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

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

 

I

Key Allegations from the Complaint

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

II

Lots of Questions/Thoughts

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

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

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

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

 

I

What It All Comes down to

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

II

Title VI of the Civil Rights Act

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

III

§504 of the Rehabilitation Act

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

IV

Title II of the ADA

 

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

V

Dissent by Judge Branch

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

VI

Takeaways

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

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

 

I

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

 

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

 

II

Court’s Reasoning Association Discrimination

 

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

 

III

Miscellaneous Matters

 

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

 

IV

Thoughts/Takeaways

 

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

blood plasma

 

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

 

I

Court’s Reasoning

 

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

 

II

Takeaways

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

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

I

Summary of Facts

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

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

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

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

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

II

ADA Statute of Limitations Was Not Missed

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

III

Due Process Claims and Qualified Immunity

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

IV

What Does Due Process in a Disciplinary Matter Look like

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

V

Takeaways

 

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

Today’s blog entry is a case that I have blogged on before twice, here and here. On August 15, 2019, the 11th Circuit came down with its second decision on this case, here. Since I have blogged on it before twice, there isn’t any need to cover the facts except through the court’s reasoning. The prior appeal to the 11th Circuit just discussed the civil rights aspect of the case and not the ADA. This appeal to the 11th Circuit discussed the ADA and revisited the civil rights claims. It also looked at municipal liability under §1983, which the court threw out. I don’t see a need to discuss the municipal liability section under §1983. Finally, there was a concurring and dissenting opinion. The concurrence agrees with dismissing the municipal liability claim and would have thrown out the ADA and civil rights claims as well. As usual, the blog entry it divided into categories and they are: court’s reasoning actual disability and regarded as; court’s reasoning qualified individual; court’s reasoning direct threat; court’s reasoning racial and gender discrimination claims; and takeaways. The reader is free to focus on any or all of the categories.

 

I

Court’s Reasoning Actual Disability and Regarded As

 

  1. While plaintiff certainly had a physical or mental impairment with respect to her heart condition, she simply didn’t bring forth enough evidence to permit a conclusion that the physical impairment substantially limited a major life activity. For example, she testified that she had periodic shortness of breath, and her doctor testified that it could limit her ability to sleep. However, no evidence existed as to the severity, frequency, and duration of the episodes with respect to shortness of breath. Further, there wasn’t any evidence discussing the extent of plaintiff’s ability to sleep that could lead a reasonable jury to conclude she was substantially limited in a major life activity.
  2. The ADA allows for a cause of action where the an employer regards an employee as having a disability.
  3. Plenty of evidence existed to raise a genuine issue of fact as to whether plaintiff’s employer regarded her as having a disability. In particular: 1) Assistant Chief Brown in his June 17 letter referred to her chronic conditions and instructed her to complete FMLA paperwork thereby suggesting that he believed plaintiff had a medical condition warranting medical leave; 2) on July 1, Assistant Chief Brown prohibited plaintiff from returning to work until everything was cleared up with her doctor. He also said that her Dr.’s letter essentially made it impossible for her to work or be at work and concluded that she could not return until her doctor released her for duty. That email again referred to the possibility of plaintiff taking leave under FMLA; 3) the department’s own stated reason for putting plaintiff on leave, i.e. a fear for her safety in view of her heart condition, demonstrate the department’s belief that plaintiff’s medical condition set her apart from other police officers.
  4. Looking to an EEOC guidance, an employer engages in prohibited conduct regarding a person as having a disability where it takes adverse action because it fears the consequences of an employee’s medical condition.

II

Court’s Reasoning Qualified Individual

 

  1. A qualified individual under title I of the ADA is a person who with or without reasonable accommodation, can perform the essential functions of the employment position that he or she holds or desires.
  2. Essential functions of the job are evaluated on a case-by-case basis after examining a number of factors. Courts do consider the employer’s judgment of whether a particular function is essential and may even cut the employer more slack when the employer is a Police Department. Courts also consider the EEOC seven factors as well.
  3. The employer’s judgment as to what are the essential functions of the job is not by itself conclusive.
  4. The city’s written job description for the position of detective nowhere mentions it is necessary for a detective either to carry or to be exposed to OC spray or a Taser shock. In fact, there is no such mention of any of that in an entire paragraph listing various physical demands of the job.
  5. The work environment section states that a detective has to be willing to carry a firearm on and off the job and be mentally and physically capable of using deadly force if justified. However, it contains no reference to OC spray or Taser.
  6. Plaintiff offered evidence that detectives previously were permitted the choice of what nonlethal weapon or weapons to carry. Further, neither party disputed that Taser International does not require trainee to receive a shock in order to become certified in Taser use.
  7. Plaintiff clearly presented enough evidence to show that a jury would be justified in concluding that receiving a Taser shock or direct exposure to OC spray was not an essential function of her job. As a result, that means plaintiff was a qualified individual.
  8. In a footnote, the court said that ample evidence existed that plaintiff could withstand indirect exposure to OC spray that would allow her to work inside the Police Department building if that option have been made available to her.

 

III

Court’s Reasoning Direct Threat

 

  1. Plaintiff produced sufficient evidence that she is not a direct threat.
  2. Direct threat means a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodations. See 29 C.F.R. §1630.2(r).
  3. Direct threat, as we have discussed previously here, has to be based on a reasonable medical judgment relying on the most current medical knowledge and/or the best available objective evidence. It also must be based upon an expressly individualized assessment of the individual’s present ability to safely perform the essential functions of the job after considering, among other things, the imminence of the risk and severity of the harm. For this, the court specifically cited to Chevron USA Inc. v. Echazabal, which we discussed here and in numerous other blog entries as well.
  4. The definition of direct threat requires an analysis of the individual’s ability to perform safely the essential functions of the job.

 

 

 

IV

Court’s Reasoning Racial and Gender Discrimination Claims

 

  1. Previously, the 11th Circuit sitting en banc concluded that plaintiff failed to establish a prima facie case of intentional discrimination under McDonnell Douglas because her comparators were not similarly situated in all material respects. Thus, that particular aspect of the ruling is binding on this panel.
  2. Even without similarly situated comparators, plaintiff can still get by summary judgment if he or she presents circumstantial evidence creating a triable issue concerning the employer’s discriminatory intent. After all, not every employee can produce a similarly situated comparator. Further, a proper comparator may not exist in every workplace. Therefore, a plaintiff always gets by summary judgment if he or she can present a convincing mosaic of circumstantial evidence that allows a jury to infer intentional discrimination.
  3. A convincing mosaic can be demonstrated in a variety of ways, including: 1) suspicious timing, ambiguous statements and other bits and pieces from which an inference of discriminatory intent might be drawn; 2) systematically better treatment of similarly situated employees; and 3) the employer’s justification is pretextual.
  4. Plaintiff presented a mosaic of circumstantial evidence raising a genuine issue of material fact as set forth in the paragraphs that follow below.
  5. Union City initiated plaintiff’s indefinite administrative leave on June 17 and informed her on July 1 that she would not be permitted to return to work until she was medically cleared. Yet a week later, and despite plaintiff’s request to return to work and the police chief’s explicit denial of that request, Union City terminated her for being absent without leave.
  6. Union City gave plaintiff no warning that if she exercised the option to use her accrued leave instead of being on non-pay status, she would be terminated upon taking that option.
  7. Union City gave her no notice she had to file FMLA paperwork by any specific date nor did the department’s written FMLA policy provide any such deadline.
  8. At no time was plaintiff told she would be terminated if her doctor failed to contact the department on the very first day the doctor returned from vacation.
  9. There is also plenty of evidence that Union City’s stated reason for firing plaintiff were pretextual as discussed in the following paragraphs.
  10. Plaintiff can show pretext in any of the following ways: 1) casting sufficient doubt on the defendant’s proffered discriminatory reason so as to permit a reasonable factfinder to conclude the employer’s reasons were not what actually motivated its conduct; 2) showing that the employer’s articulated reason is false and that the false reason led to the discrimination; or 3) establishing that the employer failed to clearly articulate and follow its formal policies.
  11. One of the reasons offered by Union City was that her medical condition was permanent. However, evidence exists suggesting the department believed either that plaintiff was faking her medical condition or that her condition was not sufficiently serious to prevent her from working as a detective. In fact, the initial letter placing plaintiff on leave stressed that she had been cleared for full duty without restrictions after a heart attack and emphasized that the letter disclosing her chronic condition came as a surprise.
  12. Plaintiff’s doctor testified that the Assistant Chief made clear to plaintiff’s doctor in a telephone conversation that he thought her letter was more a product of plaintiff’s influence than her unbiased medical judgment. In fact, the Assistant Chief at his deposition testified that he doubted plaintiff’s doctor truthfulness more generally.
  13. Two of Union City’s police chief’s letters could reasonably be construed as indicating that plaintiff’s doctor would ultimately clear plaintiff for duty and that the medical condition, in the department’s view would not permanently prevent plaintiff from doing her job as a detective.
  14. Plenty of evidence exists that the argument that plaintiff did not timely submit her paperwork was just a pretext.
  15. Evidence existed permitting the conclusion that two Caucasian officers in a similar situation to plaintiff were treated differently. However, the white officers were treated more favorably than the plaintiff because they were given extended periods of time to attempt to demonstrate their physical ability they needed, but plaintiff was fired without warning.
  16. A reasonable jury could find that Union City did not consistently exercise its authority in placing physically unfit officers on administrative leave and that Union City did not comply with its own policies.
  17. One Caucasian officer was offered a transfer to a position not requiring him to continue taking the fitness test that he failed while plaintiff was fired without notice after 21 days of administrative leave and was offered no such alternative assignment before termination.
  18. Union City had a history of working with others with a heart condition to allow them to receive a milder version of Taser training with respect to officers with heart conditions but that option was never offered to the plaintiff.
  19. A Union City Lieutenant testified that the department treated women differently than men with regards to the cases assigned to them.
  20. Plaintiff by her termination undoubtedly suffered an adverse action i.e. a change in the terms of her employment.

V

Takeaways

 

  1. A regarded as cause of action does not require a substantial limitation on a major life activity. Thanks to the amendments to the ADA, it only requires the employer regard the person as having a physical or mental impairment.
  2. The employer’s judgment as to what the essential functions of the job is not the be-all and end-all of things.
  3. Keep your written job descriptions current.
  4. Antidiscrimination policies for dealing with people with disabilities are always a good idea. Also, make sure those policies are implemented without favoritism and in a consistent manner. Keep in mind, when it come to the ADA, consistently doing an individualized analysis is where you need to go.
  5. I’ve seen many folks get hung up on direct threat because they don’t read Chevron v. Echazabal. Remember, direct threat has to be based on a reasonable medical judgment relying on the most current medical knowledge and or the best available objective evidence. It also needs to be based upon an individualized assessment as well. I have also seen lots of entities make a mistake by not doing the individualized assessment.
  6. This isn’t the first time we have seen convincing mosaic. We saw it here. What is interesting in this case, is that the 11th Circuit says that convincing mosaic is a fallback were no comparators exist. In the Seventh Circuit, as we discussed previously, convincing mosaic is another way to deal with McDonnell-Douglas regardless of whether the proof is indirect or direct.
  7. Insisting on a full return to work is always a bad idea. We discussed that issue here.
  8. Remember, otherwise qualified/qualified is a question of whether the individual can do the essential functions of the job with or without reasonable accommodations.
  9. Convincing mosaic is a fairly new idea. It will be interesting to follow what happens from here on out. Expect the United States Supreme Court to deal with it eventually.
  10. The 11th Circuit nicely lays out what is needed to show it convincing mosaic and what is necessary to show pretext.

Before starting on today’s blog entry, I do want to wish a speedy recovery to Justice Ginsburg. Regardless of your political views or your jurisprudential views, you can’t argue that Justice Ginsburg is not one of the legal titans of the late 20th and early 21st century. Wishing her a speedy recovery.

 

Today’s blog entry is a case that came down from the Ninth Circuit holding that causation for title I claims are, “but for.” We will explore the court’s reasoning, and then in the counterargument/thoughts section, I will proceed to tear that reasoning apart. Definitely, look for a petition for an en banc rehearing as a panel overrules prior Ninth Circuit precedent. The case of the day is Murray v. Mayo Clinic decided on August 20, 2019. The facts don’t really matter because causation is the question. What happened here was the plaintiff loses at trial. Plaintiff wanted a mixed motive instruction but got a but for instruction instead. Plaintiff appeals saying that instruction was in error. As usual, the blog entry is divided into categories and they are court’s reasoning and counterargument/takeaways. I imagine you will want to read the whole thing.

 

I

Court’s Reasoning

  1. Motivating factor is irreconcilable with Gross, discussed by us many times previously, such as here, and Nassar, discussed here.
  2. Title I of the ADA prohibits discrimination on the basis of disability.
  3. In 42 U.S.C. §12117(a), only one of the cross-referenced sections references a causation standard. That standard references motivating factor but that in turn focuses on a section that doesn’t talk about disability discrimination at all.
  4. The Supreme Court held in Gross that retaliation claims under the Age Discrimination in Employment Act were governed by a but for standard.
  5. The Supreme Court in Nassar held that title VII retaliation claims are also governed by a but for standard.
  6. After those two cases, Circuits have retreated from a motivating factor standard in ADA cases.
  7. The motivating factor standard for causation is appropriate for employment discrimination claims under title VII.
  8. The ADA does not contain any explicit motivating factor language.
  9. Under Gross, “on the basis of disability,” indicates but for causation.
  10. In the motivating factor section of the statute, disability is not mentioned. So, it would be improper to conclude that what Congress omitted from the statute is nevertheless within its scope.
  11. No meaningful textual difference exists between because of disability and on the basis of disability. The Second and Fourth Circuit found nothing in the legislative history indicating Congress intended to modify the ADA’s standard for causation.

 

II

 

Counterarguments/Thoughts

 

  1. Both Gross and Nassar are easily distinguishable. In Gross, it was a retaliation claim under the Age Discrimination in Employment Act. Also, the Age Discrimination in Employment Act uses the term “because,” and not the term, “on the basis of.” Nassar was also a retaliation claim, this time under title VII of the Civil Rights Act. In that case, the Supreme Court specifically held that retaliation claims are governed by a but for standard. However, the majority opinion specifically noted that status based claims are not governed by that standard. Discrimination on the basis of disability is status based, and therefore, per Justice Kennedy, not subject to but for causation under Nassar.
  2. It is incorrect that legislative history doesn’t exist as to why Congress went with “on the basis,” v. “because.” More on that in a minute. I can tell you as a former member of the Illinois Senate Democratic legal staff, legislators and their staff counsel don’t go changing words for the heck of it (unless it is a shell bill, which the amendments to the ADA clearly were not). If they change a word, there is an intent behind it. In fact, legislative history discussing why the change was made does exist. I am clueless as to why nobody is finding it. In particular, H.R. Rep. 110-730 at the discussion of, “Discrimination on the Basis of Disability,” says that the reason why “on the basis,” was inserted into the ADA was to ensure that the more direct language, structured like title VII placed the emphasis on the critical inquiry of whether a qualified person with a disability has been discriminated against on the basis of his or her disability and not upon whether a particular person was even a person with a disability, and therefore, subject to the protection of the ADA in the first place. Further, that same section of the House Report goes on to say that the term “qualified,” remains in the ADA because the House wanted to make clear that the burden shifting framework applicable to cases involving the indirect method of proof applies to the ADA. Of course, that burden shifting framework presumes motivating factor.
  3. A motivating factor approach is consistent with achieving the purpose and findings behind the ADA in the first place as set forth in 42 U.S.C. §12101.
  4. If I am the plaintiff, I am definitely petitioning for rehearing en banc for two reasons. First, a panel overrules a prior decision of the Ninth Circuit. In many Circuits, that automatically generates an en banc rehearing. Second, a strong argument exists, as mentioned above, that the Ninth Circuit panel here misinterpreted Gross and misinterpreted Nassar. It also did not look at relevant legislative history. Perhaps, the attorneys had not read my book as the legislative history discussion with respect to the change from “because,” to “on the basis of,” appears on pages 173-174 of Understanding the ADA, fourth edition. The burden shifting discussion in the House Report immediately follows the discussion of the change to “on the basis of,” from, “because of.”
  5. Not all plaintiff lawyers are a fan of motivating factor. Some have told me that it is just too complicated. Juries are more likely to understand but for causation. Of course, the problem with but for is what happens when there is more than one cause, which is usually the case. A couple of things here. First, even cases talking about but for causation will mention that but for is not the same thing as sole cause . Second, if there is more than one cause, what standard can you use? We discussed one such possibility, necessary cause, here.
  6. This case is definitely worth following and eventually will make its way to the Supreme Court. When it get to the Supreme Court, it will be very interesting as persons with disabilities have not fared well when it comes to employment issues. On the other hand, this isn’t really an employment law question, but rather a question of how broadly the statute should be read, whether two United States Supreme Court cases are being interpreted properly, and the importance of legislative history that for reasons unknown was not brought forth.

I now have an embarrassment of riches. A whole bunch of cases in my pipeline. It happens sometimes that way. Before I get started, if you are the father of a daughter that plays athletics or a daughter that played athletics and wants a book that explains the impact that can have on a person, then you can’t do better than this book, State by Melissa Isaacson. In the interest of full disclosure, her book covers the time of my last three years at the same high school and my freshman year in college. She was one year behind me. I knew many of the girls profiled in this book by sight, but nothing beyond that. I also did attend the games in high school and at least once during my freshman year of college. I did, however, know the coach of the state championship team. As a result of a mutual love for country music at the time, he wound up being my personal driver education instructor because no other person in near north suburban Chicago at that age was interested in country music (on car trips, I will now turn on 70s-90s country music, but otherwise today, I listen to classical and jazz). State is right up there among the best sports memoirs I’ve ever read.

 

Turning to the blog entry of the day, I narrowed it down to two different ones. The 11th Circuit just came down with a decision on a case that we have blogged on twice before. So, I am going to get to that one. However, the absolute hottest area of ADA litigation is Internet accessibility. Recently, the Supreme Court of California in a non-disability related case, just came down with a holding that will likely send the number of Internet accessibility cases in California through the roof. Since California is the most populous state in the country, this is big news. As usual, the blog entry is divided into categories and they are: facts; issue presented; holding; court’s reasoning; and takeaways. Of course, the reader is free to focus on any or all of the categories. The blog entry is on the short side, I’m figuring the reader is probably going to read the whole thing.

 

I

Facts

The case came to the California Supreme Court by way of a Ninth Circuit decision certifying the question for consideration by the California Supreme Court. The facts are pretty simple. Square offers an Internet service allowing individuals to accept electronic payment without themselves directly opening up a merchant account with any Visa or MasterCard member bank. Square does not charge users any fee to register for services. Rather, Square collects a percentage of every transaction as well as a flat fee for each transaction. The terms of service states that the user cannot use Square if they are a bankruptcy attorney or a collection agency engaged in the collection of debt. After thoroughly investigating the matter, White, a bankruptcy attorney, decided not to click continue on the website because he had a letter from Square’s counsel to a business saying that signing up for Square under such circumstances would be fraudulent. White then sues for violating the Unruh Act.

 

II

Issue Presented

Does a plaintiff have standing to bring a claim under the Unruh Civil Rights Act when the plaintiff visits a business website with the intent of using it services, encounters terms and conditions that allegedly deny the plaintiff equal access to its services, and then leaves the website without entering into an agreement with the service provider?

 

III

Holding

A person who visits a business’s website with intent to use its services and encounters terms or conditions that excludes the person from equal access to its services has standing under the California (Unruh) Civil Rights Act.

 

III

Court’s Reasoning

  1. The purpose of the Unruh Civil Rights Act is to create and preserve a nondiscriminatory environment by banishing or eradicating arbitrary invidious discrimination by California business establishments.
  2. The Act protects each person’s inherent right to equal access to all business establishments and has a broad remedial purpose and overarching goal of deterring discriminatory practices by businesses. Accordingly, the Act must be liberally construed to carry out that purpose.
  3. When a person visits a business’s website and encounters a discriminatory provision in the business’s terms of service, that person that has experienced an interaction separate and apart from merely learning about a business’s discriminatory policy or practice secondhand.
  4. It is not any different than the law not requiring a black plaintiff to make use of a black only facility in order to have standing to pursue a claim. In fact, the same rule applies where a person visits and intends to patronize and unattended establishment generally open to the public, such as a self-serve kiosk, but then encounters a sign prohibiting access on the basis of a person’s membership in a protected category. Such individuals do not need to violate or attempt to violate the exclusionary policy before bringing a claim.
  5. White was effectively refused service by Square upon visiting its website with the intent of subscribing and then encountering its allegedly discriminatory terms of service.
  6. With respect to claims ballooning as a result of the decision, if that is going to happen, then it is up to the legislature to fix it.

 

IV

Takeaways

  1. The court uses both the term “terms and conditions,” and the term, “terms or conditions.” The distinction is important. The term “terms and conditions,” typically in our business refers to a legal document, i.e. terms of service. On the other hand, “terms or conditions,” literally has two separate meanings. It literally addresses terms and separately conditions. The inability of a screen reader user or a voice dictation user, such as myself, to use an Internet site is clearly a condition that person is faced with. That isn’t necessarily the same as a terms and conditions document. So, look for lots of litigation over whether the California Supreme Court meant terms and conditions as a document or whether it meant terms or conditions as separate concepts.
  2. Very interesting that the California Supreme Court brings up the self-serve kiosk. We discussed that case here. In that situation, the United States Supreme Court denied certiorari. However, in California anyway, a plaintiff now has California Supreme Court precedent to argue that a kiosk needs to be nondiscriminatory to protected classes, such as persons with disabilities.
  3. California not too long ago passed a law trying to get a handle on architectural barrier litigation under its Civil Rights Act. One wonders if the California legislature will not wind up doing the same with respect to website accessibility litigation. Since California already has the ability to get damages for violating the ADA under the Unruh Act even where the ADA does not allow for damages, look for Internet accessibility cases to absolutely balloon in California.
  4. Readers may want to look at this article, which I published in law technology today on August 12, to help understand the legal universe of Internet accessibility. It also contains some ideas on how to deal with it.
  5. Remember, under the ADA, the question is going to be meaningful accessibility.
  6. I am not a California licensed attorney even though I received my J.D. degree from the University of San Diego. I knew early on that I was not going to stay in California. So, I never took the California bar. When it comes to the California (Unruh) Civil Rights Act, be sure to get a licensed California attorney involved.

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.