agency to create a new regulation without going through the rulemaking process.
  6. Only where the legal toolkit is empty and the interpretive question still has no single right answer does the judge get to conclude that Auer deference applies. It isn’t good enough that agency regulations can be difficult understand. Before Auer deference applies, an independent deep dive by the court is in order.
  7. The deep dive includes carefully considering the text, structure, history, and purpose of the regulation as if the interpretation of the regulation did not exist.
  8. Even if genuine ambiguity exists, the interpretation of the regulations still have to be reasonable. That is, it has to come within the zone of ambiguity the court has identified after applying all its interpretive tools. Citing to Chevron, Justice Kagan says that it is entirely possible interpretation of a regulation will not be reasonable.
  9. In deciding whether Auer deference is or is not appropriate, you look to several factors: 1) whether the regulatory interpretation is the agency’s authoritative or official position, rather than an ad hoc statement not reflecting the agency’s views. That is, the interpretation must at least come from those actors using mechanisms understood to make authoritative policy in the relevant context; 2) the agency’s interpretation must implicate some form of its expertise. After all, administrative knowledge and experience largely account for the presumption that Congress delegates interpretive lawmaking power to the agency. This is especially the case when a rule is technical or commonly implicates policy expertise, such as the examples given by justice Kagan in the first part of her opinion. Finally, when the agency has no comparative expertise in resolving regulatory ambiguity, Congress presumably would not grant the agency the authority to do so; and 3) an agency’s reading of a rule must reflect fair and considered judgment. That does not include deferring to a merely convenient litigating position or an after-the-fact rationalization abandoned by the agency to defend the agency action against attack by others. It also does not include deferring to a new interpretation that creates unfair surprise to regulated parties. For that matter, it also generally does not include giving deference to agency interpretations advanced for the first time in legal briefs.
  10. So, Auer deference from here on out as Justice Kagan put it, “is a deference doctrine not quite so tame as some might hope, but not nearly so menacing that they may fear.”

IV

Why Auer Deference Doesn’t Get Overruled (plurality)

  1. Auer deference as circumscribed is consistent with the judicial review provisions of the administrative procedure act because: 1) all traditional methods of interpretation must be applied first and plain meaning must be in force; 2) an independent deep dive always must be conducted; 3) the interpretation of the regulation must be reasonable; and 4) the interpretation must be authoritative, expertise-based, considered, and fair to regulated parties.
  2. Auer deference as circumscribed is consistent with the administrative procedure act’s rulemaking requirements because: 1) interpretive rules do not have the force of law and never forms the basis for an enforcement action; 2) the courts get the ultimate say on Auer deference; and 3) no evidence exists that any regulation in American history was designed poorly because an agency can fall back on Auer deference.
  3. Auer deference does not violate separation of powers principles because courts retain a firm grip on the interpretive function.

V

Why Auer Deference Should Continue as a Matter of Stare Decisis (majority).

  1. Inherent to precedent is a fundamental principle of the rule of law because it promotes the evenhanded, predictable, inconsistent development of legal principles. It also fosters reliance on judicial decision and contribute to the actual and perceived integrity of the judicial process. To move away from that, requires special justification, which, outside of an argument that it was wrongly decided in the first place, is not the case here.
  2. Auer deference goes back more than 75 years or more with the Supreme Court deciding dozens of cases on that point and the lower Court doing it thousands of times. In fact, Auer deference is all over administrative law.
  3. Abandoning Auer deference would cast doubt on many settled constructions of rules.
  4. Congress has refused to take up the question of whether Auer deference should continue. By statute, it could have gotten rid of Auer deference if it wanted to, but it never did.
  5. The parties made no claim that Auer deference is unworkable, which is a traditional basis for overruling the case.
  6. Auer deference is not a doctrinal dinosaur.
  7. Absolutely true that agencies have far reaching influence, which is why Auer deference gets severely circumscribed by this case.

VI

Why the Case Must Get Remanded (majority)

  1. The Federal Circuit acted too fast in declaring the regulation ambiguous. That is, they didn’t do the deep dive before applying Auer deference. As mentioned above, that deep dive involves looking at a variety of indicators, such as the text, structure, history, and purpose as well as whether the regulation really has more than one reasonable meaning.
  2. The Federal Circuit acted too fast in saying that Auer deference applied even if the regulation was genuinely ambiguous. That is, what the interpretation of the regulation of the sort that Congress would want to receive deference? Did the board member’s ruling reflect the considered judgment of the agency as a whole?

VII

Chief Justice Roberts Concurring Opinion Stating That There Isn’t Much Daylight between Justice Gorsuch and the Majority Opinion of Justice Kagan.

  1. Under the majority opinion for Auer deference to apply, the following factors have to be considered: 1) the underlying regulation must be genuinely ambiguous; 2) the agency’s interpretation must be reasonable and must reflect its authoritative, expertise-based, and fair and considered judgment; and 3) the agency must take account of reliance interest and avoid unfair surprise.
  2. On the other hand, Justice Gorsuch says that the situations a court might be persuaded by the interpretation of the regulation would include a court finding: 1) the agency considered the problem; 2) the agency offered a valid rationale; 3) the agency brought if expertise to bear; and 4) the agency interpreted the regulation in a manner consistent with earlier and later pronouncements.
  3. Comparing ¶ 1 with ¶ 2 of this section of the blog reveals that the two are very close once style differences are accounted for.
  4. Different question as to whether the court should give deference to an agency’s regulation (Chevron deference). That is, Chevron deference saved for another day, if ever.

VIII

Justice Gorsuch Concurring Opinion on Why Auer Deference Should Die

  1. The majority opinion can’t get five votes to say that Auer deference is lawful or wise. Instead, it survives on the basis of stare decisis.
  2. There are so many new restrictions and limitations put on Auer deference that Chief Justice Roberts claimed to see little practical difference between keeping it on life support and overruling it entirely.
  3. Justice Gorsuch would stop the business of making up a new system for judges to abdicate their job of interpreting the law and allow the Court of Appeals to apply its independent judgment of the law’s meaning.
  4. The scheme put forward by the majority is so complicated that it will no doubt come before the court again. At that time, hopefully the Supreme Court would just get rid of Auer deference entirely.
  5. Auer deference originally began as dicta in a decision about emergency price controls at the height of the second world war. Only in the last few decades of the 20th century lawyers in court dusted Auer deference off and shaped it into a reflexive rule of deference to regulatory agencies. They did that without even considering whether a rule like that could be legally justified or even made sense.
  6. Auer deference first got his start in the Seminole Rock case, here, and there the statement had no authority to back it up. In fact, Professor Davis said that particular language was an unexplained aside and made no difference to the case’s outcome.
  7. The same term the court came down with Seminole rock, it came down with Skidmore, which talks about persuasive authority.
  8. In the name of Auer deference, courts have invariably, though not always, mechanically applied and reflexively treated Auer deference as a constraint upon the careful inquiry one ordinarily expects of courts.
  9. In the real world, a judge uses his or her traditional interpretive toolkit to reach a decision about the best and fairest reading of the law. They do that in just about every area of the law. However, when it comes to interpreting federal regulations, Auer deference displaces that process by requiring judges to defer to the agency’s interpretation of the regulation as controlling regardless of what a considered analysis reveals.
  10. Squaring Auer deference with §706 of the Administrative Procedure Act simply doesn’t hold up. That section requires a reviewing court to resolve for itself any dispute over the proper interpretation of an agency regulation.
  11. Auer deference is also incompatible with §553 of the Administrative Procedure Act.. That section requires agency to follow notice and comment procedure when issuing or amending legally binding regulations (substantive rules), but not when offering mere interpretations of those regulations. Auer deference for all practical purposes means that any new interpretation of the regulation might as well be a new regulation.
  12. Justice Kagan’s statement about how an agency’s interpretation lacks the force of law doesn’t add up because it rests on a too narrow understanding of what it means for an agency action to bear the force of law.
  13. Auer deference allows for hidden legislative intentions to overrule express statutory directives.
  14. Auer deference doesn’t work with the Constitution either as the judicial power of the United States vests exclusively in the Supreme Court and in the lower courts. A core component of that power is the duty of interpreting the laws and applying them in cases properly brought before it.
  15. The founding fathers were very jealous of ensuring a fair hearing before a neutral judge so that the rule of law reigns supreme and does not merge into the rule of men.
  16. Auer deference tells a judge that he or she has to interpret agency interpretation of regulations in a way that says what the executive agency says they mean. Problem with that if that executive officials are not nor are they supposed to be entirely impartial. That is, they have their own interest, constituency, and their own policy goals when interpreting a regulation.
  17. Whether purposeful or not, the failure of an agency to write a clear regulation winds up increasing its power by allowing it to both write and interpret rules bearing the force of law. Such a system unites powers the Constitution deliberately separates and denies the people the right to an independent judicial determination of the law’s meaning.
  18. The author knows best position of the majority makes little sense in light of the reality of administrative agencies. That is, agency personnel changes over time and agency policy priorities can shift dramatically from one presidential administration to another. Auer deference says that courts have to defer to the current view of those regulations when those current views may or may not correspond to the views of those who actually wrote the regulation in the first place.
  19. In Justice Gorsuch’s opinion, technical expertise isn’t a reason to keep Auer deference either as courts can consider that technical expertise in the context of persuasive authority.
  20. While stare decisis is used as the vehicle for keeping Auer deference, the new Auer deference system reshapes Auer deference in new and experimental ways. Further, preserving Auer deference through stare decisis on the basis of a heightened standard standard given to statutory decisions is not deserved as it was dicta from a decision of the Court..
  21. Auer deference undermine judicial independence.
  22. No persuasive rationale supports Auer deference.
  23. Auer deference has not proved to be a workable standard and the new paradigm will make things even more confused and unworkable.
  24. Auer deference is out of step with how courts normally interpret written laws.
  25. Auer deference potential for mischief has grown exponentially with the explosive growth of the administrative state over the last half-century. In fact, the administrative state produces so many reams of regulation that it dwarfs the statutes enacted by Congress. In 2018 the Code of Federal Regulations total 242 volumes and 185,000 pages. So, the cost of continuing to deny citizens an impartial judicial hearing on the meaning of disputed regulations has increased dramatically since the beginnings of Auer deference.
  26. The majority opinion raises the question of the continuing validity of decisions applying Auer deference just as if the majority had overturned Auer deference entirely.
  27. The better approach is to allow court to decide cases based upon independent judgment and to follow the agency’s view only to the extent it is persuasive.
  28. If Auer deference still gets applied quite a bit after this decision, then the Supreme Court should overrule it when the time comes.

 

IX

Takeaways

  1. From reading the majority opinion, it seems that Justice Breyer’s concern in oral argument about a judicial power grab may have affected Chief Justice Roberts in some way. Also, how getting rid of Auer deference would fundamentally reshape administrative law (stare decisis), most probably played a role as well since Chief Justice Robert joined the stare decisis part of the opinion..
  2. A real she said he said situation between Justice Kagan and Justice Gorsuch regarding the policies behind Auer deference. Justice Kagan believes Auer deference has many things to commend it. On the other hand, Justice Gorsuch does not agree with that. To Justice Gorsuch’s mind, Auer deference results in administrative agencies going out of their lane. Whenever any branch of the US government goes out of its lane, to Justice Gorsuch that is a bridge too far.
  3. Very interesting that of the examples Justice Kagan uses to explain her opinion, one of them is the site line dispute going on in stadiums at this very moment. I don’t know about the other examples, but I do find it curious an example was chosen where litigation is very much ongoing on that very point.
  4. It makes sense to me that there are situations where an agency has unique expertise to bring to a matter where the regulations are unclear.
  5. Justice Scalia must be smiling as his focus on plain meaning has now come to administrative law. That is, if a regulation is clear, then the courts are supposed to do a full stop right there.
  6. Auer deference as reconfigured requires courts to engage in a deep dive, independent analysis, if there is a doubt as to what the regulation means. Pretty clear from the decision, that Auer deference is meant to be the exception rather than the rule.
  7. The new paradigm is incredibly complicated. For example, just when is the agency’s expertise really brought to bear? Is that expertise only for technical matters, such as moiety’s, or does it extend to other situations? If so, what? At a minimum, whenever Auer deference comes up, a court is going to have to go through a lot of hoops before it allows Auer deference to proceed.
  8. I’m not sure what to make of the fact that a few of the Justices talked about how Chevron deference is not at issue in this case. That seems a bit strange because the arguments in favor of Chevron deference are much stronger than the arguments for Auer deference.
  9. Mechanical and reflexive application of agency interpretations is dead.
  10. The Fair Housing Act circular on service dogs and emotional support animals is now very much up in the air because the Fair Housing Act does not talk about service animals and emotional support animals. For that matter, the Fair Housing Act doesn’t even have any regulations on the subject. One wonders how landlords are going to react to this. Some of that reaction may depend upon how the Department of Housing and Urban Development reacts to this decision.
  11. In the education field, Office of Civil Rights letters frequently get thrown around in the same way as precedent. Unclear, how this decision impacts the persuasive authority of those letters.
  12. One wonders about how Justice Gorsuch’s talking about the rule of law needing to reign supreme rather than the rule of men will impact some of the larger issues going on now with respect to the administration’s response to congressional subpoenas and to executive privilege. I don’t view Justice Gorsuch’s statement about this as anything surprising. As we discussed here, Justice Gorsuch is a very much every branch of government needs to stay in their lane type of guy.
  13. Having worked for the Joint Committee on Administrative Rules in the State of Illinois, Justice Gorsuch’s view on the author knows best made a great deal of sense to me. However, Justice Kagan’s view on agency expertise also made sense to me for the same reasons.
  14. In Illinois, there is a separate agency called the Joint Committee on Administrative Rules, a division of the legislature. JCAR’s job is to proofread all regulations and then more importantly ensure that the regulations meet legislative intent. If the regulations did not meet legislative intent, then a committee of the legislature could state as much and tell the agency to walk back to regulations. As a practical matter, when regulations went beyond legislative intent, the agency generally didn’t want to pick that fight and would walk it back once told as much by JCAR staff. One wonders if under this decision the JCAR’s of the respective States that have them will not get even more power than they currently have, which may not be a bad thing.
  15. Enforcement guidances, technical assistance memorandums, circulars and anything not a regulation having gone through the notice and comment process are now up for individual assessment as to whether the courts are going to buy off on it. The problem with this approach is that there are many many District Court judges out there not to mention 12 different Courts of Appeals. It’s possible we will get an awful lot of conflicting decisions when it comes to giving deference to agency interpretation of the regulations.

In short, Auer deference very well may go too far, the new Auer deference paradigm may be too complicated, but persuasive authority may be chaos. It will be very interesting to see how all this works out.

Today, I am off to Dallas Texas. While there, I will be doing two different webinars with my colleague and foil Richard Hunt. The webinars can be found here and here. So, this is my blog entry for the week. With respect to next week’s blog entry, absolutely no doubt that it will be blogging on the imminent decision in Kisor v. Wilkie. Also, on the horizon, blogging on some books put out by the American Bar Association related to what I do. This blog entry talks about one of those books.

As everyone knows, Richard and I frequently blog on each other’s cases. Our perspectives are so different that the reader gets the benefit of both. Sometimes, I am in complete agreement. Sometimes, very close to it. Today’s blog entry offers a personal and professional perspective on Richard’s blog entry talking about noisy restaurants. His blog entry can be found here. As everyone knows, I am deaf proud with a small d. What that means is that I have a 65 to 120 dB sensorineural hearing loss in both ears. I function entirely in the hearing world with very advanced powerful hearing aids and top-notch lip reading skills. I am very sensitive to deaf culture and have represented culturally deaf individuals in effective communication cases. If I were deaf with a D, then I would be a person who learned ASL as a first language, went to a state school for the deaf, and is medically deaf. In the capital deaf world, you get a bonus if you are genetically deaf. While I am medically deaf and most probably genetically deaf considering my immediate and extended family’s history of childhood hearing loss, I don’t meet the other two criteria. Hence, the small d.

Richard’s blog entry is all about the noisy restaurant. Recently, an article getting wide play suggested that the ADA should apply to noisy restaurants, and Richard’s blog entry is a follow-up on that. I deal with the noisy restaurant all the time. First, I wear digital hearing aids. As such, they are highly programmable. With the hearing aids I have now, I have two programs on it. First, a program for everyday conversation. Second, a program for noisy restaurant and amplification. In the noisy restaurant and amplification program, if I am in a noisy restaurant, I will select that program and it fades the background noise so that I hear the people immediately around me. It is also excellent for when I am at the theater as it does real well with amplification.

So, what do I do with noisy restaurants? First, I try to avoid them at all costs. You know the noisy restaurants. They’re going to be restaurants with high ceilings, no carpeting, and lots of people. It seems that millennial’s and younger folks thrive on this kind of vibe. If I do go into a restaurant and it gets noisy, I use my noisy restaurant program. For anyone using digital aids, they often come with several different programs. I would strongly encourage a program for noisy restaurants. It really is a tremendous help. Sometimes, like the restaurant I went to recently for professional networking lunch, even the noisy restaurant program is not much help. In that case, I tough it out, and then strongly consider whether I want to go back as being in that kind of environment puts me at a severe disadvantage.

Turning to Richard’s legal analysis, it is superb as usual. First, I personally don’t like the word “disabled.” I find that word disabling. Disability to me is more neutral. That said, my preference for disability seems like a battle I am losing. At any rate, go people first and then try to figure out what the individual prefers. Second, the hearing loss community can’t stand “hearing impaired,” though I do know of individuals with hearing loss using it. You are much better off going with deaf or hard of hearing, whichever is the case. There is nothing impaired about my hearing. I just don’t hear without my hearing aids.

I agree with Richard that a hearing loss is a physical impairment. I also agree that the inability to hear when compared to most people in the general population is a substantial limitation on a major life activity. Finally, I agree that the inability to understand the conversation in a specialized environment like a noisy restaurant is not a substantial limitation on the major life activity because conversing in noisy places is not a major life activity.

I also agree with Richard that a noisy restaurant is not discrimination because everyone has to endure it. That said, if a person with a hearing loss goes to a noisy restaurant, the restaurant would have to adjust with respect to the patron partaking in the essential eligibility requirements of the restaurant. For example, if the patron simply can’t understand the server, adjustments will need to be made so that the server and the patron can communicate to get the order. I also agree with Richard that design and construction are not policies, practices, or procedures and that the ADAAG has nothing to do with noise in the facility.

With respect to background music, even with my hearing aids, I still have a 40% hearing loss. I don’t always hear the background music, especially if my noisy restaurant program is on. Oftentimes, I will hear it only in the background. If my wife or my daughter says that is a really cool song, I will whip out shazam to figure out what it is. So, in my case background music is not much of an issue. I do understand how background noise could be an issue, especially for those without a noisy restaurant program on their hearing aids.

In the nut allergy blog entry, here, we talked about what might be the essential eligibility requirements of a restaurant. As Richard points out and as I pointed out in that blog entry, it isn’t always clear what the essential eligibility requirements of a restaurant are. A noisy restaurant is part of the restaurant’s vibe and therefore, essentially part of the facility. Playing with the music volume arguably fundamentally interferes with the vibe of the restaurant.

Richard does raise the point of closed captioning and here is also something I have personally dealt with. I do recall walking into a restaurant once and asking the restaurant to turn on captioning on the TV. They refused saying that it bothered their patrons. On this, IMO, the restaurant blew it. As a deaf individual functioning in the hearing world who relies on captioning whenever I watch TV, the captioning should have been turned on. There is no way they could say that providing that auxiliary aid and service would fundamentally alter the essential eligibility requirements associated with the restaurant. Also, what I see more often now, is that the televisions in the restaurant all have the sound off and the captioning on. The reasoning being is that way the patron can understand what is going on and the noise from the TV doesn’t interfere with patrons trying to hear each other; a case of universal design benefiting everyone.

Finally, while I am at it, since I have a blog, I am able to get books from the American Bar Association for free if it is related to what I cover in my blog, and I can find a way to post a review of the books on the blog when appropriate. Recently, I have received two books from the American Bar Association. The Model Rules of Professional Conduct and the Class Action Strategy and Practice Guide. I am going to save the Model Rules of Professional Conduct for another blog entry. I do want to briefly talk about the book, Class Action Strategy and Practice Guide, by Gregory Cook and Jocelyn Larkin editors from the ABA’s litigation section. I do write about class action quite a bit, such as here. However, I am not a person that spearheads litigation. So, I was very interested in this book to find out why an attorney would undertake a class action in the first place and what are the considerations that go along with it. If you are trying to get a handle on just what is class action litigation, the first few chapters do a great job talking about the considerations for deciding whether to take on a class action. After that, the book gets into the serious weeds of class action litigation. On the one hand, it is really nice how it does with that because it has both the plaintiff and the defense perspective. On the other hand, if you are not a person doing class action litigation, much of the succeeding chapters may well go over your head. In short, if you are a class action litigator or are seriously considering pursuing class action litigation or find yourself in a class action as an attorney, I would definitely recommend the book.

 

Be back next week with Kisor v. Wilkie.

 

Some weeks are a bit of a struggle trying to figure out what to blog on. Law360 is a tremendous help. Also, I keep a pipeline of cases as well. However, sometimes I’m just not in the mood to blog on what is in my pipeline. So, I looked at all of my law 360 alerts and lo and behold Karnoski v. Trump came down from the Ninth Circuit. My daughter and I teach at our synagogue during the school year. Our synagogue, Congregation  Bet Haverim, was originally founded as the home for gay and lesbian Jews in Decatur Georgia. Since then, it has also become a welcoming place for the heterosexual community as well. It is a reconstructionist synagogue. Reconstructionism (think reform with a strong sense of community), is an offshoot of the conservative Jewish movement. So, while our liturgy would be very familiar to any Jewish person in the conservative movement, our synagogue is very big on social justice. That said, it is also very interested in a big tent where everyone is welcome, and the rabbi takes that very seriously. So, when I teach at the religious school during the year, I am constantly weaving in case law into my classes. Of course, considering our synagogue’s history and my own professional and personal background, we talk quite a bit about disability discrimination and LGBT as they get analyzed in the courts. We actually talked about our case of the day in my class last year (I teach the seventh grade). Our case of the day is Karnoski v. Trump, opinion can be found here, the Ninth Circuit’s recent decision of June 14, 2019, discussing the military ban on transgender individuals with gender dysphoria. As everyone knows, I follow this area closely because gender dysphoria is a disability under the ADA, and I have always been interested in just how the equal protection clause will be interpreted with respect to the LGBT community when compared to the disability community. As usual, the blog entry is divided into categories and they are: introduction; court’s reasoning equal protection; court’s reasoning executive privilege; court’s reasoning deliberative process privilege; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

I

Introduction

 

The opinion is fascinating in a couple of different ways. First, it is a published decision without an author, i.e. a per curiam opinion. You don’t see a lot of published decisions without an author. Second, the decision is unanimous. Third, the decision goes 58 pages, but fully 38 pages of that decision is spent detailing the procedural history of the case. Turning to the facts, I am not going to go into 38 pages of facts. Basically, before President Obama left office, he encouraged the Secretary of Defense to study whether transgender individuals should serve in the military. The result of those efforts was a decision that they should. However, President Trump was none too pleased with that. Accordingly, he tweeted that transgender individuals were not going to serve in the military. That led to implementation of the ban and to lawsuits. The lawsuits basically said that the military didn’t do its due diligence and so therefore, the ban should be thrown out. As a result of those lawsuits, the military went through the process of studying the matter, and a report was issued talking about when transgender individuals and those with gender dysphoria could serve or not. That led to more lawsuits including discovery disputes over how the process evolved and what went into the process of coming up with the final report. The District Court did not give the administration much of a choice but to declare executive privilege and deliberative privileges with respect to the discovery disputes. Also, the District Court held that transgender individuals were in a suspect or quasi-suspect class for equal protection purposes. Accordingly, all of that gets appealed to the Ninth Circuit.

 

II

Court’s Reasoning: Equal Protection

  1. Citing to a Supreme Court decision, the Ninth Circuit said that when it comes to equal protection classifications based on gender, the level of justification is “exceedingly persuasive.” That is, the justification has to be genuine and not hypothesized or invented in response to litigation and must not rely on overbroad generalizations about the different talents, capacity, or preferences of males and females. Also, physical differences between the sexes should not be used to denigrate either sex. In short, the Supreme Court requires something more than rational basis review but does not require strict scrutiny.
  2. With respect to judicial scrutiny of a military decision based on sexual orientation, the Ninth Circuit has previously said that the government has to advance an important governmental interest, the intrusion must significantly further that interest, and the intrusion must be necessary to further that interest. In other words, is a less intrusive means unlikely to achieve substantially the government’s interest.
  3. Citing to city of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985), the heightened scrutiny must be applied to the specific circumstances rather than just generally.
  4. So, while the military is entitled some deference, that doesn’t mean intermediate scrutiny goes away.
  5. In applying intermediate scrutiny on remand, the District Court does not get to substitute its own evaluation of evidence for a reasonable evaluation by the military. However, that deference doesn’t mean just accepting the military’s point of view at face value. The military bears the burden of establishing that they reasonably determined the policy significantly furthers the government’s important interest, and that is not a trivial matter.

III

Court’s Reasoning: Executive Privilege

  1. The presidential communication privilege is a presumptive privilege for presidential communications that preserves the president’s ability to obtain candid informed opinion from his advisors and to make decisions confidentially. Accordingly, that privilege protects communication directly involving and documents actually viewed by the president as well as documents solicited and received by the president or his immediate White House advisors with broad and significant responsibility for investigating and formulating advice given to the president. That privilege covers documents reflecting presidential decision-making and deliberations regardless of whether the documents are predecisional or not and it covers the documents in their entirety.
  2. The deliberative process privilege is something else entirely. That privilege protects document reflecting advisory opinions, recommendations, and deliberation comprising part of the process by which governmental decisions and policies are formulated. For that privilege to apply, material has to be predecisional and deliberative. That privilege also does not protect documents in their entirety. If the government can segregate and disclose nonprivileged factual information within a document, it has to do so.
  3. Since the plaintiff’s have a meritorious argument that the 2018 policy did not independently analyze the impact of transgender individuals serving in the armed services, but rather implemented the 2017 memorandum, both forms of executive privilege are at issue here.
  4. Executive privilege is an extraordinary assertion of power that should not be lightly invoked because it sets up an immediate confrontation between two branches of government. Accordingly, when dealing with a dispute over whether subpoenas are unnecessarily broad, that conflict should be avoided whenever possible. In that situation, courts are urged to explore other avenues short of forcing the executive to invoke the privilege.
  5. A president does not have to assert the presidential communication privilege to specific documents covered by discovery requests before lodging a separation of powers objection.
  6. On remand, while the District Court should give due deference to the presidential communication privilege, the District Court also needs to realize that that deference is not absolute.
  7. In an executive privilege situation, plaintiffs have to make a preliminary showing of demonstrating that the evidence sought is directly relevant to issues expected to be central to the trial and is not available with due diligence elsewhere. If the plaintiff shows that the discovery requests are narrowly tailored to seek evidence directly relevant to the central issues in the litigation and that evidence is not available with due diligence elsewhere, plaintiffs meet their preliminary burden. Once that burden is met, then the president gets the opportunity to formally invoke the privilege and make very specific objection to show that the interest in secrecy or nondisclosure outweighs the need for responsive materials. Then, it is up to the District Court to conduct an in camera review before any materials are turned over to the plaintiff’s so that nonrelevant material can be taken out and so that presidential confidentiality is not unnecessarily breached.

IV

Court’s Reasoning: Deliberative Process Privilege

  1. A plaintiff can obtain deliberative materials upon a showing of a need for the materials and that the need for accurate fact-finding overrides the government’s interest in nondisclosure. Whether the exception applies involves looking at: 1) the relevance of the evidence; 2) the availability of other evidence; 3) the government’s role in the litigation; and 4) the extent to which disclosure hinders frank and independent discussion regarding contemplative policies and decisions.
  2. The record is not adequate to evaluate the relevance of all the requested information in terms of balancing production of materials against the military’s confidentiality interest. Also, the District Court needs to carefully consider the military’s interest in full and frank communications about policymaking. One way to deal with all of this is for the District Court to conduct discovery in stages. After all, documents involving the most senior executive branch officials may require greater deference than other kinds of documents, though of course, those documents may be the most relevant as well.

V

Thoughts and Takeaways

  1. I feel sorry for the District Court when it comes to dealing with this case on remand. What the District Court is supposed to do is far from clear. We do know the Ninth Circuit believes transgender individuals are not in the rational basis class, but what class are they in? The Ninth Circuit opinion is really confusing because it specifically refers to “intermediate scrutiny,” but it also cite to the Cleburne decision. The two aren’t the same. Intermediate scrutiny is what we think of with respect to what Justice Ruth Bader Ginsburg established in her advocacy before the Supreme Court when she was a practicing attorney. Cleburne is another animal entirely. Ostensibly, Cleburne was a rational basis case. However, Justice Marshall in that decision noted that it would be more accurate to call Cleburne a rational basis plus decision. To my mind, rational basis plus is a step below intermediate scrutiny. Being the former professor that I am, I would analogize it to rational basis scrutiny being a C, rational basis plus being a C+/B-, intermediate scrutiny being a B, and suspect class being an A. I don’t see how you can say that Cleburne and the intermediate scrutiny cases are the same equal protection classification.
  2. While the military gets deference, that deference is not absolute. However, as with the equal protection classification, it is very unclear just where the deference ends and judicial checks begin.
  3. The court makes it clear that the District Court is supposed to do everything in its power to prevent claims of executive privilege and deliberative process privileges.
  4. If those claims cannot be prevented, then executive and deliberative process privileges need to be respected but that respect is also not absolute. Again, unclear.
  5. It is revolutionary that transgender individuals are being put in a class higher than rational basis (the LGBT Supreme Court decisions all stayed away from equal protection classifications in their decision. Instead they focused on other concepts, such as liberty and due process). It will be interesting to see whether this holds. If it holds that transgender individuals are in a class higher than rational basis, that decision could have broad ramifications beyond just the question of whether a transgender individual has a right to serve. It also means that transgender individuals will in at least some cases, be in a higher equal protection class than individuals with disabilities (under Tennessee v. Lane, the equal protection class for people with disability varies depending upon the circumstances of the case).
  6. The Ninth Circuit is essentially holding that discrimination against a transgender individual is sex discrimination, a point the Supreme Court has never considered but will do so next year. One wonders how that also will impact on this.
  7. For those trying to keep track of all the privilege claim that President Trump is currently making, this case is a nice introduction to the executive and deliberative process privileges.

I know it has been awhile since I did a blog entry, but I have a really good excuse. The last day of May was my daughter’s last day of her freshman year in high school. Then, the following week dealt with chasing her around and also going to Portland Maine for the ABA Law Practice convention. Beautiful country up there. Then, when I came back, I had to make sure that my daughter had everything she needed and was all packed to go off to overnight camp for four weeks in the Georgia mountains. It is her second year there, and so we are optimistic that she will have an even better time than last year, and she liked it a lot last year. I got her off the camp yesterday morning. So, my wife and I are now empty-nesters for the next four weeks.

Today’s blog entry is a twofer. That is, one Department of Transportation letter and one case. In both cases, the plaintiffs were represented by Mary Vargas of the law firm Stein and Vargas. Full disclosure: I refer probably three cases a month to Mary. She and her firm do fabulous work, and it is not unusual for me to blog on her cases. Also, with respect to the case that we are going to discuss, my colleague Richard Hunt, beat me to it here. Richard’s blog entries are always provocative. He and I are going to be presenting on two different webinars in Dallas, Texas, on June 26 and June 27. The difference in our perspectives should make for a very lively webinar. The two webinars will discuss the whole deal with service animals and emotional support animals under federal laws and separately, the wild west of Internet accessibility litigation. With respect to signing up for the first seminar dealing with animals under federal laws, you can do so here if you are a member of the Federal Bar Association and here if you are not. As usual, the blog entry is provided into categories and they are: DOT letter facts and holding; DOT letter takeaways; JD v. Colonial Williamsburg foundation introduction and facts; majority reasoning vacating summary judgment and remanding case for further proceedings; dissenting opinion; and thought/takeaways. Of course, the reader is free to focus on any or all of the categories. This blog entry is unusual in that you might get away with respect to the JD v. Colonial Williamsburg sections of the blog entry just reading the facts and the takeaways. I don’t recommend it, but it’s possible as the thought/takeaways section evolved into something rather different this time.

I

DOT Letter Facts and Holding

May 21, 2019 letter from the General Counsel’s office of the US Department of Transportation involving American airlines and a person with severe peanut allergies.

This matter involved a seven-year-old girl with a severe allergy to peanuts, tree nuts and seeds and at risk of anaphylactic shock if she is exposed to or ingests these allergens. Accordingly, upon arrival at the airport to take an American Airlines flight, her father identified her daughter’s severe food allergy to an agent and requested pre-boarding in order to wipe down their assigned seats and tray tables. The American Airlines agent refused the request to pre-board. Also, it was alleged that the agent became hostile when the family identified the disability as a food allergy. A similar set of occurrences occurred in advance of the return flight from Charlotte to Portland.

American Airlines asserted that unlike some carriers, it doesn’t serve peanuts. However, it does serve other nut products. While the airline cleans its aircraft regularly, those cleanings are not designed to ensure the removal of nut allergens nor is its air filtration system designed to ensure the removal of nut allergens. Finally, American Airlines indicated that other customers can bring peanuts or tree nuts on board. Subsequent to the complaint being filed with the Department of Transportation, American Airlines amended its pre-boarding policy to allow pre-boarding for nut allergies effective December 2018.

Based upon the above facts, the Department of Transportation concluded that passengers with severe nut allergies are passengers with disabilities for purposes of the Air Carrier Access Act. Further, when a passenger with a severe allergy asks for pre-boarding to wipe down seating surfaces, that passenger is requesting additional time to be seated because from the passenger’s perspective, the seating area cannot be safely access unless totally wiped down. Accordingly, the Department of Transportation believes that when an airline fails to allow passengers with severe nut allergies to pre-board to wipe down seating services, 14 C.F.R. §382.93 is violated, and therefore, American Airlines gets a warning from the Department of Transportation.

II

DOT Letter Takeaways

  1. 14 C.F.R. §382.93 requires carriers to offer pre-boarding to passengers with a disability who self-identify at the gate as needing additional time or assistance to board, store accessibility equipment, or be seated. Department of Transportation is going on record here that nut allergies are a disability.
  2. Since Delta basically owns Atlanta, has 80% of the gates I have read, Delta is pretty much the option for flying out of Atlanta. Southwest does have a hub here, but I can never get used to the cattle call on Southwest. Also, I have always enjoyed the Delta experience. That said, I know Southwest has a lot of fans out there. What I am trying to say is that Delta is one of those airlines offering nuts on its flights. I happen to love nuts, and they can be healthy too. In fact, just last week, on my way to and back from Portland, Maine, I had almonds as my snack with my usual tomato juice on ice. It would be hard to say how many people on Delta choose nuts for their snack. It would make sense that this family would choose an airline not offering nuts. I suppose this family would have to fly as a group to ensure that a person sitting next to their daughter does not eat nuts. Apparently, the aircraft filtration system works for the daughter so long as her area is wiped down. That may or may not be true for everyone.
  3. The Air Carrier Access Act, as we have discussed here, contains no private cause of action. So, it is remarkable that an attorney of Mary’s stature took on the filing of a matter with the Department of Transportation.

III

J.D. v. Colonial Williamsburg Foundation Introduction and Facts

As I mentioned above, I was first alerted to this case by Richard Hunt’s blog entry on it. I know Richard quite well. His blog entries are always very thought-provoking. He is also extremely knowledgeable about title III of the ADA and the Fair Housing Act as well. He and I communicate regularly. It also is not unusual for he and I to discuss the same cases since our perspectives are so different from each other. The particular blog entry where he discussed this case was so thought-provoking that I had people encouraging me to write my own blog entry on this. Finally, I have warned Mary that this blog entry may not go precisely as she would like, and she was okay with that. Even so, this blog entry has a different take on the case from Richard’s. I do hope you can join us for our webinars in a couple of weeks. I have never actually met Richard in person, and I am looking forward to doing so.

Facts:

JD is an 11-year-old boy suffering from several health problems and experiences a host of symptoms whenever he ingests gluten. Those symptoms include: significant constipation; abdominal pain; foot pain; numbness; cognitive impairment; elevated liver enzymes; and temporary loss of consciousness. The diagnosis is either celiac disease or non-celiac gluten sensitivity. For such a condition, the only medically accepted treatment is a strict gluten-free diet, and JD’s physician is of the opinion that a gluten-free diet is medically necessary for JD. Further, JD’s parent testified that his health significantly approved once he is on a strict gluten-free diet. However, whenever he accidentally ingests gluten even in trace amounts, the symptoms come crashing back. Accordingly, JD’s parents regularly prepare his food and use separate tableware to ensure that he can participate in school parties, celebrations, and meals to the greatest extent possible. Although there are some restaurant his parents do trust, in general, they no longer eat out as a family due to the risk of gluten exposure.

The school went on a field trip to Colonial Williamsburg. That trip included dinner at Shields Tavern. The restaurant has a policy against allowing outside food into its restaurant subject to two exceptions: 1) parents can bring baby food or snacks for infants and toddlers; and 2) patrons may bring cakes and wine for a band subject to a plating and corkage fee. Shields Tavern also appears to allow outside food at the discretion of the manager (emphasis mine).

Months before the trip, JD’s father informed the school that he and JD wouldn’t be eating at any of the restaurants but instead would bring their own food. However, nothing in the record suggested that the school relayed that message to the restaurant. In fact, an invoice from Colonial Williamsburg showed that the school placed an order for two gluten-free meals at Shields Tavern. The parties disputed whether those meals were intended for JD and his father.

When JD and his father arrived at the restaurant, they sat down at a two-person table. The father informed a server not to bring out any food for them. He then unpacked a cooler filled with plates, cups, and utensils, and began making a gluten-free chicken sandwich. Another server told JD’s father that he couldn’t bring in outside food because it would violate the health code. The father then asked to speak to the manager, who confirmed the policy, and insisted that they would have to eat their food outside. The head chef soon arrived and offered to prepare a gluten-free meal for JD.

The Virginia Health Code prohibits food prepared in a private home from being used or offered for human consumption in a food establishment unless the home kitchen is inspected and regulated by the Virginia Department of Agriculture and Consumer Services. That code also requires that food that is unsafe or contaminated must be rendered unusable and discarded.

According to Colonial Williamsburg, the head chef had already prepared the gluten-free meals based on the order placed by the school. JD’s father testified that the meals were not yet prepared and that the head chef offered to prepare them on the spot. The father alleged that he did not trust the tavern to be able to prepare gluten-free meals after preparing fried chicken meals for the other guests. The court said that the District Court properly viewed these facts in the light most favorable to JD.

IV

Majority’s Reasoning Vacating the District Court’s Grant of Summary Judgment and Remanding the Case for Further Proceedings

  1. The ADA was enacted to remedy widespread discrimination against people with disabilities and to provide clear, strong, consistent and enforceable standards addressing such discrimination.
  2. Title III provides that no individual can be discriminated on the basis of disability in the equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.
  3. Prevailing under title III of the ADA means a plaintiff has to show: 1) he is a person with a disability within the meaning of the ADA; 2) the defendant owns, leases, or operates a place of public accommodation; and 3) the defendant discriminated against him because of his disability.
  4. The parties did not dispute that Shields Tavern was a place of public accommodation. They did dispute whether JD was disabled and whether he was discriminated against because of his disability.
  5. The ADA defines a disability as a physical or mental impairment substantially limiting one or more major life activities. Eating is a major life activity.
  6. Viewing the facts in the light most favorable to the plaintiff, the district court correctly believed that JD’s impairment qualified as a disability under the ADA.
  7. Any time you consider whether an impairment substantially limits an individual in a major life activity, that has to be looked at broadly in favor of expansive coverage. That approach is consistent with the purpose of the amendments to the ADA. Finally, the amendment to the ADA make clear that whether a major life activity is substantially limited has to be decided without regards to any mitigating measures, including learned behavioral modifications.
  8. JD submitted extensive evidence about the serious consequences to his health when he ingests gluten.
  9. While no one can eat whatever he or she desires without experiencing some negative health effect, persons with disabilities who have a disability due to severe dietary restrictions must be allowed to enjoy the protections of the ADA. Unlike a person with simple diet restrictions, JD must monitor everything he eats and there is no margin for error. Accordingly, the District Court correctly determined that a genuine dispute of material fact existed as to whether JD was disabled within the meaning of the ADA.
  10. 42 U.S.C. §12182 is the failure to accommodate provisions of title III of the ADA. That particular provision requires a place of public accommodation to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodation to individuals with disabilities in the absence of a fundamental alteration.
  11. Proving up a claim under 42 U.S.C. §12182 involves showing: 1) whether the requested modification is necessary for the individual with a disability; 2) whether it is reasonable; and 3) whether it would fundamentally alter the nature of the public accommodation. For each element, the ADA requires an individualized inquiry based upon the particular circumstances of that case.
  12. In determining whether a modification is necessary, the Fourth Circuit uses a like experience standard. That is, you start by considering how the facility is used by persons without disabilities and then consider what are the necessary and reasonable steps to provide guests with disabilities with a like experience.
  13. The District Court erred by not drawing the factual inferences stemming from JD’s history of repeatedly getting sick when eating purportedly gluten-free meals prepared by commercial kitchens, which he says shows that he was at a significant risk had they accepted the gluten-free meal offered by the restaurant.
  14. In a footnote, the court could not see how sitting at a restaurant and not eating would have provided JD a like experience to the people without disabilities.
  15. The necessary inquiry requires an individualized inquiry into the plaintiff’s capacity. Here, the evidence showed that JD repeatedly became sick when exposed to gluten at restaurants and that happened despite his parents best effort to ensure gluten-free meals.
  16. While it is true that the restaurant averred that rigorous protocols existed for preparing gluten-free needles and that a jury might well reject JD’s evidence about the severity of his gluten intolerance and find that the restaurant’s protocols were sufficient to account for his disability, JD did put forth enough evidence to raise a genuine dispute of material fact as to whether that accommodation sufficiently accounted for his disability. So, the District Court’s granting of summary judgment that the accommodation proposed was not necessary must be overturned.
  17. Whether an accommodation is reasonable is a fact specific inquiry looking to whether modification is reasonable under the circumstances. One of the things to think about is whether the cost of the accommodation does not clearly exceed its benefits.
  18. JD pointed out that the restaurant allows parent to bring in outside food for toddlers and infants. The record also shows that two weeks after the events in this case, the restaurant granted a similar accommodation to a child visiting a different one of its restaurants. In that situation, the restaurant was notified before the child’s visit of severe allergies and Colonial Williamsburg determined that it could not accommodate him. So, it allowed the child to eat a homemade meal in the restaurant. The fact that Colonial Williamsburg granted a similar request speaks directly to the reasonableness of JD’s request.
  19. Colonial Williamsburg’s argument that advanced notice is required makes no sense. Nothing in title III of the ADA or the implementing regulations mandate prior notice at a place of public accommodation. In fact, the regulations emphasized that advanced notice requirement are generally undesirable and should only be used when necessary to ensure the accommodation can be made.
  20. In this situation, advanced notice wasn’t necessary because JD was not asking the restaurant to take any action or provide any additional services. Further, the restaurant allows outside food for toddlers and infants without prior notice.
  21. With respect to the state health code provision, Virginia case law has never interpreted the provision. The Fourth Circuit believed that the provision was actually vague because while the provision does prohibit restaurants from serving food prepared in a private home, that provision doesn’t necessarily prohibit customers from bringing in outside food.
  22. While a place of public accommodation can impose legitimate safety requirements necessary for safe operation per 28 C.F.R. §36.301(b), those safety requirement don’t always override a reasonable modification request. Further, it is not even clear here whether JD’s request posed a safety concern in the first place since there is no evidence of the risk of contamination from JD’s meal and the restaurant permits guest to bring outside food in other circumstances.
  23. The defendant bears the burden of proof when it comes to fundamental alteration, and the Fourth Circuit holds that a genuine issue of material fact exists here as well.
  24. A fundamental alteration is anything that is a modification to an essential aspect of the place of public accommodation’s program.
  25. Food service is an essential aspect of the restaurant.
  26. No evidence exists that Colonial Williamsburg has been deluged with request from people seeking to bring in outside food to the extent that it could not give individualized attention to the handful of requests that it might receive.

V

Dissenting Opinion by Judge Wilkinson

  1. Judge Wilkinson also refers to 42 U.S.C. §12182(b)(2)(A)(ii), title III failure to accommodate provisions with respect to policy, practices, and procedures.
  2. He also agrees with the three-part inquiry for handling cases under this regulation.
  3. Necessity is determined with respect to the person with a disability ability to obtain full and equal enjoyment of the place of public accommodation. That means the ADA requires a customer with a disability to have an experience that is as equal as possible.
  4. As long as a guest with a disability has meaningful access to a place of public accommodation, the ADA’s requirements are satisfied.
  5. The availability of the restaurant’s gluten-free meal allowed JD meaningful access to the restaurant offering and renders the modification sought by JD unnecessary.
  6. When JD arrived at the restaurant on a class trip, the head chef, Anthony Zurowski, offered to personally make and serve JD a gluten-free meal. Had JD accepted the offer, he would have been able to sit with his classmates inside the tavern and enjoy its educational offering alongside them. Instead, JD decided to eat a meal prepared at home. He was asked by the restaurant to do that at some nearby picnic tables. After finishing his home prepared meal, JD rejoined his classmates in the tavern for the remainder of their time there.
  7. JD’s own expert testified that the meal offered by the head chef would have been gluten-free. Also, no dispute existed that the head chef had extensive training as a chef, including one-on-one training from Colonial Williamsburg’s head chef specifically focused on gluten-free meal preparation. Therefore, the head chef: knew how to ensure that JD’s gluten-free meal was not contaminated by any trace amounts of gluten; knew how to use a separate designated area to prepare the meal; knew how to sanitize the area and his utensils beforehand; knew how to use a fresh set of gloves and aprons; and knew to use a separate oven. Further, once the meal left the kitchen, no dispute existed that the restaurant’s procedures required that JD’s meal be labeled gluten-free and that the food be specially covered with a meal lit to avoid cross-contamination. Other facts include: the restaurant had extensive experience preparing gluten-free meals for patrons with disability similar to JD’s; over the past five years, the head chef had prepared roughly 4 to 5 gluten-free meals a day for a total of over 5000 meals without ever receiving a single complaint that the meals actually contain gluten; and JD’s father even admitted he had no reason not to trust the tavern’s kitchen staff.
  8. If JD had accepted the restaurant’s genuine offer of a gluten-free meal, he would have had a virtually identical experience to that of his classmates.
  9. The ADA does not require places of public accommodation to provide the precise modification requested by an individual with a disability. Instead, the ADA allows places of public accommodations the freedom to decide how to best provide meaningful access to patrons with disabilities.
  10. Reasonableness must be evaluated with respect to the disruption of the restaurant’s business and the threat to safety occasioned by the modification. A policy allowing patrons to consume home prepared meals inside the restaurant with no advance notice affects a significant disruption on the restaurant’s business.
  11. Allowing patrons to ignore the restaurant’s menu disrupts business. It would let people bring in their own meals, occupy the restaurant’s tables, and take time and attention of the servers, and otherwise divert resources from paying customers all without ever purchasing food from the restaurant itself. Such a policy denies the restaurant much needed revenue in an industry that is notoriously low margin. It also denies the servers gratuities they rely on to make ends meet as tips are usually calculated based upon the cost of the food ordered from the restaurant. Such disruptions are in no way mandated by the ADA.
  12. Allowing patrons to consume home prepared meals opens the gate to all manners of cuisines without any respect for the restaurant’s historical theme. People can bring in food utterly inconsistent with the atmosphere provided by the restaurant. The smell of the food or even its appearance might spoil and undercut the experience for paying customers.
  13. Food brought from home may pose a safety hazard to the restaurant’s other customers. The presence of outside food in the restaurant also increases the risk of provoking food allergies and sensitivities in other patrons.
  14. The proposed modification is unreasonable because it imposes a vague and unmanageable standard on restaurants everywhere. Under the majority rule, a patron requests to be allowed to eat outside food will sometime be reasonable and other times not, thereby, putting managers in the middle of a crazy line drawing exercise without any defined criteria for them to apply. Under the majority rule, advanced notice is not even required. Therefore, restaurant managers would have to evaluate any disruption in the safety hazard of the customer’s outside meal on the fly with the specter of litigation overhead. Finally, under the majority rule, even restaurants that have made intense efforts to prepare gluten-free meals are strung up for liability. Such a rule could only be dreamed up in the judicial monastery.
  15. While it is possible that Colonial Williamsburg may well prevail at trial, the majority reasoning has the flavor of a de facto per se rule. That is, restaurants must either allow patrons to consume food prepared outside the premises or they must justify that refusal at a costly trial.

VI

Thoughts and Takeaways:

  1. What is really going on here and how did we get here? In my opinion, what is really lurking here, is that title III of the ADA contains no specific requirements of an interactive process. If title III of the ADA contained an interactive process requirement, then you could argue that the restaurant and JD’s family had the obligation to engage in an interactive process. Such an interactive process may have included the chef specifically explaining and even showing JD and his family just how the gluten-free meal would be prepared and where it would be prepared. I don’t see why the family would necessarily have to enter the kitchen to do that. Even so, perhaps the restaurant could have taken the same health precautions that their cooks take prior to entering the cooking area so that they could see how the gluten-free meal would be prepared.
  2. If an interactive process was required by title III, then if the restaurant specifically showed JD and his family how the gluten-free meal would be prepared and all the precautions they took, and the family nevertheless walked away from the accommodation, then you could say that the family blew up the interactive process. Under title I of the ADA and case law interpreting the interactive process, the party blowing up the interactive process bears the consequences.
  3. Arguing that an interactive process applies to title III is not a stretch. There are cases interpreting title II holding the interactive process applies to title II. After all, how can you come up with a reasonable modification if you don’t engage in an interactive process?
  4. The other problem here is that title III has no explicit provisions for a person with a disability being otherwise qualified/qualified. If title III had such explicit provisions, then you would look to the essential eligibility requirements of the business and try to determine whether a reasonable accommodation makes any sense. It isn’t a stretch to find an otherwise qualified requirement in title III because how can you figure out if a fundamental alteration exists without knowing the essential eligibility requirements of the business? Judge Wilkinson essentially takes this approach in his dissent. In fact, the majority and the dissent disagree on just what is the essential eligibility requirement at issue. The majority view is that the essential eligibility requirement is eating in the restaurant. However, the dissent’s view is that the essential eligibility requirement is eating food prepared by the restaurant. You get to different places depending upon how you characterize the essential eligibility requirement.
  5. The ADA requires an individualized analysis based upon the particular circumstances of the case. The history that JD and his family had with other restaurants is historical, but shouldn’t be the deciding factor with respect to the particular restaurant. The key should be just what are the individual facts found in this situation. Again, importing essential eligibility requirements from title II and the interactive process from title I would solve a lot of his confusion.
  6. Is there a title II case against the school? The parents notified the school that they needed a gluten-free meal. The school then may or may not have relayed the message to the restaurant. Since the essential eligibility requirements of the field trip was going to Colonial Williamsburg and having lunch at the restaurant, an argument exists that the school may have violated its title II obligations. I also don’t think that the plaintiff would have to exhaust administrative remedies either in an action against the school system given the case we discussed here.
  7. I agree with the majority that the Virginia Health Code prohibiting food prepared in a private home from being used or offered for human consumption in a restaurant is vague.
  8. If you are a restaurant and a person shows up with home food because of a gluten-free allergy situation, it would be a really good idea to engage in an extensive interactive process with the family to see if there is some way the restaurant can serve food to the family. It would also be a good idea for a restaurant that does prepare gluten-free meals for its customers to have rigorous protocols for doing so and to be able to explain and demonstrate them if need be.
  9. I find the like experience standard a bit unwieldy. The problem with the like experience standard is that it most likely involves a person without a disability, a judge, trying to compare that experience to the experience of people with disabilities. That, is a very difficult task indeed.
  10. The restaurant ran itself into a problem with its policy of allowing parents to bring in outside food for toddlers and infants. It ran itself into a bigger problem when Colonial Williamsburg granted a similar accommodation to a child visiting another of its restaurants. Moral of the story here: training, training, training, and more training is necessary across all of a company’s restaurants. Further, everybody should receive the same high quality training and the restaurant needs to be monitored to ensure that they are doing it right.
  11. As a person with a disability, I get the whole advanced notice debate. I want to be able to show up anywhere I want without advanced notice and be accommodated. For example, I expect restaurant, movie theaters, and entertainment venues to have what I need if I just want to show up on the spur of the moment. On the other hand, sometimes it is more complicated than that. For example, as a consultant, I do some traveling. It is a real pain in the tuchas, but after making my hotel reservation at the hotel’s central reservation booking system and asking for a room for persons with disabilities, I always call the hotel directly and have an elaborate conversation with them about what it means to accommodate a deaf patron in the hotel room. If I don’t have that extensive conversation with the hotel itself, no way are the accommodations put in place when I walk into the room. Even if I have that conversation, it is anybody’s guess as to whether the room will accommodate me once I get there.
  12. Another thing missing from this case, is the concept of direct threat, which we discussed here. Both the majority opinion and the dissenting opinion talk about safety requirements and reach different conclusions. To borrow from other sections of the ADA, direct threat needs to be based upon the best objective and current medical evidence. Of course, that is nice to say, but how that can possibly be carried out in the restaurant setting is a difficult question for sure, especially when a restaurant allows food to be brought in in some circumstances.
  13. Fundamental alteration is an affirmative defense and the burden is on the defendant.
  14. The dissent’s standard that a person with a disability is only entitled to an experience “as equal as possible,” as a person without a disability also troubles me. The reason it troubles me is once again you have a judge, probably one without a disability, deciding what is an equal as possible experience when compared to persons without disabilities. I would prefer the more objective meaningful access standard over an “equal as possible,” standard.
  15. One thing that is happening more and more now is you are seeing litigation over what is necessary. Litigation over what is necessary is a recent development, but I would expect that trend to continue.
  16. Absolutely agree that the ADA does not require places of public accommodation to provide the precise modification requested by the disabled individual. However, if that is the case, then the ADA must require outside of the employment context an interactive process. How else can this be figured out?
  17. I don’t agree with the dissent’s view that people who bring in home-cooked meals will stiff the servers on tips. It doesn’t work like that. Oftentimes, a person is so grateful for being accommodated, that they will leave a tip as if they had purchased a meal even though they didn’t.
  18. A petition for an en banc rehearing would not surprise me.
  19. The majority keep referring to “because,” when it comes to causation. However, that isn’t the standard. For title III claims, the standard is on the basis of per 42 U.S.C. §12182(a).
  20. Appealing this decision to the United States Supreme Court would be very dangerous assuming that the United States Supreme Court would take it. There are all kinds of wildcards here. For example, the Supreme Court could decide that on the basis and because mean two different things. Also, the Supreme Court could decide that title III incorporates an otherwise qualified/qualified element into it. They could also decide that title III incorporates an interactive process. It is not a given at all that the United States Supreme Court would necessarily decide with the Corporation when it come to this scenario, which is a nonemployment scenario. As I have mentioned before, persons with disabilities have fared very well at the Supreme Court outside of the employment context. So, if I was on the defense side here, I would probably pass on appealing to the United States Supreme Court. I might go for an en banc rehearing. Otherwise, I would take my chances at trial. Just too many things could happen at the Supreme Court with this particular case to risk it.