I have long been interested in the ADA and how it applies to sports. In the very first edition of my book in 2000, I talked about the hypothetical of what would happen if Sean Elliott, who underwent a kidney transplant from his brother in 1999, was given grief when he returned to professional  basketball. For those of us who don’t know about Sean Elliott, he had an absolutely fabulous career at the University of Arizona, where believe it or not, says Wikipedia anyway, he is still the leading scorer after all these years. He then went on to an excellent career in the NBA where he won championships and made numerous All-Star teams. He spent his career with San Antonio at first, then Detroit, and then back to San Antonio. Currently, he is a game analyst for the San Antonio Spurs. In my original edition of Understanding the ADA, I talked about how to analyze the situation where a professional basketball player had one functioning kidney and was given grief. That got into a discussion of playing time, direct threat, among other things. Now, history repeats itself with the case of the day, Hammond v. University of Southern Mississippi, a November 2018 decision from the Southern District of Mississippi. As usual, the blog entry is divided into categories, and they are: facts, court’s reasoning; and takeaways. The reader is free to focus on any or all of the categories.

I

Facts

Plaintiff was a student and football player at the University of Southern Mississippi, and he only has one kidney. According to Plaintiff, USM’s football staff enticed him to transfer to USM by offering a full scholarship if he worked his way onto the team’s two-deep roster. After Plaintiff transferred, he received a physical evaluation at USM’s Student Health Services Center. The report noted that Plaintiff had only one kidney but cleared him to play without restrictions.

During a team practice, Plaintiff mentioned to one of the trainers that he only had one kidney. The trainer immediately removed Plaintiff from practice and took him to the team physician. The physician did not clear Plaintiff to play, citing the potential liability to USM if he were injured. Plaintiff sought a second opinion as permitted by USM’s Sports Medicine Policies and Procedures, and his nephrologist stated that no restrictions were necessary. Plaintiff also offered to execute a waiver of liability, but USM would not allow him to play. Plaintiff filed this lawsuit against USM in the United States District Court for the Middle District of Louisiana. He asserted, among other things, claims of discrimination under the Americans with Disabilities Act and Section 504 of the Rehabilitation Act. Defendant filed a Motion to Dismiss.

 

II

Court’s Reasoning Denying the Motion to Dismiss The §504ClaimAndTitleIIClaim

 

  1. Under 42 U.S.C. §§12102(1),(3)(A), for a regarded as claim, a plaintiff is only required to establish that the defendant knew of the impairment and withheld public services or benefits because of it.
  2. A person with one functioning kidney has a physical impairment as contemplated by the ADA.
  3. The allegations, which must be accepted as true at the motion to dismiss stage, are sufficient to satisfy that burden. In particular: 1) the head athletic trainer removed the plaintiff from practice after learning he had only one kidney; 2) defendant’s team physician would not clear him to play football because he only had one kidney; 3) the head athletic trainer continued to hold him from practice after receiving the report from his nephrologist because the head athletic trainer believed that playing football with one kidney posed a liability issue for the school and a danger to plaintiff’s health; and 4) defendant’s athletic department told other school that he did not pass the physical because he only had one kidney so the plaintiff had trouble landing somewhere else.
  4. University of Southern Mississippi also claimed sovereign immunity, but the court was having none of it because the plaintiff also alleged §504 violations. If an entity receives federal funds, that entity waives sovereign immunity in a suit for damages under §504 of the Rehabilitation Act. So, since the two laws (§504 and title II of the ADA), are virtually identical except for causation, it is not necessary to address the question of whether sovereign immunity applies to the title II claim when it doesn’t to the §504 claim.

III

Takeaways

  1. If one tries to give a hypothetical as to what a regarded as case would look like, you can’t do much better than this one.
  2. Certainly, a person with one functioning kidney has a physical impairment. A person with a one functioning kidney operates in the same way pretty much as a person with two. It would be an interesting question as to whether such a person would have an actual disability. It is certainly possible that is the case, but it wasn’t necessary to visit that question here.
  3. The seminal case on direct threat is Chevron, U.S.A. Inc. v. Echazabal, 536 U.S. 73 (2002). In that case, the Supreme Court said that any direct threat defense must be based upon a reasonable medical judgment relying on the most current medical knowledge and/or the best available objective evidence. Further, that assessment has to be based upon an individualized assessment of the individual’s present ability to safely perform the essential functions.
  4. DOJ’s title II regulations, 28 C.F.R. §35.139, essentially adopt the Chevron formulation. However, unlike the EEOC regulations on direct threat, the title II and title III direct threat regulations put out by DOJ only apply to direct threat to others and not to self. So, in this case, University of Southern Mississippi appears to have not only regarded the plaintiff as having a disability but also made a determination that the person was a direct threat to himself. That presents a problem because the DOJ regulations do not factor in direct threat to self; they only factor in direct threat to others. It certainly does not seem like the plaintiff was a direct threat to others.
  5. Even assuming a title II anything can argue that the ADA would exclude someone from participating in its programs if they were a direct threat to self, there seems to be a question of fact here as to whether the University of Southern Mississippi relied on the most current medical knowledge and/or the best available objective evidence when making its determination. Again, it is certainly not a foregone conclusion, that the direct threat to self defense even exists because the University of Southern Mississippi is a title II entity, and this is not an employment situation.
  6. Colleges and Universities have been fighting tooth and nail that their division I men’s football and basketball athletes are not employees. Here, if the plaintiff was an employee, that would activate the direct threat to self-defense. On the other hand, it would create all kinds of problem for the college or university that they probably don’t want to deal with.
  7. Liability risk isn’t the issue, rather the issue is whether the plaintiff is a direct threat to self or others (if title I), or whether they are a direct threat to others (title II and title III). In a way, this case reminds me of the case, which we discussed here, where the company had a 1% rule with respect to whether a person would be able to do a job with respect to future injuries being possible. The ADA and Rehabilitation Act do not work that way. They both require an individualized analysis using the most current medical knowledge and/or the best available objective evidence before reaching a conclusion that a person is a direct threat.
  8. The case is now finishing up the discovery stage. I am sure the defendant’s motion for summary judgment will be coming before too long.
  9. If I am the plaintiff, I would move to exclude any evidence about direct threat to self since this is a title II case, and therefore, not relevant. It bears noting that the original direct threat case was a Rehabilitation Act case involving direct threat to others and not to self.

This is a situation I see all the time. Let’s say you are at a university. A student goes to disability services, gets an accommodation plan, even gives it to the teacher. The teacher resists. The student may or may not try to fix it until later in the semester figuring that something will develop. Or, I have also seen this, disability services doesn’t have much influence at another one of the University’s schools. That is, disability services focuses on undergraduate programs but the professional schools do their own things regardless of what disability services says. How does a student deal with such a situation and what are the problems? An excellent blog entry discussing all of this can be found here. The question I want to address is a bit different. That is, when does the statute of limitations begin to run. Let’s take a different situation, but analogous. A person with a disability repeatedly notifies a municipality that it is out of compliance with the ADA. Municipality doesn’t do anything to fix the problem. Despite the person’s best efforts, nothing happens. Eventually, the person sues. However, the person sues more than two years after first notifying the City of the problem. The City never fixed the problem. Does the plaintiff lose on statute of limitations grounds. In case you are thinking that this kind of fact pattern is familiar, it is. We discussed that situation here. Turns out that case went up on appeal to the 10th Circuit, and on May 15, 2019, a panel of the 10th Circuit came down with a unanimous opinion adopting the repeated violations doctrine, which definitely bears discussing. Since I have simplified the fact pattern above and also have talked about it extensively in my prior blog entry discussing this case, I am going to dispense with the facts. So, the blog entry is going to be divided into court’s reasoning and takeaways. The reader, of course, is free to focus on any or all of the categories, but probably will wind up reading the whole thing. I want to thank Garret DeReus of Bizer & DeReus in New Orleans for sending the case along to me. I actually had breakfast with Garret when I was attending the Federal Bar Association’s Civil Rights Etouffee in New Orleans. His firm does title II and title III ADA plaintiff work around the country. Congratulations to him on his victory.

I

Court’s Reasoning

  1. A public entity commits a new violation and the qualified person with the disability experiences a new injury each day when the public entity fails to act. In essence, the statute of limitations functions as a look back by restricting a plaintiff’s right to relief for injury suffered during the limitation period immediately prior to filing suit and while the suit is pending.
  2. A public entity violates title II of the ADA and §504 of the Rehabilitation Act every day it fails to remedy a noncompliant service, program, or activity. Therefore, the statute of limitations limits a plaintiff’s right to relief to injuries for the period during the limitation period counting backwards from the day he or she filed the lawsuit and for any injury sustained while the lawsuit is pending.
  3. The doctrine of repeated violations and the doctrine of continuing violation are different animals entirely. The continuing violation doctrine takes a bunch of different occurrences and combines them into one. On the other hand, the repeated violation doctrine takes each occurrence as a separate matter with a separate statute of limitations attaching to each. If you are a visual person, the court discusses this visually in the opinion. I am definitely not a person who learns by diagrams.
  4. On appeal, the plaintiff argued only for the repeated violation doctrine and let go of the continuing violation doctrine even though both were argued at the District Court level. It turns out that was a very wise move on part of the plaintiff.
  5. A qualified individual with a disability is excluded from participation in, denied the benefits of, and subjected to discrimination under the service, program, or activity of the public entity the day that person is deterred from utilizing them due to its noncompliance. Only when the public entity remedies the noncompliant service, program, or activity or when the plaintiff no longer evidences an attempt to utilize it, does the limitation period end. So, this means the statute of limitation bars recovery only for those injuries incurred outside of the limitation period immediately preceding the day of suit. It also does not bar recovery for injuries incurred within the limitation period or after plaintiff files suit.
  6. Both the language of title II of the ADA, 42 U.S.C. §12132, and §504 of the Rehabilitation Act, 29 U.S.C. §794, are phrased in the present tense. That suggests a qualified individual currently experiencing discrimination under either law suffers an injury. The phrasing also suggests a qualified individual suffers new discrimination and a new injury each day she cannot utilize a noncompliant service, program, or activity even where the barriers giving rise to the claim are ones encountered before.
  7. Assuming sidewalks and curb cuts are a service, program, or activity of a public entity (the court specifically expresses no opinion on that and remands that question back to the lower court for consideration), a qualified individual with a disability is still excluded from utilizing any given sidewalk or curb cut each day it remains noncompliant.
  8. In a footnote, the 10th Circuit points out that numerous regulations implementing the ADA are also phrased in the present tense.
  9. The United States Supreme Court has recognized that failure to accommodate persons with disabilities often has the same practical effect as outright exclusion, and therefore, title II imposes an affirmative obligation on a public entity to accommodate persons with disabilities.
  10. The duty to accommodate contained both in title II of the ADA and in §504 of the Rehabilitation Act clearly and unambiguously convey that noncompliant services, programs, or activities, give rise to repeated violations. Therefore, failing to act in the face of an affirmative duty equals liability. Also, that means if the entity under the affirmative duty to act fails to act while the underlying problem remains not fixed, then every day’s inaction amount to a new violation.
  11. In a footnote, the court noted that the analogy is to temporary nuisance claims. The continuance of a nuisance is a new nuisance every day. So, as long as the temporary nuisance continues unabated, a plaintiff brings suit effectively on day one of the new limitation period. So, here, where an injury repeatedly occurs so long as the service, program, or activity remains noncompliant and the qualified person with a disability is aware and deterred from utilizing it.
  12. Congressional goals of full participation, inclusion, and integration for qualified individuals with disabilities is also consistent with and strongly suggest that the repeated violation doctrine is the proper one to follow. After all, a qualified individual can’t fully participate or be fully included in a service, program, or activity if the person cannot utilize it in a similar way as a person without a disability. Further, that fact doesn’t change simply because he or she would deterred from utilizing the service, program, or activity many times before.
  13. The key question is whether the qualified individual with a disability can fully participate now (emphasis is in the court’s opinion), in the service, program, or activity. The repeated violation doctrine is perfect for this reality, and it also encourages public entities to comply with their affirmative and ongoing obligation to accommodate a qualified individual with a disability by giving that person the ability to seek relief any time he or she cannot fully participate or is not fully included in the service, program, or activity of the public entity.
  14. In the findings section of the ADA (42 U.S.C. §§12101(a)(8), 12101(b)(4)), Congress used terms such as “continuing existence,” and, “faced day to day by people with disabilities.” Similarly, in the Rehabilitation Act findings, 29 U.S.C. §701(a)(5), it uses the phrase, “individuals with disabilities continually encounter various forms of discrimination.” This kind of language demonstrate that Congress understood a public entity can repeatedly cause a qualified individual with a disability to suffer an injury from the same service, program, or activity and nothing in the text of title II or §504 suggests otherwise.
  15. Congress did not design the ADA or to Rehabilitation Act to allow a public entity to forever prevent a qualified individual with a disability from utilizing a service, program, or activity.
  16. Title II and §504 clearly and unambiguously require application of the repeated violation doctrine.
  17. In a footnote, the court noted that applying the repeated violation doctrine to title II and §504 claims serves the interest of efficiency because more than just the rights of the plaintiff before the court are involved. In fact, many other qualified individuals with disabilities also benefit from a ruling favorable to the plaintiff. So, if the repeating violation doctrine were not to apply, then a basically identical lawsuit but timely suit brought by a different plaintiff would land in the court’s lap soon thereafter.
  18. In these kind of cases, injunctive relief is even more important than damages.
  19. The repeated violation doctrine means that a defendant cannot brandish the statute of limitations as a shield to fully protect themselves from suit. However, they can wield the statute of limitations as a sword to chop off damages arising before the limitation period comes in the play.
  20. The repeated violation doctrine does not eviscerate statute of limitations. Instead, it limits the plaintiff’s ability to recover damages to only those injuries incurred during the limitation period immediately preceding suit as well as to any damages for any injuries incurred after filing suit. So, if a plaintiff first discovers a city’s noncompliant sidewalk and curb cuts in 1996 but still bring suit in October of 2016, that plaintiff does not get damages for every injury sustained throughout those 20 years. Instead, the damages would be restrictive than those injury suffered before October of 2014. Similarly, the court noted in a footnote, that if a plaintiff conceded that in 2016 the public entity completely and entirely remedied the problem, then plaintiff’s claims would be entirely barred even with the repeated violation doctrine.
  21. When it comes to damages under title II of the ADA and §504, Supreme Court precedent rules out punitive damages. Also, any damages have to be intentional. The requirement that damages have to be intentional, is an additional limitation on the public entity’s liability under title II and §504.
  22. The court doesn’t have a problem with the repeated violation doctrine meaning that public entities are on the hook for injunctive relief as the years go by. That doesn’t raise any red flags because Congress was quite specific in demanding full participation, inclusion, and integration in society for those with disabilities. Further, this give public entities and incentive to remedy noncompliant services, programs, or activities in a reasonable and efficient manner to ensure full participation. Finally, public entities can moot the whole problem by simply making their program, services, and activities accessible for persons with disabilities.
  23. As we have talked before in our blog, another limitation that a plaintiff has to deal with with respect to injunctive relief, is that they no longer suffer an injury once they stop asserting an intent to return to where the violations are occurring. So, if a plaintiff were to move away and had no intent to return, any such injury disappears. Finally, the doctrine of laches can also come into play when it comes to injunctive relief.

III

Takeaways

  1. This is the first Circuit that I know of adopting the repeated violation doctrine. The repeated violation doctrine has important differences from the continuing violation doctrine, which is almost impossible to get a federal court to apply.
  2. I expect this decision to have a big impact on title II entities and on entities taking federal funds, particularly colleges and universities. It isn’t unusual at all for a plaintiff dealing with either to run into a brick wall.
  3. The grammatical tense used by the disability antidiscrimination laws and their final implementing regulations do, in my opinion, give support to the repeated violation doctrine. I also find the congressional findings discussion and the temporary nuisance analogy persuasive. The repeated violation doctrine also takes into account the day-to-day realities faced by people with disabilities.
  4. Repeated violation doctrine is not an open-ended situation for statute of limitations. Think of it as a look back. So, if a person deals with a two-year statute of limitations, then the claims that are in play are those arising during the years prior to the filing of the suit.
  5. The case given strong credence to the argument that a failure to accommodate is an adverse action.
  6. This also means that failing to fix the problem creates a new beginning of a statute of limitation timeframe for every day that the problem is not fixed.
  7. Especially at the college and university level, when a student runs into t hat brick wall with the school not carrying out the disability services accommodations, they often have to leave. Having gone through such a crazy experience, the student may not want to return at all. One of the jobs, and not an easy one, of the plaintiff advocate is convincing the student that they should return if given the opportunity because injunctive relief is definitely a plaintiff lawyer wants to have in his or her quiver at the case proceeds.
  8. Under title III of the ADA, damages are not a possibility. All you get is attorney fees and injunctive relief. Under title II of the ADA, damages are possibility if you can show intentional discrimination. Same goes for §504 of the Rehabilitation Act. What this court doesn’t address, it is just what is intentional discrimination. That may vary from jurisdiction to jurisdiction. One of the leading cases discussing this question is from the 11th Circuit, and we discussed that case here. So, in addition to the lower court having to decide whether sidewalks, curbs, and ramps are a program (we did talk about sidewalks previously here as well as here), the lower court is also going to have to figure out just what is intentional discrimination.
  9. For those who do not know, laches is a doctrine that can come into play when seeking equitable remedies, which includes an injunction. That doctrine means that the plaintiff has to come to the matter with clean hands.
  10. The repeated violation doctrine also incentivizes prompt handling of reasonable accommodation requests.

Today’s blog entry discusses the case that came down from the United States Supreme Court on May 13, 2019, discussing interstate sovereign immunity. The case is Franchise Tax Board of California v. Hyatt. We have blogged on sovereign immunity before, such as here. It is an incredibly complicated area of the law, but this case isn’t that difficult compared to what we have blogged on before. As usual, the blog entry is divided into categories and they are: facts; majority opinion; dissenting opinion; and takeaways. The reader is free to focus on any or all of the categories.

I

Facts

The facts are rather convoluted. Suffice to say, this was the third time this case came before the Supreme Court, but the first time the issue of interstate sovereign immunity was specifically considered. It involved an individual, Hyatt, who made a boatload of money on a microchip while residing in California. He later moved to Nevada. California thought the move was a sham and went after him for big time tax liability. The person being pursued by California for tax liability turned the tables on them by suing them in Nevada for torts he alleged the agency committed during the audit. California authorities argued throughout that they were immune from suit according to California law. After the case went up to the Supreme Court for the first time, Hyatt prevailed at trial. Eventually, the Nevada Supreme Court upheld a $1 million judgment on one of the claims and remanded for new damages trial on another. Then, it went up to the Supreme Court a second time where the Supreme Court said that the full faith and credit clause required Nevada to grant the California Board the same immunity that Nevada agencies enjoy. When the Nevada Supreme Court instructed the trial court to enter damages in accordance with the statutory Nevada provisions, it went back up to the Supreme Court for a third time for specifically considering interstate sovereign immunity. In a prior case, dating back 40 years, the Supreme Court had said that a State could or could not grant sovereign immunity to another State. That is, the grant of sovereign immunity was not mandatory regardless of what the other State’s law might say. In other words, sovereign immunity is available only if the forum State voluntarily decides to respect the dignity of the other State as a matter of comity, or respect.

II

Majority Reasoning That Sovereign Immunity Is Mandatory Where the Other State’s Law Says So

  1. At the time of the founding of the United States, States were immune under both the common law and the law of nations. The Constitution’s use of the term “States,” reflects both kinds of traditional immunity. States retain those aspects of sovereignty except as altered by the plan of the constitutional convention or certain constitutional amendments.
  2. When the States ratified the Constitution, they surrendered a portion of their immunity by consenting to suit brought against them by the United States in federal courts. While such jurisdiction of the federal courts is not conferred by the Constitution in express words, it is inherent in the constitutional plan.
  3. The whole idea behind the 11th amendment in light of its history and structure is to preserve the States traditional immunity from private suits.
  4. The Constitution affirmatively alters the relationship between the States so that they no longer relate to each other solely as foreign sovereigns. Each State’s equal dignity and sovereignty under the Constitution implies certain constitutional limitations on the sovereignty of its sister States, such as the inability of one State to bring another into its courts without the latter’s consent.
  5. The Constitution implicitly strips States of any power they once had to refuse each other sovereign immunity, just as it denies them the power to resolve order disputes by political means.
  6. There are many constitutional doctrines not spelled out in the Constitution but are nevertheless implicit in the structure and supported by historical practice, such as: judicial review; intergovernmental tax immunity; executive immunity; and the president’s removal power. Like those doctrines, the States sovereign immunity is a historically rooted principal embedded in the text and structure of the Constitution.
  7. The decision to overrule precedent means looking at: the prior decision’s quality of reasoning; the prior decision’s consistency with related decisions; legal developments since the decision; and reliance on the decision. All of those criteria are met according to the majority because the prior decision failed to account for the historical understanding of state sovereign immunity. It also failed to consider how the Constitution reordered the States relationship with one another. Further, that decision, to the majority’s eyes, was an outlier in sovereign immunity jurisprudence when compared to more recent decisions. Finally, the reliance factor is minimal as it only involves Hyatt incurring the loss of litigation expenses and a favorable decision.

III

Dissenting Opinion Reasoning

  1. At the time of the founding of the United States, nations granted other nations sovereign immunity in their courts not as a matter of legal obligation but as a matter of choice. In legal jargon, comity or grace or consent.
  2. No provision of the Constitution gives States absolute immunity in each other’s courts.
  3. Concept like “constitutional design,” and “plan of the convention;” are highly abstract and difficult to apply. Such concepts invite differing interpretations as much as the Constitution’s broad liberty protecting phrases such as “due process,” and “liberty.” They also suffer from the additional disadvantage of not actually appearing anywhere in the United States Constitution.
  4. Where the Constitution alters the authority of States with respect to other States, it tends to do so explicitly, such as what is found in the import export clause and in the full faith and credit clause.
  5. Why would the framers silently and without any evident reason transform sovereign immunity from one based upon consent into an absolute immunity that States must accord one another?
  6. Overruling a case always require special justification, which is not present in this case. That is, while reasonable judges can disagree about whether the prior decision was correct, the very fact that disagreement is possible shows that overruling the decision is obviously wrong.
  7. States normally grant sovereign immunity voluntarily. If they fear that this practice is insufficiently protective, they can enter into an interstate compact guaranteeing that the normal practice of granting immunity continues.
  8. It is dangerous to overrule decision only because five members of the later court come to agree with earlier dissenters on a difficult legal question.

IV

Takeaways

  1. So, what does this mean in terms of how sovereign immunity works. The way it works now after this decision with respect to an individual suing their own State has not changed. That is, the court is going to first look at whether the State has explicitly consented to being sued. If it is a situation where a federal law, such as the ADA, forces a State to waive their sovereign immunity, then the court will attack it this way. First, they will look to whether the State has consented to being sued. Second, if the answer is no, the court turns to federal law to determine if the federal law explicitly waives the State’s sovereign immunity. Finally, if the federal law does do that, which the ADA for example does, then the very complicated question becomes whether the waiver of sovereign immunity is consistent with the enforcement clause of the 14th amendment to the United States Constitution.
  2. With respect to a person residing in one State but then suing a different State with respect to federal law, the analysis would be the same as in ¶ IV1. With respect to a State law, the analysis turns entirely upon whether the State has waived consent to being sued. If the answer is that they have not, then the forum State now has no choice but to grant the sovereign immunity. The harder question is what if it is not clear whether consent has been waived or not. In that case, does the forum State refer the matter to the other State’s courts for a decision much in the way federal courts may ask for an opinion from a State court on a matter of State law?
  3. Justice Breyer’s statement about the danger of overruling the decision when five members of the later court come to agree with earlier dissenters comes immediately after citing to a decision dealing with abortion. That placement is undoubtedly intentional.
  4. ¶ II6 of this blog entry is emphasized intentionally. This kind of statement is not something you expect from a conservative jurist, as they typically look into the text of the document to figure out what the document means at the time it was written. If they don’t try and figure out what document means at the time it was written, they would probably try to figure it out in terms of the plain meaning of the document. Looking to what is embedded in the text and structure of the Constitution potentially blows things wide open. One can argue that that approach isn’t really any different than finding a penumbra of privacy in Griswold v. Connecticut. In fact, Justice Douglas took that very approach in reaching the conclusion that the Constitution had a penumbra of privacy emanating from several different constitutional provisions. See Griswold v. Connecticut 381 U.S. 479, 482-485 (1965). Similarly, Justice Goldberg joined by Chief Justice Warren and Justice Brennan referred to the language and history of the ninth amendment to find a right of marital privacy. Id. at 487. So, look for a huge fight at the Supreme Court when the abortion decisions come up before it with respect to whether prior decisions should be overruled or not. ¶ II6 gives the four liberal justices all kinds of ammunition to argue that considering Griswold and the many years since then, that some level of pro-choice (up to a point of viability?), is now embedded in the Constitution.
  5. You may be asking what does any of this have to do with the rights of persons with disabilities? A fair question. I’m not exactly sure. However, I think the whole area of sovereign immunity is so fascinating that I just couldn’t resist blogging on this case.
Smoking Gun

Today’s blog entry discusses two cases, both dealing with smoking guns (hence, the cannon above).

One is from the Sixth Circuit, Baum v. Metro Restoration Services, Inc., Decided on April 11, 2019. The other is EEOC v. Crain Automotive Holdings LLC from the Eastern District of Arkansas, also decided on April 11, 2019. As usual, the blog entry is divided into categories, and they are: Crain’s facts; Crain’s reasoning; Crain’s takeaways; Baum’s facts; Baum’s reasoning; and Baum takeaways. Of course, the reader is free to focus on any or all of the categories.

I

Crain Facts Taken Directly From The Opinion

Judith Vaughn began working for Crain Automotive Holdings, LLC in the fall of 2016. Vaughn suffers from anxiety, depression, and panic attacks. Late in the day on Monday, January 30, 2017, Vaughn began experiencing chest pains and went to the emergency room, fearing she was having a heart attack. After two days of treatment Vaughn learned her chest pain had been the result of a panic attack. She ultimately reported back to work on Friday, but she began experiencing a panic attack and left work, after emailing her supervisor. When Vaughn returned to work the following Tuesday, she met with two supervisors, Kim Lynch and Debbie Pumphrey, and was terminated. According to Vaughn, she was told at this meeting that “it was not working out” due to her health problems and that she needed to take care of herself.

II

Crain’s Reasoning

  1. McDonnell-Douglas only applies where a plaintiff does not have direct evidence of discrimination.
  2. Direct evidence is evidence showing a specific link between the discriminatory intent and the adverse employment action sufficient for a reasonable jury to find an illegitimate criterion actually motivated the adverse employment action.
  3. Where direct evidence of discrimination exists, a plaintiff gets to the jury based on that evidence alone.
  4. No dispute that Vaughn has anxiety, depression, and panic attacks. With respect to her panic attacks, those attacks make her feel paralyzed, cause chest pain, and cause difficulty with breathing, thinking, communicating with others, and reasoning. Her anxiety causes her to have difficulty breathing and communicating and an inability to think coherently. Finally, when her depression is active, she is unable to care for herself, communicate with others, or think coherently.
  5. It doesn’t matter that Vaughn can perform some demanding activities and that she does not have panic attacks constantly because an impairment substantially limiting one major life activity does not need to substantially limit other major life activities in order to be considered a substantially limiting impairment. Also, episodic impairments are a disability when they substantially limit a major life activity when active. Finally, Toyota Motor’s definition of substantial limitation was overruled by the amendments to the ADA [my words, but what the court essentially said].
  6. The evidence presented by the EEOC makes clear that Vaughn’s employer was on notice that she had anxiety, depression, and had suffered a panic attack. She also had put the employer on notice that she had had a heart catheterization. Accordingly, a reasonable jury could find that when Vaughn was fired the following Tuesday, the employer certainly knew about her anxiety, depression, and panic attacks. Further, the jury could find that the employer had some knowledge of the extent of Vaughn’s impairments as they had caused her chest pain resulting in a heart catheterization as well as missing several days of work.
  7. Actions or remarks by employers reflecting a discriminatory attitude or comments that demonstrate a discriminatory intent (the legal jargon is animus), in the decisional process, or comments made by individuals closely involved in employment decisions may all constitute direct evidence of discrimination.
  8. At the meeting between Vaughn and her two supervisors to talk about why she had left work early, Vaughn was specifically told that “due to her health, it wasn’t going to work out and she should take time for herself.” If believed by the jury, and it is the jury’s call, the comment is direct evidence of discrimination that would enable a jury to find the employer motivated by Vaughn’s disability when it fired her.
  9. The supervisor’s comment is a far cry from stray remarks in the workplace for several reasons: 1) it was made during the meeting in which Vaughn was fired; 2) it was made by Vaughn’s supervisor; 3) it relates directly to the decision to fire the plaintiff; and 4) no reason exists to suspect that the suggestion that the Vaughn should take care of her health or take time for herself was made with the intent of attempting to preserve and promote her as she was fired in the same conversation.
  10. Magic words are simply not required when it comes to requesting a reasonable accommodation. Instead, all a plaintiff has to do is make clear to the employer that he or she wants assistance for his or her disability. That is, an employee only needs to provide the employer with enough information that, under the circumstances, the employer can be fairly said to know about the disability and the desire for an accommodation. A question of material fact exists here because plaintiff produced an email in which she stated that a letter from her doctor was attached.

III

Crain Takeaways

  1. This whole direct evidence/indirect evidence gets really confusing. Previously, I talked about that confusion and how Seventh Circuit may or may not have have done away with the whole thing.
  2. Whether you are going with direct evidence or indirect evidence, it is clear that mixed motive is involved as both tests use motivating factor.
  3. The amendments to the ADA change what substantial limitation means and it also changed dealing with episodic impairments.
  4. Labor and employment lawyers are quite fond of saying that magic words are not required. The problem is what does that exactly mean? This case does a real nice job of presenting a standard for when a reasonable accommodation request has been made where magic words are not used. In particular, all the employee has to do is make clear to the employer that he or she wants assistance for his or her disability. That, is also vague, but the court goes further when it says, citing to an Eighth Circuit case, “an employee need only provide the employer with enough information that, under the circumstances, the employer can be fairly said to know about the disability and desire for an accommodation.”

IV

Baum Facts Taken from the Opinion

A few months after Plaintiff Jonathan Baum began having heart problems, his employer, Defendant Metro Restoration Services, fired him. Not only that, Metro’s owner told him he was losing his job because of his health issues. So, Baum sued for disability discrimination, and the district court granted summary judgment in Metro’s favor after concluding that Baum couldn’t establish he was disabled.

Metro repairs property damage after catastrophic events such as storms and fires. In 2013, the company hired Baum as a scheduler. As the job title suggests, Baum determined which of Metro’s work crews would go to which job sites and when they would go. In late 2014, Baum began having heart problems. Over the course of several months, he went to the emergency room fearing he had had a heart attack; had a CAT scan; had a heart catheter implanted; had an echocardiogram (which outlines the heart’s movement using high-frequency sound waves); and wore a heart monitor for more than a month. During this time, he occasionally missed work for medical tests and treatments. He also worked remotely sometimes. He kept his boss and owner of Metro, Patrick Cahill, informed of his medical issues. One weekend in the spring of 2015, severe weather hit. Baum worked remotely to coordinate Metro’s crews. The next week, Cahill went to Baum’s home and fired him. During their conversation, Cahill said he was firing Baum “due to [Baum’s] health issues and doctors’ appointments.” Baum then sued Metro in state court for disability discrimination under both the Americans with Disabilities Act and Kentucky law. Metro removed the case to federal court.

V

Baum Court’s Reasoning

  1. Cahill’s statement that he was firing the plaintiff because of his health issues is direct evidence of discrimination.
  2. Since direct evidence of discrimination exists, plaintiff has to show that: 1) he has a disability; and 2) he is otherwise qualified for the job despite the disability either without accommodation, with an alleged essential job requirement eliminated, or with a proposed reasonable accommodation. (For the labor and employment lawyer really familiar with the ADA, I know what you are thinking. This is not a misprint).
  3. Metro never contested plaintiff’s qualifications for the job without accommodations, and therefore, forfeited the argument by failing to raise the argument earlier than at oral argument.
  4. Expert testimony is needed to show whether the plaintiff is substantially limited in the major life activities of cardiovascular and circulatory functions because cardiovascular and circulatory functions require medical knowledge to understand.
  5. Absent medical expert testimony, the plaintiff can’t create a factual issue of whether he has a disability. Accordingly, summary judgment was correctly granted on that score.
  6. With respect to the perceived disability claim, a plaintiff does not need to prove a limitation on a major life activity.
  7. Cahill’s words v. the plaintiff’s word creates a classic credibility dispute that is a task for the jury.
  8. While it is true that Cahill’s knowledge of plaintiff’s medical issues is not sufficient to carry the day, plaintiff has more than that here. In particular, he has Cahill’s stated reason for firing him: his health issues and doctors appointments. That statement creates a factual dispute and makes it material. Accordingly, giving the plaintiff the benefit of the doubt, which a court has to do at the summary judgment stage, a jury could find that Cahill meant exactly what he said. If the jury found such, then it could also find that Cahill perceived the plaintiff to have a physical impairment and fired him because of that perception.

VI

Baum Takeaways

  1. I am completely mystified by the court saying that one of the ways to show a plaintiff is otherwise qualified is to show that he can do the job with an essential job requirement eliminated. That simply isn’t the way the ADA works. The ADA does not require an employer to eliminate essential job functions. An employer may be required to engage in job restructuring, which we discussed here. They also may want to move marginal functions to others. That said, job restructuring and putting marginal functions on others are not the same as eliminating essential job requirements.
  2. If you have an argument, raise it early. We just discussed that problem here.
  3. A person may lose an actual disability case, but may be able to go forward on a regarded as claim.
  4. Sometimes you need expert medical testimony to establish whether a substantial limitation on a major life activity exists even though what is a substantial limitation on a major life activity is a much easier standard to meet since the amendments to the ADA.
  5. Direct evidence must be material to the adverse action.

A comment that applies equally to Baum and to Crain is that smoking guns are rare, but they do happen.

Previously, I have talked about how the EEOC if it wasn’t the EEOC would have committed legal malpractice in the case we talked about here. From going through my search engine, it doesn’t seem like I have talked about where the legal malpractice risks are with respect to the ADA. In going through my publishing and presenting files, I did find a presentation that I made back in 2012 on the ADA and legal malpractice risks. Our case of the day coming from the Third Circuit, Robinson v. First State Community Action Agency, a published decision from April 1, 2019, is a case where the defense undoubtedly needs to be contacting its legal malpractice insurance carrier. All of this caused me to dig up my 2012 presentation and talk about legal malpractice risks when dealing with the ADA. As usual, the blog entry is divided into categories and they are: elements of a legal malpractice claim; specific ADA legal malpractice risks; case of the day facts; court’s reasoning upholding the jury verdict; and takeaways. As usual, the reader is free to focus on any or all of the categories.

I

Elements of the Legal Malpractice Claim

  1. The elements of a legal malpractice claim vary depending upon whether litigation or transactional matters are involved. The elements may vary from State to State since legal malpractice is a state matter. Nevertheless, the elements are probably similar no matter where you are. With respect to litigation or a transactional matter, typical elements are: 1) the attorney owes the plaintiff the duty of due care arising from the attorney-client relationship; 2) attorney breached that duty; and 3) as a proximate result, the client suffered an injury. With respect to the injury, the injury is to an intangible property interest caused by the lawyer’s negligent act or omission (actual damages).
  2. With respect to proximate cause in a litigation matter, that breaks down into cause in fact and into legal cause. Cause in fact turns on showing that but for the negligence of the attorney, the client would have prevailed. Legal cause is foreseeability.
  3. With respect to cause in fact in a transactional matter, the question is whether had the undisclosed risk been known, he or she would not have accepted the risk and consented to the recommended course of action.
  4. With respect to damages in a transactional matter, damages are any damages that proximately follow from the client’s acceptance of the advice that fell below the standard of reasonable legal services.

Union Planters Bank, N.A. v. Thompson Coburn LLP, 402 Ill. App. 3d 317, 342 (fifth district 2010).

II

Specific Legal Malpractice Risks

  1. In Cleveland v. Policy Management Systems Corporation, 526 U.S. 795 (1999), United States Supreme Court said that an SSDI filing may under certain circumstances prevent a person from being able to argue later that the employer did not reasonably accommodate them with respect to the disability because the way the SSDI claim was filed meant that the person with the disability was not qualified to do the job. So, an SSDI lawyer needs to make sure that when filling out the SSDI application that somehow it is made sure that the claim that the person cannot do any job in the economic marketplace is not factoring in reasonable accommodations. Also, the SSDI attorney as a matter of course needs to advise there is a risk that by filing the SSDI claim, a future ADA claim may be put at risk.
  2. Alleging working as the major life activity. In Sutton v. United Airlines, 527 U.S. 471 (1999), the Supreme Court held that to be substantially limited in the major life activity of working, the person must be unable to perform a broad class of jobs. While the ADA amendments did overrule Sutton with respect to mandating mitigating measures be factored into whether a person has a disability, the working as a major life activity part of Sutton is untouched. It is next to impossible for a plaintiff to prevail whenever working as the major life activity is alleged. Further, since the amendments to the ADA broadened the reach of who may have a disability, using working as the major life activity is virtually always unnecessary.
  3. 100% return to work or insisting on full duty. In this blog entry, we discussed how 100% return to work policies are dead under the ADA. I have taken that position since the first edition of my book came out in 2000, but as we have seen in our blog, cases now support that position. If your company’s lawyers are signing off on full duty irrespective of reasonable accommodations or are signing off on 100% return to work policies, they have a problem.
  4. If you are licensing counsel and you have a client that is the subject of licensure proceedings because they are either being regarded as having a disability or they have a record of a disability and you don’t know the ADA, the chances are high that your client will be subject to a variety of adverse actions that may not be consistent with the ADA. You don’t want to let that happen. In my opinion, definitely a malpractice risk if it does happen.
  5. Regarded as. Before the amendment to the ADA, it wasn’t clear whether a plaintiff could argue that they needed reasonable accommodation in a regarded as case. The amendments to the ADA explicitly say that a person who is regarded as having a disability is not entitled to reasonable accommodations. If someone doesn’t realize how the law has changed here, a whole heap of trouble can ensue as we find out in the next sections of this blog.

III

Case of the Day: Robinson v. First State Community Action Agency

Facts

Robinson was told by her manager that her work performance was so poor that she either didn’t know what she was doing or she had a disability where she was dyslexic. The plaintiff taking her words seriously decided to undergo testing for dyslexia. The plaintiff sent her manager an evaluation that concluded that she had symptoms consistent with dyslexia and requested certain accommodation from the manager of human resources. The plaintiff was told that any diagnosis she received would not prevent her from performing her work in a satisfactory manner and she was advised to focus on improving her performance. Weeks later she was fired.

During litigation, plaintiff acknowledged that she could not prove she was dyslexic. She proceeded on the theory that she was perceived or regarded as dyslexic by her employer, and therefore, she was entitled to reasonable accommodation the same way someone who was dyslexic would’ve been. Both parties proceeded under this regarded as case theory through litigation, trial, and post trial briefing. Only on appeal, did the defense seek to overturn the jury’s verdict that the regarded as jury instruction was erroneous and therefore, the jury’s verdict could not stand.

IV

Court’s Reasoning Upholding the Jury Verdict

  1. The amendments to the ADA, per 42 U.S.C. §12201(h), make it clear that a person who is regarded as having a disability but who failed to demonstrate that he or she is actually a person with the disability is not entitled to a reasonable accommodation. We actually discussed the case the Third Circuit relied upon for this proposition here.
  2. The defense never addressed the effect of the 2008 amendments until its briefing on appeal.
  3. At no time did the defense object to plaintiff’s regarded as theory despite numerous opportunities to do so.
  4. The defense waived its regarded as argument in several different ways: 1) the defense was routinely confronted with plaintiff’s erroneous regarded as case theory and never objected; 2) the defense never corrected plaintiff’s error of law when plaintiff raised them in the summary judgment proceedings. Instead, the defense responded that plaintiff did not have a substantially limiting impairment; 3) the defense filed no objections to the Magistrate’s report and recommendation when the magistrate held that there was a question of material fact regarding whether the defense considered the plaintiff disabled. Further, the defendants failed to argue that a plaintiff could no longer proceed under the regarded as a disability theory for reasonable accommodation claims in light of the amendments to the ADA; 4) the viability of the regarded as case theory of the plaintiff’s was squarely before the defense again at trial. At trial, the defense voiced support for plaintiff’s proposed jury instruction even though it was informed by the plaintiff that the plaintiff was not arguing that the plaintiff actually had a disability; 5) the defendant specifically agreed that the reasonable accommodation language should be included in the jury instruction anyway; 6) at the charge conference, defense counsel voiced support for the plaintiff’s jury instruction; 7) once the jury verdict came in against the defense, the defense moved for a new trial but did not raise the error in the regarded as case theory at post trial briefing nor did it move for judgment as a matter of law on those grounds.
  5. An alleged error is waived when the defense fails to raise the objection at trial and fails to include it in post trial briefing.
  6. When a party jointly recommends a jury instruction, it cannot later complain about that very instruction. In this case, the defense did not merely failed to object to an instructional error at a charging conference, it also played along with a flawed theory of liability throughout the litigation and ultimately endorsed the specific instruction embodying that theory.
  7. The defense was initially made aware in mid-2016 of the erroneous case theory and did nothing. It also did nothing again at the beginning of trial. Finally, it invited the trial court to use a case no longer accurate that came down prior to the amendments act.
  8. While it is true that the model jury instructions are erroneous, judges and parties are not free to incorporate incorrect legal principles simply because an error exist in a model jury instruction. After all, model instructions are designed to help litigants in trial courts and not to replace their shared obligation to get the law correct when drafting proposed jury instructions. Accordingly, erroneous model jury instructions are no defense.
  9. Verdict of $22,501 affirmed.

IV

Takeaways

  1. I look for a legal malpractice claim to follow here. The damages awarded to the plaintiff was $22,501. Since the plaintiff prevailed, the defense is on the hook for attorney fees. Also, the defense probably spent $100,000-$300,000 defending the claim through trial. It will be interesting to see how the attorney fees award goes since the plaintiff had no business winning their case under the theory they proceeded under. Nevertheless, the plaintiff did take it to trial and prevailed.
  2. The amendments to the ADA made it crystal clear that a person who is regarded as having a disability is not entitled to reasonable accommodations. Accordingly, but for the negligence, the defense would have won. Accordingly, the legal malpractice cause in fact standard for litigation is met here.
  3. Don’t assume model jury instructions are accurate. They do not substitute for knowing the law in the area.
  4. Lawyers owe a duty of competence to their clients. That means if they don’t know the area as well as they need to, get someone involved as early as possible who does. Having been in this business, ADA compliance, since 1990, I have found that lawyers generally don’t do this. Perhaps, that is a reflection of the competitive pressures of law as well as lawyers thinking that all they have to do is look up statutes, regulations, and read case law. This behavior of lawyers doesn’t make a lot of sense. After all, I wouldn’t ask an eye surgeon to operate on a hernia.

This just in. Law 360 is reporting today, May 1, 2019, that the Third Circuit has denied a petition for rehearing in this case.

Hope everyone had a happy Easter and, as in my case, a happy start to the Passover holiday. Today’s blog entry come from one of the blogs that is in my blog roll, Wait a Second. The case is Natofsky v. The City of New York decided on April 18, 2019 out of the Second Circuit. It is a case involving a hard of hearing individual that was terminated from a highly paid position with the City of New York. He claimed that his hearing loss was a motivating factor in the termination. The City defended on the ground that motivating factor was not the proper rule. Here is the other thing. It wasn’t an ADA case at all. Rather, it was a case involving the Rehabilitation Act, New York law and New York City law. Finally, the District Court adopted as the causation standard a sole cause standard. As usual, the blog entry is divided into categories and they are: majority reasoning; dissent’s reasoning; and takeaways; and just in. The reader is free to focus on any or all of the categories.

I

Majority Reasoning

  1. The Rehabilitation Act provides at 29 U.S.C. §794(a) that no individual can be subject to discrimination in any program or activity receiving Federal financial assistance solely by reason of his or her disability.
  2. On the other hand, the ADA at 42 U.S.C. §12112(a) makes it unlawful for an employer to discriminate against an individual on the basis of disability.
  3. In 1992, Congress amended the Rehabilitation Act to add a provision stating that the standards used to determine whether the Rehabilitation Act has been violated in a complaint alleging employment discrimination are the standards applied under Title I of the ADA. 29 U.S.C. §794(d).
  4. Whether §794(d) requires the ADA causation standard is a matter of first impression in the Second Circuit, and the court holds that an employment discrimination claim under the Rehabilitation Act is the same causation standard as an employment discrimination claim under the ADA.
  5. An established canon of construction says that a specific provision controls over one or more general application. §794(d) is more specific than §794(a), and therefore, trumps the causation standard expressed in §794(a) in the employment discrimination context. In other words, §794(a) establishes a general causation standard applicable to most discrimination claim brought under the Rehabilitation Act, but §794(d) [the opinion actually has a typo here calling it §749, but I am sure that will be corrected later], removes employment discrimination claim from the application of §794(a)’s general causation standard by mandating the ADA’s causation standard.
  6. In a footnote, the court noted that the point of view that §794(d) trumps §794(a) in Rehabilitation Act employment cases is not a universal point of view. In particular, the Fifth Circuit reached the opposite conclusion. Even so, the Second Circuit says it has good reason to disagree with the Fifth Circuit because §794(d) came later in time and speaks specifically to causation in employment discrimination cases brought under the Rehabilitation Act. Further, establishing §794(d) as a carve out for employment discrimination claims does not require Congress amending the language of §794(a)’s general causation standard because that standard continues to govern all discrimination claims arising under the Rehabilitation Act except for employment discrimination claims.
  7. While the Second Circuit previously has gone on record saying the Rehabilitation Act does not permit mixed motive suits, that is not the same as stating that the causation standard for Rehabilitation Act employment claims is a “solely by reason of” standard.
  8. Title I of the ADA at 42 U.S.C. §12112(a) prohibits employers from discriminating against a qualified individual on the basis of disability in regard to the hiring, advancement, or discharge of employees.
  9. Historically, the Second Circuit has applied a mixed motive test to ADA claims whereby the disability need only be a motivating factor in the employer’s adverse employment action but need not be the sole but for cause. At the time of those cases, the ADA prohibited discriminatory acts that were engaged in “because of,” a disability, instead of “on the basis of,” which is the case now.
  10. The mixed motive test originates from Title VII at 42 U.S.C. §2000(e)-2(a)(1), which prohibits employment discrimination “because of,” an individual’s race, color, religion, sex, or national origin. Under Title VII, plaintiffs can prevail if they show that the discrimination was a motivating factor in the defendant’s adverse employment action. That said, a defendant can avoid all liability if it can prove that it would have taken the same action regardless of any impermissible consideration.
  11. Citing to Gross, which we discussed here, and to Nassar, which we discussed here, the Second Circuit said that the ADA does not include a set of provisions like Title VII’s §2000e-2(m) that permits a plaintiff to prove employment discrimination by showing the discrimination was a risk motivating factor in the adverse decision. Further, no express instruction from Congress in the ADA itself exists that the motivating factor test applies.
  12. When Congress added §2000e-2(m) to Title VII, it contemporaneously amended the ADA but did not amend the ADA to include a motivating factor test.
  13. The Fourth, Sixth, and Seventh Circuits currently require a plaintiff alleging a claim of employment discrimination under the ADA to prove that discrimination was the but for cause of any adverse employment action.
  14. Absent from the ADA is anything like §2000e-2(m), which establishes a mixed motive test.
  15. While the ADA does incorporate §2000e-5(g)(2)(B) that cross references §2000e-2(m), that is of no help because that section deals exclusively with the remedies available to plaintiff’s that have first proven of violation under §2000e-2(m), which makes no mention of disability.
  16. By incorporating §2000e-5, into the ADA, it can be assumed that Congress was aware that some of those provisions would apply only to Title VII cases and not to the ADA.
  17. Citing to Gross, the court finds no reason to hold that any meaningful difference exists between “on the basis of,” “because of,” or “based on,” that would require any other causation standard than but for.
  18. Nothing in the legislative history of the ADA indicates that “on the basis of,” was supposed to lower the causation standard for employment discrimination claims below the traditional but for standard. The legislative history that does exist suggest that the language was changed to decrease the emphasis on whether a person has a disability and not to lower the causation standard.
  19. The evidence is simply not there for the plaintiff to prevail on a but for causation standard.
  20. Plaintiff also alleged a cat’s paw theory of liability, which allows for a discriminatory motive to be imputed to a final decision-maker if the decision-maker’s adverse employment action was proximately caused by a subordinate having a discriminatory motive and intended to bring about the adverse employment action. While cat’s paw liability applicability to cases outside of the mixed motive context is an important one, the court decides to decline the opportunity to take on that question because defendants waived any objection to proceeding under that theory.
  21. Even assuming cat’s paw liability applies, the evidence is simply not there to justify application of the doctrine against plaintiff’s supervisors.
  22. The facts aren’t there to allow plaintiff’s failure to accommodate claims to go forward.
  23. The facts are also not there to allow plaintiff’s retaliation claims to go forward.

II

Dissent’s Reasoning (Judge Chin)

  1. While a but for causation standard applies to the retaliation claim, discrimination and failure to accommodate claims brought under Rehabilitation Act are governed by the same standards that courts have uniformly applied for more than two decades, i.e. mixed motive.
  2. The issue is whether the ADA continued to use a motivating factor standard in light of the 2000 amendment to the ADA and the Supreme Court’s decision in Gross. Judge Chin believes the answer to that question is yes.
  3. Gross does not apply to ADA claims. That case was an Age Discrimination in Employment Act and not an ADA case.
  4. In Gross, the court specifically mentioned that Title VII and the Age Discrimination in Employment Act are set up in fundamentally different ways with respect to the relevant burden of persuasion. That isn’t the case with the ADA as the ADA incorporates the powers, remedies, and procedures of Title VII. Therefore, different rules apply to the ADA and to the Rehabilitation Act than they do to the Age Discrimination in Employment Act.
  5. In Gross, the Supreme Court held that Age Discrimination in Employment Act claims are governed by the but for standard because the court had never held that Title VII’s motivating factor standard is applicable to Age Discrimination in Employment Act claims, and because Congress neglected to add a motivating factor provision to the Age Discrimination in Employment Act when it amended Title VII to add §§2000e-2(m) and 42 U.S.C. §2000e-5(g)(2)(B) while contemporaneously amending the Age Discrimination in Employment Act in several other ways.
  6. ¶II5 simply cannot apply to the ADA. Motivating factor standard has governed the ADA cases for more than two decades. Further, when Congress amended Title VII in 1991 to include the motivating factor language, it incorporated the motivating factor language into the ADA because the ADA at 42 U.S.C. §12117(a) explicitly refers to and adopts the enforcement provisions of Title VII, including §2000e-5. Therefore, citing to a dissenting opinion in Lewis v. Humboldt Acquisition Corporation, which we discussed here, you simply cannot draw the same inference from Congress’s actions as the Supreme Court did in Gross for Age Discrimination in Employment Act claims when it comes to the ADA.
  7. The 2008 amendment to the ADA show that Congress wanted to retain not eliminate the motivating factor standard. In particular, the primary purpose of the 2008 amendments was to reinstate a broad scope of protection to be available under the ADA because several Supreme Court cases had narrowed that scope of protection. Thus, Judge Chin fails to understand how the majority can posit that the 2008 amendments warrant deviating from the motivating factor standard that had been applied for years before the amendments.
  8. Congress could have changed the ADA’s causation standard with the 2008 amendment but did not do so. Where Congress fails to disturb a consistent judicial interpretation of the statute, that provides indication Congress at least acquiesces in if not affirms that interpretation.
  9. Since Congress amended the ADA to reject an interpretation of the ADA that was not aligned with congressional intent, that demonstrates it is likely it would also have done so for the ADA’s causation standard if courts were applying the wrong standard. The fact that Congress amended the ADA to reject an interpretation of the ADA not aligned with congressional intent demonstrates it is likely it would have done so for the ADA’s causation standard if the courts in applying the motivating factor standard were applying the wrong standard. That they did not do that indicates at least implicit acceptance of the motivating factor standard.
  10. While the ADA does not explicitly incorporate §2000e-2, it does incorporate §2000e-5. Further, §2000e-5(g)(2)(B) specifically refers to the motivating factor standard. Interpreting the ADA to require a but for standard of causation, renders that provision irrelevant and superfluous. A statute need to be construed so that it’s effect given to all of its provisions so that no part of it is inoperative, superfluous, void, or insignificant.
  11. Nothing indicates that Congress chose not to incorporate §2000e-2 into the ADA with the intent for a stricter causation standard to apply. Indeed, if that had been congressional intent, it would have omitted §2000e-5(g)(2)(B). It also would surely have explained why it was making such a significant change and Congress did not do so.
  12. The ADA’s legislative history makes clear that Congress intended claims under the ADA to continue to have the same causation standard claims under Title VII. More particularly, when Congress enacted the ADA, it intended for the ADA’s remedies to parallel Title VII’s remedies because the remedies should remain the same for minorities, women, and for persons with disabilities.
  13. A House report explained that if the powers, remedies, and procedures, for title VII change, then identical changes under the ADA for persons with disabilities will also be made. That is, by retaining the cross reference to Title VII the committee’s intent was that the remedies of Title VII currently and as amended in the future will be applicable to persons with disabilities.
  14. Since the Rehabilitation Act incorporates the ADA’s causation standard, the motivating factor standard applies to plaintiff’s claims.
  15. Plenty of evidence exists that plaintiff’s hearing loss motivated the adverse decision, in this case termination.

III

Takeaways

  1. A question not considered by this case is whether the Rehabilitation Act outside of employees of the federal government, even applies to employment situations. We discussed that question in this blog entry. Clearly, over the years, the courts have held that it does, but it isn’t a settled question. The plain language of 29 U.S.C. §794(d) would seem to suggest that the Rehabilitation Act does apply to employment outside of federal employees.
  2. I don’t think it is particularly controversial to say that when it comes to employment cases that the causation standard under the ADA and the Rehabilitation Act are the same. The controversy is over just what “on the basis,” means.
  3. If but for causation is not solely by reason of causation, then what is it? Could it be “necessary cause,” which we discussed here?
  4. In employment discrimination matters, invariably there are more than one cause associated with the adverse decision. In a but for jurisdiction, what do you do then? This happens all the time in tort law. When I was teaching tort law to paralegals and got to this concept, I would mimic the scarecrow from the Wizard of Oz. When you have more than one cause, but for becomes extremely problematic. In tort law, the courts over the years fix that problem by saying where more than one but for cause exists, substantial factor is the principal that comes into play. Perhaps, that is what the courts mean by but for causation even if they are not using the term substantial factor. Since substantial factor is not being used where more than one cause exists, it is very unclear just what but for means. Maybe, it means, “substantial factor?” Maybe, it means, “necessary cause?” Maybe, none of those are accurate.
  5. Nassar, as we discussed here, clearly states that retaliation is one thing but status-based discrimination is something else. Accordingly, that presents a strong opening to argue that mixed motive is in play for non-retaliation ADA claims.
  6. Regarding legislative history, you really have to dig for it (I mean really dig), but legislative history discussing “on the basis,” does exist that says it was congressional intent in amending the ADA to retain McDonnell Douglas when it comes to proving up ADA discrimination. You can’t retain McDonnell Douglas without engaging in mixed motive analysis.
  7. Title I and Title III both use “on the basis,” language for causation. Title II uses by reason of. The Rehabilitation Act uses, “solely by reason of.” If the majority is to be believed, you wind up with different causation standards across the Titles of the ADA. That is, under Title II of the ADA, you would have a more generous causation standard for plaintiffs than you would under Title I and Title III because Title II uses “by reason of,” and Rehabilitation Act uses, “solely by reason of.” This doesn’t make a lot of sense.
  8. The problem with the but test for is multiple causation, which is always present in employment discrimination matters. If courts are going to continue to apply this test in the future, more clarity is needed. It will be interesting to see whether they adopt necessary cause or substantial factor in those situations. Ultimately, either Congress or the Supreme Court and then possibly Congress again are to have to figure this out. The 2020 elections may have a lot to do with this.
  9. The court finds no reason to distinguish between “because of,” and, “on the basis of.” That doesn’t make a lot of sense to me because why would Congress change the terminology if the change was superfluous or meaningless?
  10. Substantial factor and necessary cause would both allow for a cat’s paw theory of liability.
  11. Hard to understand how getting rid of “because of,” in favor of “on the basis of,” somehow leads to the conclusion that the amendments to the ADA imposed a higher causation standard than what had been previously the case. As the dissenting judge noted, the amendments to the ADA were designed to overrule a whole bunch of cases from the Supreme Court severely narrowing the ability of persons with disabilities to be protected under the ADA. Making the causation standard a higher bar for plaintiffs than what had been previously would contradict those efforts. Also, Congress was quite clear in the ADA to make clear that the Supreme Court got some of the cases, the Sutton trilogy and Toyota Motor, So, why wouldn’t have Congress been clear that the causation standard was also out of whack?
  12. When the causation issue gets to the Supreme Court, the key is going to be whether the court as configured at that time will go off on the distinction Justice Kennedy made in Nassar about status-based discrimination. If so, then mixed motive is in play. Also, if the Supreme Court decides to go with but for, hopefully it will clear up what that means when there is multiple causation involved, such as by adopting a substantial factor test or a necessary cause test.

IV

Just In

 

 

Yesterday, the United States Supreme Court granted cert. in three cases discussing whether LGT individuals are protected under title VII of the Civil Rights Act. We have discussed all of that here and here. With respect to transgender, I am going to go out on a limb here and say that it won’t even be close that transgender is protected under title VII of the Civil Rights Act because Price Waterhouse prohibits gender stereotyping. By definition, discrimination against a transgender individual involves sexual stereotyping.

With respect to sexual orientation, that is going to be a much more difficult case. If the configuration of the court remains the same, I would expect it to be a 5-4 decision with Justice Kavanaugh being the swing vote (Chief Justice Robert dissented in both Obergefell and Windsor). Justice Kavanaugh is very proud of the diversity of his clerks. One also has to wonder what impact, if any, the confirmation hearings will have on any of this. Finally, I did a Westlaw search, and my search did not reveal any cases that Judge Kavanaugh had with respect to LGBT rights while on D.C. Circuit (other bloggers are reporting there are indeed none).

So, since the decision on these cases will come down next term, expect it to be a huge campaign issue. It is entirely possible that the decision in these cases could come down just a few months before 2020 elections. Also, based upon the current case law, it is entirely possible that by the end of these decisions, transgender individuals will be protected under title VII but lesbian and gay individuals will not be. In that case, if there is a Democratic wave in 2020 (Buttigieg presidency too?), which there may not be, expect Congress to specifically amend title VII of the Civil Rights Act to include LGBT explicitly.

In a previous blog entry, I discussed the case of the National Association of the Deaf v. Harvard University. That particular blog entry talked about the magistrate judge denying Harvard’s motion to dismiss. Subsequently, Harvard filed a motion for judgment on the pleadings. On March 28, 2019, the magistrate judge, Katherine Robertson, denied and granted Harvard’s motion for judgment on the pleadings. Since the facts of the case have already been discussed in my previous blog entry, we don’t have to worry about that particular category. So, the blog entry is divided into three categories and they are: court’s reasoning ADA; court’s reasoning Communications Decency Act (CDA) Immunity; and takeaways. The reader, of course, free to focus on any or all of the categories.

I

Court’s Reasoning ADA

  1. As a preliminary matter, the primary difference between a motion for judgment on the pleadings and a motion to dismiss is that a motion for judgment on the pleadings implicates the pleadings as a whole. Such motions are treated similarly as to a motion to dismiss. Accordingly, the court views the facts contained in the pleading in the light most favorable to the nonmoving party and has to draw all reasonable inferences in favor of the nonmoving party. Judgment on the pleadings is only allowed where the facts conclusively establish that the movant is entitled to the relief sought.
  2. The court goes into considerable detail over whether a place of public accommodation under title III of the ADA has to be a physical place. Ultimately, it concludes that the court has no choice but to follow the controlling law in its Circuit, which holds that a physical place is not necessary per Carparts Distribution Center, Inc. v. Automated Wholesaler’s Association of New England, Inc., 37 F.3d 12 (1st 1994).
  3. Regardless of whether or not the Supreme Court ultimately makes the decision that a physical place is required for an entity to be subject to title III of the ADA, the magistrate found that a sufficient nexus between a physical place and the plaintiff existed in this case anyway. In particular: 1) Harvard operates a brick and mortar location; 2) the online content Harvard makes available to the general public but does not make accessible to the deaf and hard of hearing community includes Harvard@Home Presentations, which are designed to bring users inside the Harvard classroom to hear current, real-life lectures or provide them with a front row seat to University panels, alumni college forums, and other special events; 3) Harvard through its extension school offers free, noncredit courses; and 4) videos with spoken content appear in the archives of Harvard’s Peabody Museum of Art and Ethnology, Harvard’s Natural History Museum, the Institute of Politics John F. Kennedy Junior forum, Harvard’s Lifesciences Outreach program, and Harvard’s Woodberry Poetry Room. Since it can be inferred that all of this online content is the same as a good or service that is, or was, also available at one or more of the physical locations at Harvard, plaintiffs have sufficiently pled the existence of inaccessible content on websites having a nexus with on-campus activities. So, when it comes to the applicability of title III, title III is applicable regardless of whether a nexus to a place of physical accommodation is required or not.
  4. DOJ regulations do not limit a public accommodation’s obligations as to online content that it chooses to host on its websites and platforms. That said, Harvard possibly could be able to demonstrate that providing captioning, or any other available auxiliary aid or service, fundamentally alters the nature of its service or results in an undue burden.
  5. 504 regulations prohibit a recipient of federal aid from discriminating in the providing any aid, benefit or service to a person with a disability directly or through contractual, licensing, or other arrangements. 34 C.F.R. §104.4(b)(1)(i)-(vii). Also, there is no persuasive support for limiting the general prohibition against discrimination in the provision of aids, services, and benefits to persons with disabilities under §504.
  6. With respect to Harvard’s internet site containing content posted on third-party websites, that becomes a matter of Harvard showing whether the fundamental alteration or undue burden affirmative defense applies. That requires a factual record to be developed.

II

Court’s Reasoning Communication Decency Act of 1996 Immunity (47 U.S.C. §230)

  1. 47 U.S.C. §230(c)(1) (§230 of the Communication Decency Act) provides protections for a “Good Samaritan,” that blocks and screens offensive materials. In particular, it says that, “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”
  2. The effect of 47 U.S.C. §230(c)(1) is that lawsuits seeking to hold a service provider liable for its exercise of a publisher’s traditional editorial functions-such as deciding whether to publish, withdraw, postpone or alter content- are prohibited.
  3. The CDA defines an interactive computer service as, “any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including… systems operated or services offered by libraries or educational institution.” 47 U.S.C. §230(f)(2).
  4. The CDA defines an information content provider as, “any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service. 47 U.S.C. §230(f)(3).
  5. The immunity under this section only applies when the information forming the basis of the claim has been provided by another information content provider. That is, an interactive computer service provider is liable for its own speech.
  6. Near universal agreement exists that §230 must be construed liberally. Therefore, the section operates to prohibit many causes of action premised on the publication or speaking of information content.
  7. No authority exists holding the title II of the Civil Rights Act of 1964 provides an exception to the immunity afforded by the CDA.
  8. In order to be covered by the immunity provision of the CDA, three things have to be shown: 1) Harvard must be a provider or user of an interactive computer service; 2) the claim of the plaintiffs have to be based upon information provided by another information content provider; and 3) the claim must treat Harvard as the publisher or speaker of that information.
  9. No support exists for plaintiff’s claims that the CDA does not apply when a plaintiff claims disability discrimination is based upon a lack of access rather than on the content of speech.
  10. Federal and state antidiscrimination statutes, see 47 U.S.C. §230(e), are not exempted from the immunity provided by the CDA.
  11. Citing to a case from the Seventh Circuit, the court noted that the Seventh Circuit held that §230 operated to preclude Fair Housing Act claims. Citing to a case from the First Circuit, the court noted that the CDA operated to preclude a claim under the Trafficking Victims Protection Reauthorization Act of 2008.
  12. Since Harvard acknowledges that it hosts platforms to which online content may be uploaded, it isn’t absurd to treat Harvard as an interactive computer service.
  13. Since Harvard, to some extent, provides platforms in which third parties post content that Harvard does not create, produce or substantively alter, Harvard is hosting information provided by another Internet content provider.
  14. Since numerous cases include educational institutions in the CDA’s definition of Internet computer services providers, that means that Harvard gets a get out of jail free card with respect to the inaccessibility of online content created or developed by a third party that is not altered by Harvard.
  15. The CDA relieves interactive computer service providers from liability whenever they exercise control, such as blocking and screening of third-party content.
  16. Harvard’s choices about what third-party content can appear on its website and in what form, are editorial choices falling within traditional publisher function protected by §230.
  17. While §230 immunity is an affirmative defense, a motion to dismiss still works if the dismissal is evident from the face of the complaint.
  18. The court at this point is unable to determine as a matter of law whether Harvard is not in some matter a content provider at the information on its platforms originating with student, faculty members, or other scholars.
  19. Harvard does get a get out of jail free card with respect to inaccessible content that is merely embedded online content (i.e. content hosted on a third-party server that is hyperlinked in its existing form content that is hosted on a harbor platform or website), produced or created by Harvard because Harvard remains a publisher under the communication decency act as to embedded content.
  20. Would you like to be confused? Try understanding this paragraph: “Where Harvard or someone associated with Harvard is embedding a third party’s content that Harvard or someone associated with Harvard did not create or develop in whole or in part-in other words, publishing a third party’s content-Harvard is entitled to CDA immunity and to judgment on the pleadings.”

III

Takeaways

  1. The court properly notes that when it comes to whether title III of the ADA only applies to places of public accommodation that are physical spaces, is something that is very much a debate. We have discussed the issue on our blog numerous times. As I discussed in this blog entry, it is very possible that when the Supreme Court ultimately get to this issue, they will hold that a physical place is not necessary.
  2. It probably would not be all that hard to find a nexus to a physical place with respect to online content appearing on a university’s website since colleges and universities are places of education. As a place of education, disseminating information is a critical part of what they do on their brick-and-mortar campus.
  3. This case is another example of how §504 and the ADA are not always identical. Sometimes, §504 goes further than the ADA. Sometimes, it works the other way around.
  4. One of the reasons I enjoy practicing in the area of the rights of people with disabilities, is that it interacts with all kinds of laws. You would not think of the CDA and disability accessibility going together, but in this case, it does. It also means that practicing in this area can be a bit daunting because you never know where a related law is going to come from.
  5. 47 U.S.C. §230 provides for broad immunity. After this decision, look for colleges and universities in particular that are being sued for inaccessibility of their web content to rely on this case as a matter of course. In fact, it will probably be legal malpractice for colleges and universities not to do so.
  6. It is really unclear just how far the immunity goes. For example, I link to things all the time when I do my blog. However, ¶ 20 above, where the court stated: “Where Harvard or someone associated with Harvard is embedding a third party’s content that Harvard or someone associated with Harvard did not create or develop in whole or in part-in other words, publishing a third party’s content-Harvard is entitled to CDA immunity and to judgment on the pleadings,” is really unclear. The reason this paragraph is so confusing is that most certainly students and faculty will put things up with links. Those links are not college or university’s responsibility under this decision. Does the answer change with respect to anything the college or university posts as a result of a license that it has? Does the answer change with respect to anything it puts up through the fair use doctrine? What if there is content beyond the link posted on Harvard’s site? It seems from ¶ I 6 above that Harvard is on the hook for that inaccessibility absent a showing of fundamental alteration or undue burden. However, it also seems per ¶ II 14, it may or may not have immunity for such claims.

My daughter is on break this week, and next week is going to be a little hectic. So, I had a moment to do a blog entry that is quite personal to me, but I think it’s very important for everyone. As everyone knows, I am deaf and function entirely in the hearing world with very powerful and complicated hearing aids in combination with lipreading. I get 100% of my sound from my hearing aids and 50% of my comprehension from lipreading. The best lip readers get 50% of what is on a person’s lips. I also use voice dictation technology. So, I am always going through the reasonable accommodation processes. It becomes a particular issue when I travel for conventions/speaking engagements. Hotel rooms frequently don’t get what they have to do to accommodate a deaf individual that functions in the hearing world. The actual meetings don’t always understand what they need to do to accommodate a deaf or hard of hearing individuals either. So, I thought it would be useful if I listed out some do’s and don’ts of the interactive process. The blog entry is pretty short. Even so, it is divided into categories: general concerns; what not to do with the interactive process; and what to do with the interactive process. The reader is going to want to read the whole thing.

I

General Concerns

  1. The interactive process is a title I concept but the ADA scheme, case law, common sense, and preventive law demand applicability of the interactive process to title II and title III situations as well. I should point out that in the title II area, courts have held that the interactive process applies to colleges and universities when it comes to accommodating their students with disabilities.
  2. Once you are aware of an accommodation request, engage in the interactive process.
  3. Remember, magic words are not required.
  4. Whoever blows up the interactive process bears the liability.
  5. You can obtain a reasonable amount of documentation justifying the accommodation request. However, keep in mind that for situations arising under title II and title III that is NOT the case when it comes to service dogs.

II

What NOT to Do with the Interactive Process

  1. Fail to act on a reasonable accommodation request unless it is explicit as magic words are not required.
  2. Once getting a reasonable accommodation request, immediately call a vendor or other third-party instead of talking to the person making the reasonable accommodation request.
  3. Make clear to the person with the disability that you don’t want to accommodate them but you have to.
  4. Make clear that the process will be adversarial and not collaborative.
  5. Ignore suggestions from the person with the disability as to what works and/or make it clear that you don’t care what works as your organization is primary.

III

What To Do with the Interactive Process

  1. Value the individual with a disability making the reasonable accommodation request as an individual.
  2. Make clear that you are interested in a collaborative and not adversarial process.
  3. If you get stuck as to what might work, call the Job Accommodation Network.
  4. Involve the person with a disability in the process immediately and keep him or her posted throughout.
  5. Remember you will have to make the accommodation unless you can show an undue hardship (title I), undue burden (title II, III), or fundamental alteration (title II, title III, and arguably title I), all of which, as readers of this blog already know, are terms of art and are not easy to show.
  6. Remember, if effective communication is involved, the rule for title II (preferred communication to be given primary consideration by the governmental entity), and for title III (give-and-take of the interactive process with the place of public accommodation getting final call), of the ADA are different.
  7. Remember, think of a reasonable accommodation/modification as whatever gets the person with a disability to the same starting line as someone without a disability.

As everyone knows, I don’t often blog more than once a week. However, there are occasional exceptions. Yesterday, the United States Supreme Court heard oral argument in Kisor v. Wilkie, a case that has huge implications for those practicing in the area of disability rights. It has huge implications for labor and employment attorneys and title IX attorneys. In fact, anywhere in the law where you have an agency issuing guidances, technical assistance memorandums, circulars, opinion letters, etc. will be impacted by this decision. So, I read the transcript of the oral argument yesterday, and wanted to provide some analysis and thoughts. Before proceeding further, this case considers the question whether courts should continue to give a high amount of deference to the situation where an agency is interpreting its own regulations outside of the rulemaking process. The blog entry is divided into two categories and they are oral argument highlights and my thoughts. The reader is going to definitely want to read the oral argument highlights section for sure, if not the whole thing.

I

Oral Argument Highlights

  1. The attorneys barely started speaking before the Justices jumped in with all kinds of questions.
  2. Hughes arguing for Kisor said that the problem with Auer deference is that it is a circumvention of the notice and comment requirements Congress mandated by the Administrative Procedure Act.
  3. Justice Breyer said that judges simply don’t have the expertise that agencies have and so, Auer deference makes sense. The specific example he used was a “moiety,” which is something the FDA has to deal with.
  4. Justice Breyer said that getting rid of Auer deference, “sounds like the greatest judicial power grab since Marbury v. Madison, which I would say was correctly decided.” That drew a laugh from everyone.
  5. Justice Breyer noted that rulemaking process takes a lot of time whereas guidances done outside the rulemaking process takes far less. Also, forcing everything into the rulemaking process will send everything into the courts to decide without much guidance.
  6. Justice Breyer noted that the exception in the Administrative Procedure Act with regards to rate making is precisely because nobody knew anything about rate making. Therefore, Auer has some persuasion that way.
  7. Justice Kavanaugh supposed that if you got rid of Auer deference, courts could fall back on Skidmore deference, which basically says that things are persuasive authority. The other thing Justice Kavanaugh noted throughout is perhaps the United States Supreme Court could make it easier for agencies to pursue the notice and commenting process. Justice Kavanaugh also said that the problem with Skidmore deference is that it is not much deference at all to the point of being meaningless.
  8. Justice Kagan noted that Auer deference has been around for a long long time, and Congress has shown no interest in reversing it. So, she wondered why overruling it would be the appropriate course in light of congressional acquiescence.
  9. Justice Kagan noted that the underpinning of Auer deference is agency expertise. That is, judges are far less suited to make the kind of minute decisions of agency policy than agency decision-makers are.
  10. Justice Breyer noted that Auer deference is premised on the Seminole Rock case decided in 1944 and the Administrative Procedure Act was written two years later. So, Auer deference was essentially around when the Administrative Procedure Act was enacted.
  11. Justice SotoMayor noted that as a practical matter Auer deference can be traced back to cases throughout the 1800s where the court essentially engaged in Auer deference. She also noted that agencies have better expertise as well as a better understanding, oftentimes, of what the needs are under that regulation. Further, regulated parties need to have a starting point of understanding how their conduct will be viewed. She agreed with Justice Kavanaugh that Skidmore deference was essentially no deference at all. Finally, the best people who can tell parties affected by regulations as to what is going are the agencies responsible to the public for having sound interpretations or reasonable interpretations.
  12. Justice Roberts also agreed that he had no idea what Skidmore deference actually was in practice.
  13. Justice Ginsburg wanted to know what would happen if the Supreme Court threw out Auer deference with respect to all the cases that have relied on Auer deference as the basis for their decision.
  14. The Justices in general seemed very skeptical of the compromise test put forth by the Solicitor General that he proposed to replace Auer deference.
  15. Not surprisingly, Justice Gorsuch made it quite clear that Auer deference should be gone. From this blog entry, we already knew that was coming. Also, while Justice Thomas did not ask any questions, which is usually the case, in other opinions he has said that Auer deference should be gone.
  16. Justice Gorsuch noted that many private parties believe getting rid of Auer deference would actually increase stability in the system.
  17. Justice Kavanaugh said that Auer deference, which focuses on ambiguity to begin with, creates a huge sideshow and that if notice and commenting were more efficient, it might just make more sense to do noticing and commenting.
  18. Justice Kavanaugh said that a problem with Auer deference is that judges might unanimously think deferring to the agency is wrong but they are given no choice to defer because of Auer deference. He said that happens in judicial conference rooms all the time.
  19. Justice Alito wondered if overruling Auer deference in terms of the impact on cases would not be made easier if the Solicitor General approach was adopted. That approach involved a six factor test. Many of the Justices struggled with that test.
  20. Justice Breyer alluded to judicial realism, which is a concept that judges figure out the decision first and then come up with the reasoning to back the decision up. He also noted that judges are less of a democratic solution than an agency would be.
  21. Justice Gorsuch noted that the Solicitor General’s compromise approach would allow for notice outside of the rulemaking process, even including an amicus brief filed by a regulatory agency. He then wondered how that served the democratic process or the separation of powers as opposed to having an independent judge. After all, a judge is supposed to decide all questions of law consistent with the appropriate statute.
  22. Justice Alito wanted to know the conceptual basis behind Auer deference. The response from the Solicitor General was that it is based upon the presumption of legislative intent. That is, courts defer to the agency’s reasonable interpretation of its otherwise ambiguous rules as part of the delegated rulemaking authority. Justice Kagan wanted to know why that is the case. Is it expertise? Political accountability? Uniformity? A combination of all of that?

II

Thoughts

  1. This is going to be a real close case. It isn’t exactly clear from the transcript itself as to where Justice Alito stands. It is also very unclear from the transcript where Justice Roberts stands.
  2. Justice Gorsuch clearly wants Auer deference gone.
  3. Justices Kagan, Breyer, Ginsburg, and SotoMayor want to keep it.
  4. Looking at a 5-4 decision or a six 6-3 decision against keeping Auer deference. Justice Roberts is going to be the swing vote, and it is even possible it goes 5-4 in favor of adopting some kind of approach for Auer deference that is not Auer deference, though I don’t think it will be the Solicitor General’s approach that is adopted. Either way, to my thinking anyway, which most certainly could be wrong, is expect Justice Roberts to be in the majority either way.
  5. I walked into this case with certain preconceptions that were most certainly challenged by the spirited debate among the Justices. Keep in mind, I actually worked for the Illinois Joint Committee on Administrative Rules at one time. JCAR is responsible for ensuring that Illinois agencies come up with rulemaking consistent with legislative intent of Illinois legislators. That background had me being a strong proponent of Chevron deference but not Auer deference. After reading the transcript of this case, it was much more complicated than a simple binary choice.
  6. The transcript was an incredibly fascinating read. It was like reading a great book. Okay, I’m weird.

Good luck on the baseball season. Opening day is today for many of the teams. Braves open in Philly and then play the Cubs at home for their home opener (I win either way there).

Baseball season is about to get up and running. Good luck on your team for this year. In my case: the Chicago Cubs are expected to be good; the Chicago White Sox not so good; and the Atlanta Braves, anybody’s guess. Also, hope everyone is having fun if not success with the NCAA tournament. Currently, in a bragging rights pool run by my brother, I find myself in last place just behind my daughter, who watches absolutely zero basketball, though she did just finish a season of organized basketball in our local recreation league.

Today’s blog entry are appellate updates on two cases I have blogged upon previously. In the first, Lewis v. City of Union City, Georgia, the 11th Circuit came down with a published decision on March 21, 2019. In the second, Gati v. Western Kentucky University, decided January 29, 2019, the Sixth Circuit came down with an unpublished decision.

As usual, the blog entry is divided into categories and they are: Lewis v. City of Union City, Georgia; Gati v. Western Kentucky University; and Gati takeaways. The reader is free to focus on any or all of the categories.

I

Lewis v. City of Union City, Georgia

Previously, I blogged on this case here. My blog entry focused on the ADA piece of the case. That part of the case still remains at the lower court level. What was appealed was the civil rights (title VII), part of the case. The question on appeal was just when has the plaintiff put forth appropriate comparators. The 11th Circuit concluded that a plaintiff put forth an appropriate comparator when the comparators are similarly situated in all material respects. In determining whether a comparator is similarly situated in all material respects, the 11th Circuit suggested some factors to consider with respect to any comparator: 1) he or she will have engaged in the same basic conduct or misconduct as the plaintiff; 2) he or she will been subject to the same employment policy, guideline, or rule as the plaintiff; 3) he or she will ordinarily, although not invariably, have been under the jurisdiction of the same supervisor as the plaintiff; and 4) he or she will share the plaintiff’s employment or disciplinary history. The list does not appear to be exclusive because the court uses the phrase, “ordinarily, for instance, a similarly situated comparator-.” Finally, a valid comparison will not turn upon formal labels, but rather on how substantively alike the situations are. That is, the plaintiff and his or her comparators must be sufficiently similar, in an objective sense. That is, plaintiff and his or her comparators cannot reasonably be distinguished.

With respect to the ADA, I don’t see this case having much of an impact. Due to the nature of how the ADA works, you don’t often see comparators an issue in ADA cases. As mentioned previously, the ADA portion of the case is still in the District Court. Also, there is now a Circuit court split on the comparator issue. So, expect to see that question go to the United States Supreme Court at some point.

II

Gati v. Western Kentucky University

I previously blogged on this case here. Here are the key aspects of the Sixth Circuit’s reasoning affirming the District Court.

  1. A prima facie case for title II discrimination involves showing: 1) plaintiff has a disability; 2) plaintiff was otherwise qualified; and 3) plaintiff was excluded from participation in, denied the benefits of, or subjected to discrimination under the program because of her disability.
  2. A person with a disability is otherwise qualified if he or she can meet a program’s necessary requirements with reasonable accommodations.
  3. The ADA does not require an educational institution to lower or substantially modify its standards when making modifications. Rather, only reasonable not fundamental adjustments are required.
  4. The federal judiciary is ill-equipped to evaluate the proper emphasis and content of a school’s curriculum and should afford a university’s judgment and discretion great respect. That is, in assessing the importance of academic requirements and healthcare programs especially, where the conferral of a degree places the college or university’s signature upon the student as qualified to practice, the judiciary ought only to reluctantly intervene.
  5. Plaintiff bears the initial burden of proposing an accommodation and proving that it is reasonable.
  6. Western Kentucky’s faculty did not find the plaintiff’s proposed accommodations reasonable.
  7. Looking to title I cases, an employee cannot force his or her employer to provide a specific accommodation if the employer offers another reasonable accommodation.
  8. Again, looking to title I cases, if an employee rejects a reasonable accommodation, then he or she is no longer a qualified individual as a matter of law.
  9. With respect to the interactive process, even if an interactive process is required in an academic setting, that process is a means to find a person with the disability reasonable accommodations and is not an end in and of itself. Here, negotiations broke down when the plaintiff refused to consider the University’s proposed accommodations and transferred to another school.
  10. A failure to engage in the interactive process only becomes an independent violation of the ADA when the plaintiff establishes a prima facie showing that he or she proposed a reasonable accommodation, which was not the case here.

III

Gati Takeaways

  1. With respect to academic deference and disability discrimination, courts are not always going to be so nice to the University, such as discussed here. From the University perspective, it really helps if the faculty has done its homework with respect to what are the essential eligibility requirements of the program. We discussed that process here.
  2. The court says that the plaintiff bears the initial burden of proposing the accommodation and proving that it is reasonable. I always have trouble with this formulation because undue burden and fundamental alteration are affirmative defenses. Also, what is reasonable under the ADA is whatever does not constitute an undue burden or a fundamental alteration. So, does this formulation of the court’s mean that undue burden and fundamental alteration are not affirmative defenses and is something the plaintiff has to prove?
  3. The University did have its faculty consider whether they could make the proposed accommodation work without fundamentally altering the program, and the faculty decided that it could not.
  4. As we have mentioned previously, such as here, failure to engage in the interactive process is not always a separate cause of action depending upon the jurisdiction. In the Sixth Circuit, it appears that failure to engage in the interactive process can be an independent violation of the ADA where the plaintiff proposes a reasonable accommodation.
  5. The person who blows up the interactive process bears the responsibility, which is the same rule in title I cases.
  6. U.S. Department of Education’s Office of Civil Rights has said for years that failure to engage in the interactive process is an independent violation of the ADA. There is also this case holding that colleges and universities have an obligation to engage in the interactive process with respect to their students. That said, interactive process is a title I construct. Even so, I do not understand how reasonable modifications under title II and under title III are even possible to determine without engaging in an interactive process first. If you subscribe to the publication Disability Compliance for Higher Education put out by Wiley, Professor Masinter of Nova Southeastern Shepard Broad School of Law in its April 2019 issue has an excellent article on OCR’s insistence, which may or may not be problematic, on the interactive process and why it is a good idea to use it even if it is a title I construct.
  7. “Because,” is not the standard for causation in title II matters. Rather, the standard for causation is “by reason of,” which is different from the Rehabilitation Act, “solely by reason of” standard. We just discussed that here.
  8. Otherwise qualified is not the term found in title II of the ADA as amended. Rather, that term is found in the Rehabilitation Act. The term in title II of the ADA is, “qualified.” Even so, the meaning of “otherwise qualified,” and, “qualified,” are identical.
  9. Universities and colleges have a lot of programs where they signify a student is qualified to practice upon completion. You see this all the time with associate degrees and certificate programs (paralegals-an area I taught full-time in for 12 years, including running an ABA approved program for four years). So, any university or college doing our two-step process first should be in good shape if after they have completed our two-step process, it denies certain accommodation request on the grounds the program will be fundamentally altered.