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.

I promised Jon Hyman of the Ohio Employer’s Law Blog that I would hold down the fort with respect to blogging while he and his family jetted off to Italy for vacation. So, here goes. Today’s case, Reed v. Columbia St. Mary’s Hospital, comes out of the Seventh Circuit, and was decided on February 8, 2019. It is notable in a couple of respects. First, of late, the Seventh Circuit has not been kind to persons with disabilities at all. Second, the case goes into quite a bit of detail discussing the religious exemption to title III of the ADA, which simply doesn’t get a lot of litigation associated with it usually. Finally, it also discusses affirmative defenses and what happens if they are not laid out when they are supposed to be laid out. As usual, the blog entry is divided into categories, and they are: 1) Facts; 2) court’s reasoning discussing affirmative defenses generally; 3) court’s reasoning finding District Court abused its discretion by allowing religious exemption defense; 4) court’s reasoning reversing summary judgment on the Rehabilitation Act claims and failure to accommodate claims; and 5) takeaways. Of course, the reader is free to concentrate on any or all of the categories.

I

Facts

Plaintiff alleged that the hospital failed to accommodate her disability by deliberately withholding from her a device needed for her to speak and discriminated against her by putting her in the seclusion room to punish her. Defendant responded with answers to both the complaint and the amended complaint that at no time raised the religious exemption. In granting summary judgment for the defendant, the District Court held that the hospital did not have to comply with title III of the ADA because of the religious exemption in 42 U.S.C. §12187. It also dismissed plaintiff’s Rehabilitation Act claim finding that the discrimination alleged was not premised solely on her disability.

II

Court’s Reasoning Discussing Affirmative Defenses Generally

  1. 42 U.S.C. §12187 specifically exempts from title III coverage both “religious organization,” and, “entities controlled by religious organization, including places of worship.”
  2. The religious exemption in title III is an affirmative defense because it assumes the plaintiff can prove everything in order to establish her claim, but still loses because of the affirmative defense.
  3. It makes perfect sense for a defendant claiming the title III religious exemption to bear the burden of pleading and proof with respect to its religious control. After all, the facts are ordinarily within the knowledge and control of the defendant.
  4. A defendant’s failure to plead an affirmative defense can result in either a waiver of the defense if the defendant has relinquished it knowingly and intelligently, or it can result in a forfeiture of the defense if the defendant failed to preserve the defense by not pleading it.
  5. The purpose of the pleading requirement for an affirmative defense is to avoid surprise and undue prejudice to the plaintiff by providing for notice and the opportunity to demonstrate why the defense should not prevail.
  6. A defendant remains obligated to act in a timely fashion when it comes to affirmative defenses. Once the availability of an affirmative defense is reasonably apparent, the defendant has the obligation to alert the parties and the court of his intent to pursue that defense. A defendant cannot be permitted to lie behind a log and ambush a plaintiff with an unexpected defense. In that situation, the appropriate thing for a defendant to do is to promptly seek the court’s leave to amend the answer. Failure to do that, risks a finding the defense has been waived.
  7. Many efficiencies are lost when claims or defenses are left out pleadings and a party then attempts to assert them at later stages.
  8. It is the same set of problems that occur when plaintiffs try to raise new theories or claims for the first time when opposing summary judgment. The concerns about unfair surprise and prejudice with non-pleaded affirmative defenses are similar. That is, late assertions of affirmative defenses, including the title III religious exemption defense, make litigation more costly and difficult. It also makes it unfairly difficult for plaintiff to pursue her claims.
  9. The title III religious exemption is based on facts in the defendant’s control and clearly falls within the category of affirmative defenses that must be pleaded.
  10. The fact that a witness possibly alluded to a religious exemption defense being possible, doesn’t mean that the plaintiff was on fair notice that the religious exemption defense was in play. The statement made by the witness is not comparable to a lawyer’s statement that the party intends to assert a defense. The statements by the witness in her deposition did not put the plaintiff on fair notice that the hospital would be asserting the religious exemption and that the plaintiff was going to have to spend the time and money to conduct extensive discovery on whether the hospital can satisfy the ADA’s religious exemption.
  11. The fact that plaintiff knew when she filed the suit that the hospital was at least nominally associated with the Catholic faith is of no help to defendant either. Nominal association tells a plaintiff nothing about the availability of the religious exemption because the statutory test is the control exercised by the religious organization. After all, all kinds of entities have names associated with religions but are not subject to religious control.
  12. With respect to the facts of this case, it turns out that the hospital had two lines of control (Catholic and non-sectarian).

III

Court’s Reasoning Finding District Court’s Abused Its Discretion in Allowing the Religious Exemption Defense

  1. The hospital offered no excuse or explanation for failing to plead the defense in its answers or for raising the defense so late.
  2. Absent a credible excuse for the delay, the hospital’s late invocation of the defense looks like a straight ambush of the plaintiff when it was too late for the plaintiff to put together a comprehensive rebuttal.
  3. The religious exemption defense ordinarily depends on facts within the knowledge and control of the defendant.
  4. The defendant did not deploy this defense until after discovery had closed. That means both parties had already invested a good deal of time and money in the case on the legitimate expectation they knew what the issues were.
  5. Allowing a last-minute defense introduces new factual and legal issues after discovery has closed, adds to the cost of litigation, and allows the party that was at least negligent in failing to plead the defense to take unfair advantage of the opposing party.
  6. The District Court’s rationale for allowing the defense to be used so late doesn’t hold up. Here, a few relevant facts to the affirmative defense came up briefly in one deposition, but that cannot be reasonably treated as fair notice that the hospital would actually assert the defense thereby causing the plaintiff to have to spend time and money needed to meet that defense. Accordingly, the plaintiff was entitled to rely on Federal Rules of Civil Procedure 8(c) requiring affirmative defenses to be pleaded in answers.
  7. It was not the plaintiff’s obligation to raise the defense.
  8. If Rule 8(c) is not to become meaningless, attempts to invoke defenses at the 11th hour, without excuse and without adequate notice to the plaintiff, cannot be tolerated.
  9. The prejudice to the plaintiff from the delayed assertion of the defense is especially problematic here because the relevant law and the facts are not clear.
  10. The ADA does not define what it means to be a religious organization or to be controlled by a religious organization. Further, no federal appellate court has yet analyzed this religious exemption.
  11. With respect to the District Courts analyzing the religious exemption, the issue is very complex on a factual and legal level. What the courts have done is look at the Department of Justice interpretation of its rules in 28 C.F.R. part 36 to try and figure things out. That interpretation says the religious exemption test is a factual one. That is, the focus is on whether the church or other religious organization controls the operations of the school or of the service. That test also focuses on whether the church or religious organization operates the place of public accommodation and not upon the individuals receiving the services of that public accommodation.
  12. Here, the religious exemption defense means assessing a whole bunch of facts that are very much in dispute and need to be explored in some depth. Before summary judgment briefing, the plaintiff had no notice that she needed to prepare to meet that defense.
  13. Where a defendant offers no credible excuse for delay, the normal rule is forfeiture of non-pleaded defenses.
  14. Any reopening of discovery would impose additional delay on the plaintiff, and there are no mitigating factors favoring anything other than treating the defense as forfeited.

IV

Court’s Reasoning Reversing the District Court’s Granting of Summary Judgment on the Rehabilitation Act Claim and on the Failure to Accommodate Claim

  1. Making out a prima facie case for violation of §504 of the Rehabilitation Act involves showing: 1) the plaintiff is a handicapped individual; 2) the plaintiff is otherwise qualified for participation in the program; 3) the program receives federal financial assistance; and 4) the plaintiff must have been denied the benefits of the program solely because of his or her handicap.
  2. The ADA and the Rehabilitation Act are very close to each other in their substance, but the Rehabilitation Act prohibit discrimination only if it is solely by reason of a person’s disability. Whereas, the ADA permits mixed motive claims.
  3. While the Rehabilitation Act does not contain an explicit accommodation requirement, the United States Supreme Court has found a duty to accommodate in the statute generally.
  4. A review of the facts shows that a jury could find that nothing the plaintiff conceded happened would have justifiably led to the hospital taking her to the seclusion room. That is, the material facts leading to the plaintiff being placed in seclusion are very much in dispute. So much so, that a reasonable jury could find that the hospital intentionally discriminated against the plaintiff solely on the basis of her disability.
  5. The court also reversed the summary judgment with respect to the plaintiff’s reasonable accommodation claim finding that the hospital had not argued that the decisions it made were done in the exercise of professional judgment to treat plaintiff’s mental illness.

V

Takeaways

  1. Religious exemption is an affirmative defense. Make sure you plead it in the answer. Failure to do so will likely result in forfeiture of the defense.
  2. Remains to be seen whether the hospital might pursue a malpractice action against its attorneys. After all, it’s possible had the religious exemption defense have been alleged in its answer, the hospital would have gotten a get out of jail free card. Also, the court actually uses the term “negligence,” when discussing the failure to plead an affirmative defense.
  3. If during the course of discovery, it becomes clear to the defense that the religious exemption is in play, be sure to seek leave from the court to amend your answer.
  4. It is entirely possible that a defendant may be aware of the religious exemption defense but for a variety of reasons elects not to pursue it.
  5. Religious exemption affirmative defense claims are very complex factually and legally. The legal complexity may be about to get a whole lot worse with the expected decision from the United States Supreme Court in Kisor (oral argument on that case will take place next week, but the result- getting rid of Auer deference-, is a foregone conclusion, though I could be wrong).
  6. For the religious exemption to apply, nominal association with the religious entity is not going to work.
  7. The religious exemption focuses on the control exercised by the religious organization and not upon the people receiving the services.
  8. The court uses the term “handicapped,” which is a term very much out-of-favor and has been for some time. The better language to use is a person with a disability. 29 U.S.C. §794 (§504 of the Rehabilitation Act), does use the term disability.
  9. The Seventh Circuit acknowledges that causation is different between Rehabilitation Act cases and ADA cases. That causation is different between the Rehabilitation Act and the ADA is something readers of this blog have known for a long time, see here, but it is significant that a Court of Appeals is saying as much.
  10. Prevailing on a religious exemption affirmative defense at the summary judgment stage is going to be very difficult after this case.
  11. In case you are wondering why your place of worship (it is a real problem in the Jewish faith from what I have read), is not accessible to a person with a disability, this blog entry gives you your answer.

Today’s blog entry is a triple play. In the first, we will go over an advice column and discuss what they got wrong and what they got right. In the second and third situation, we will briefly discuss two cases that came down from the Second Circuit recently: dealing with hostile environment under the ADA claims; and dealing with essential functions of the job. As usual, the blog entry is divided into categories and they are: the advice column; the hostile work environment case/takeaways; and the pharmacist who is afraid of needles case/takeaways. The blog entry is pretty short, and so, you probably will want to read the whole thing, but you certainly don’t have to.

I

In an Ask Sam column, which can be found here, a reader asked the question whether as the owner of a rental property, just what were the rules for service dogs on the premises since obviously not all requests were coming in for service dogs.

  1. The column gets it right that landlords may not discriminate against a tenant with disability regarding the leasing of a property because the person with a disability has a service animal. I am presuming the column is talking about a residential unit and not a place of business.
  2. The column also gets it right that North Carolina has a system for registering service animals.
  3. The column gets it right that a landlord cannot assess a pet fee for a service animal, and that the tenant is responsible for any damage to the leased premises caused by the service animal.
  4. The column more or less gets it right when it talks about what is the definition of a service animal. For that, see this blog entry. It does get it right with respect to examples of what might be a service animal.
  5. The column gets it wrong in saying that registration with North Carolina is necessary in order to have permission for a service animal to be in the unit. Federal law, in this case the Fair Housing Act, trumps state law and federal law contains no such requirement.
  6. The column gets it wrong in a big way when it says that comfort animals, which presumably includes emotional support animals, do not qualify as a service animal under either the ADA or the North Carolina statute, AND therefore, in those situations the landlord can enforce a no pet policy. The first part of this sentence is correct but since it is dependent upon the second part of the sentence, the whole thing fails. As we know from our blog entries, the Fair Housing Act, which is the law that applies to residential unit being leased, specifically allows for emotional support animals as an assistance animal. Failure to get this right can cost you big time, as we discussed here.

II

Hostile Work Environment Case and Takeaways

Two labor and employment bloggers do a real nice job discussing the hostile work environment case. Those blogs are Bergstein and Ullrich’s Wait a Second blog (Wait a Second also blogged on the scared of needles case as well), in my blog roll and which can be found here, and Fisher and Broyles Employment Law blog, here. As everyone knows, if other people blog on the case, I may blog on it as well if I can add a perspective to it, and so, here goes.

In Fox v. Costco Wholesale Corporation, the Second Circuit was faced with the question of deciding whether a hostile work environment claim flies (it does and questions of fact existed to defeat summary judgment), with respect to the ADA. The Second Circuit reasoned as follows:

  1. The 4th, 5th, 8th, and 10th Circuits have all held that the ADA supports a hostile work environment claim.
  2. Under the ADA, a covered employer shall not discriminate against a qualified individual on the basis of disability in regard to terms, conditions, and privileges of employment. That language is borrowed from title VII, which has very similar language. Therefore, when Congress used that language, it was using a legal term of art that prohibited a broad range of employment practices, including workplace harassment.
  3. When the ADA was enacted, the United States Supreme Court had already twice concluded that title VII provided for hostile work environment claims.
  4. Title VII and the ADA share a purpose to prevent discrimination against a defined class of people. Since the two statutes share a common purpose and the ADA echoes and expressly refers to title VII, it necessarily follows that people with disabilities should be able to assert hostile work environment claims in the same way people without disabilities can assert title VII claims.
  5. A person alleging a hostile work environment claim under the ADA must demonstrate either that a single incident was extraordinarily severe, or that a series of incidents were sufficiently continuous and concerted to have altered the conditions of the working environment. That analysis is a totality of the circumstances test.
  6. Plenty of evidence existed to create a question of fact as to whether the plaintiff endured a hostile work environment.

Takeaways;

  1. The plaintiff in this case had Tourette’s syndrome as well as obsessive-compulsive disorder since birth. The plaintiff did certain things in order to compensate for that disability, and fellow employees simply didn’t get it. Further, they mocked him for it.
  2. You don’t need an adverse employment action for a hostile work environment claim. Rather, you just have to show an alteration in the conditions of the working environment. They are not at all the same thing. Indeed, here the court finds that a hostile environment could well have existed even though no adverse action occurred.
  3. Perhaps, a Circuit Court split will develop on the issue of whether the ADA allows for a hostile work environment claim. However, I think it is just as likely that no such split will ever occur. Also, if it ever gets to the United States Supreme Court, I can’t imagine the Supreme Court – even with it being an employment case and even with this makeup of the court- saying no to such claims, but who knows.
  4. When it comes to hostile work environment and persons with disabilities, it will be very important for a plaintiff to be able to show the judge what was in the mind of the plaintiff as he or she had to endure all these things. It isn’t necessarily going to be obvious. Plaintiff may want to consider using expert testimony on that.
  5. When problems like this surface, don’t wait months to deal with it. Get on it immediately.

III

The Pharmacist Who Simply Can’t Give Shots

In Noel v. Walmart Stores, East LP, the Second Circuit was faced with the question of whether a motion to dismiss should be affirmed where a pharmacist who had a fear of needles would not give out shots to consumers wanting flu shot and other shots. The Second Circuit held that dismissing the case was not right and gave the following reasons:

  1. When Walmart announced that all pharmacy employees had to administer immunizations, plaintiff specifically sought an accommodation. Walmart in response sent the plaintiff a letter informing him that his request had been granted, that he was capable of performing the essential functions of the position, and that they were reasonably accommodating his disability. While the letter did note that the accommodation was subject to further review, including any changes in the job description, the job description was never altered at any time following receipt of the letter.
  2. When considering whether a job function is essential, the court noted the seven factor test laid out by the EEOC. However, the court notes that in these situations it is up to the court to conduct a fact specific inquiry into both the employer’s description of the job and to determine how the job is actually performed in practice.
  3. At the time of plaintiff’s constructive discharge, the job description had yet to change.
  4. The only way to arrive at the conclusion reached by the District Court dismissing the case was to discredit the plaintiff’s well pleaded allegations and discount Walmart’s own letter. That is not something that can be done on a motion to dismiss.

Takeaways:

  1. Employers are under no obligation to waive essential functions of the job. However, employers do have to consider restructuring of the job, which we discussed here.
  2. Keep job descriptions current. That is, if you do change the essential functions of the job, make sure the job description changes with it.
  3. Regardless of what is in the job description, the critical question is what is occurring on the ground. So, figure out some way to periodically review job descriptions and compare them to what is actually happening.

 

 

Today’s blog entry returns us back to the world of employment law. One of the things that drives me crazy is that people, including judges, sometimes forget whether a person is qualified to do a particular job means assessing whether the individual can perform the essential functions of the job WITH or without reasonable accommodations. Today’s case, Todd v. Covenant Security Services, Inc., from the Western District of Kentucky, does an excellent job of walking through the whole essential function analysis and making clear that it is really important to focus on whether the essential functions of the job can be done WITH or without reasonable accommodations. As usual, the blog entry is divided into categories, and they are: facts; framework for handling essential function claims; court’s reasoning essential functions of the job; court’s reasoning interactive process; court’s reasoning retaliation; and takeaways. Of course, the reader is free to focus on any or all of the categories.

I

Facts

Plaintiff provided security services to defendant’s customer, Kimberly-Clark, in its Owensboro, Kentucky facility for 6 ½ years. He was assigned to the second shift with work hours being from 3 PM until 11 PM. His actual job was more like a clerk job with his main responsibilities operating or manning the over the road truck desk and the shuttle desk and paperwork related to both. He received favorable employment evaluations from the defendant.

The written job description for the security officer position at the Kimberly-Clark facility in place at the time Todd was hired had a physical requirement of an ability to walk several miles per day. Plaintiff testified that security officers patrolled rounds early in his employment, but the patrol rounds were not performed during the majority of his employment. He also testified that he voluntarily performed patrol rounds during those years and was permitted to use his own vehicle for a Kimberly-Clark vehicle during the exterior facility and parking lot rounds. In 2013, plaintiff suffered a disabling impairment and notified the defendant that he had a physical issue relating to his back and was unable to work more than 32 hours per week. In response, the defendant adjusted his schedule.

In January 2015, an issue arose with plaintiff’s delay in turning in bills of lading during his shift. That led to his immediate supervisor and the site supervisor sending an email mandating the use of patrol sheets on all rounds. After receiving the email, plaintiff sent an email to the site supervisor requesting a reasonable accommodation for the additional job responsibilities of the mandatory patrol rounds on each shift. Plaintiff specifically requested some type of mobility device to enable him to make rounds inside the plant and an exception to allow his personal vehicle beyond the gate to deliver the bill of ladings. The defendant did make a temporary accommodation in response to plaintiff’s request by temporarily excusing him from performing the duty of a patrol during the shift. Evidence showed that another individual voluntarily handled the walking patrols from March 5, 2015 until at least September 2015. At some point, that person notified the defendant that he no longer wished to perform all the walking patrols.

In May 2015, plaintiff’s physician completed the medical inquiry for reasonable accommodations under the ADA form at the defendant’s request. That form was submitted to the defendant by the plaintiff. The foreman noted that the plaintiff suffered from chronic low and thoracic back pain and that the condition was a permanent, long-term physical impairment that substantially limited plaintiff’s ability to walk, but that he was able to work. In July 2015, defendant modified the written job description for security officers to include routine vehicle patrols of the facility parking lot and exterior patrols of the facility as well as routine internal foot patrols of the facility.

On October 6, 2015, plaintiff’s immediate supervisor, site supervisor, and defendant’s human resources officer requested to meet with plaintiff. At that meeting, plaintiff again requested a reasonable accommodation to enable him to complete patrol rounds. The accommodations he requested included: 1) plaintiff would handle the heavier traffic volume desk and his co-worker would handle lower traffic volume desk in the patrol rounds; 2) defendant would provide him with a mobility device; 3) plaintiff’s supervisor would perform the patrol rounds on the second shift as he volunteered to do; and 4) plaintiff be permitted to use his own vehicle or drive a vehicle of the defendant’s in order to do to patrol rounds outside of the facility. Plaintiff represented that his site supervisor and the human resources officer denied the accommodations, informed him that he could not perform the job under the new requirements, and terminated his employment. He also represented that he offered to stay until the employer hired someone to replace him but was informed that the defendant had already hired his replacement, a 22-year-old male.

Plaintiff brought suit in state court under both the ADA and the Kentucky Civil Rights Act as well is under the Age Discrimination in Employment Act. Of course, defendant remove the action to federal court. The court winds up dismissing the Age Discrimination in Employment Act claim because the prerequisite procedural steps were not done.

II

Court’s Reasoning Framework for Handling Essential FunctionsClaims

  1. Since the language of the Kentucky Civil Rights Act mirrors the ADA, they both get analyzed under the ADA framework.
  2. For a plaintiff to prevail on a failure to accommodate claim, a plaintiff has to show that: 1) he has a disability under the ADA; 2) he is a qualified individual for that particular position; 3) the employer knew or had reason to know of his disability; 4) he requested a reasonable accommodation; and 5) the employer failed to accommodate him.
  3. If the prima facie case is met, an employer can rebut that by showing that the proposed accommodation either eliminates the essential function of the job or the proposed accommodation imposes an undue hardship on his business.
  4. Under the ADA, 42 U.S.C. §12111(8), a person is a qualified individual where they can with or without reasonable accommodation perform the essential functions of the employment position they hold or desire.

III

Court’s Reasoning Pertaining to Essential Functions of the Job

  1. A job function is essential if its removal fundamentally alters the position.
  2. In considering whether a job duty is essential, the EEOC, at 29 C.F.R. §1630.2(n)(3)(i)-(vii), looks to a variety of factors: 1) the employer’s judgment as to which functions are essential; 2) written job description prepared before advertising or interviewing applicants for the job; 3) the amount of time spent on the job performing the function; 4) the consequences of not requiring the incumbent to perform the function; 5) the terms of the collective bargaining agreement; 6) the work experience of past incumbents in the job; and/or 7) the current work experience of incumbents in similar jobs.
  3. Whether a function is essential is so highly fact specific that it is typically not suitable for resolution on a motion for summary judgment.
  4. The ADA does not limit an employer’s ability to establish or change the content, nature, or functions of a job (this is the big issue with respect to what Walmart is doing with the Greeters positions).
  5. Evidence exists that the necessity and schedule of patrol rounds was determined by both the defendant and Kimberly-Clark and that the patrol rounds were implemented to ensure safety at the facility.
  6. Just because the defendant forgave the mandatory patrol rounds for a period of just about eight months, does not mean that the daily patrol rounds were not essential. That is, an employer does not concede for all time that a function is nonessential simply because it allows an employee to stop performing that function temporarily.
  7. Plaintiff presented no evidence to rebut the conclusion that patrol rounds were essential to the security officer position.
  8. Plaintiff bears the initial burden of proposing an accommodation and showing that the accommodation is objectively reasonable.
  9. An accommodation is reasonable if it is necessary in light of the plaintiff’s known physical limitations.
  10. The reasonableness of the requested accommodation is generally a question of fact.
  11. An employer is under no obligation to accommodate individuals by shifting essential job functions onto others.
  12. Genuine disputes of material fact exists whether plaintiff could have performed the essential functions of the job of the security officer with reasonable accommodations. In particular, plaintiff requested defendant provide him with a mobility device and/or permit him to use his own vehicle or a vehicle of the defendant in order to do to patrol rounds outside of the facility.
  13. While defendant claimed that the use of mobility device was rejected by Kimberly-Clark for safety reasons, defendant did not provide any evidence from Kimberly-Clark that the mobility device was rejected on the basis of safety or that the concerns rose to the level of undue hardship.
  14. The rejection of the mobility device for the external facility patrol on safety grounds is suspect given that the defendant and Kimberly-Clark permitted security officers and other individuals to walk or patrol the exterior of their facility on foot despite the heavy volume of large vehicles in the parking lot.
  15. A reasonable jury could believe that since mobility devices come in so many different varieties, the defendant and the plaintiff could have found a mobility device that was small, compact, and either permitted the plaintiff to stand the entire patrol round or transfer from a sitting to standing position during the patrol rounds.
  16. A reasonable jury could also believe that the defendant and the plaintiff could have found a mobility device that would limit the speed of the device to the equivalent of an individual briskly walking in order to minimize the device interfering with manufacturing operations.
  17. While an employer is not required to eliminate essential functions of a job in order to accommodate an employee with a disability, permitting one employee to patrol inside and another employee to proposal outside is not eliminating an essential function of the job. Rather, that it just restructuring the job.

IV

Court’s Reasoning Interactive Process

  1. The ADA imposes a duty on the employer to engage in an interactive process.
  2. The purpose of the interactive process is to determine the appropriate reasonable accommodation for a given employee. That process should identify the precise limitations resulting from the disability and the potential accommodations that overcome those limitations.
  3. Both parties to the interactive process are required to participate in the process in good faith.
  4. Where an employer readily meets with the employee, discusses any reasonable accommodation, and suggest other possible positions for the plaintiff, the employer has then generally fulfilled its obligations.
  5. Prevailing on an interactive process claim, means that plaintiff has to show that: 1) he is qualified for the position; 2) the employer failed to participate in the interactive process in good faith; and 3) a reasonable accommodation would have been possible had the employer participated in the process.
  6. When plaintiff made his request for reasonable accommodation, no one from the defendant met with him regarding his request for reasonable accommodation for approximately seven months.
  7. Not until the defendant had already hired someone to replace the plaintiff, did a meeting occur to discuss reasonable accommodations.
  8. No evidence exists that the defendant suggested any alternative reasonable accommodations. Instead, the record shows that the defendant refused all of the suggested accommodations proposed by the plaintiff.
  9. A reasonable jury could find that the defendant did not attempt to entertain plaintiff’s requested accommodations. The jury could also reasonably conclude that the defendant failed to engage in the interactive process in good faith thereby preventing the parties from discovering and implementing accommodation that might have worked for the plaintiff to remain as a security officer.

V

Court’s Reasoning Retaliation

  1. Prevailing on a retaliation claim means showing: 1) plaintiff engaged in a protected activity; 2) the exercise of protected rights was known to the defendant; 3) the defendant took adverse employment action against the plaintiff; and 4) a causal connection between the protected activity and the adverse employment action existed.
  2. Requesting a reasonable accommodation is a protected act.
  3. Once a plaintiff has established a prima facie case, then the employer has to show a legitimate nondiscriminatory reason for its actions.
  4. The only evidence presented by the plaintiff suggest that defendant terminated the plaintiff because of his disability and not because he requested an accommodation for that disability. Accordingly, a reasonable jury under the facts could not find that the defendant discharged the plaintiff because he asked for an accommodation.

VI

Takeaways

  1. Oftentimes, you see cases where the disability discrimination claim fails but the retaliation claim continues because retaliation claims are broader in their scope. This is not one of those cases.
  2. At the very beginning of the opinion, the court says that the mere existence of a scintilla of evidence in support of the non-moving party’s position on summary judgment is insufficient. That is, there has to be evidence and with the jury could reasonably find for the nonmoving party. We have seen this scintilla language before here, where that court said the exact opposite. The bottom line here is check your jurisdiction. Depending upon the judge and your jurisdiction, very different views of how to deal with summary judgment motions exist.
  3. If a job function is essential, you are under no obligation as an employer to waive it. However, keep in mind that the analysis focuses on whether the essential functions of the job can be performed WITH reasonable accommodations. Also, don’t forget about restructuring the job. That is, switching essential functions of various jobs around.
  4. I wonder what would have happened if the employer had called the Job Accommodation Network first?
  5. Not all jurisdictions have a separate cause of action for interactive process claims. That is, some jurisdictions don’t have a separate claim for interactive process but fold it into the broader ADA claims. Many jurisdiction do have a separate cause of action for violation of the interactive process. Again, be sure to check how your jurisdiction deals with that.
  6. If you as an employer are going to not think about restructuring of the position, be prepared to show an undue hardship (i.e. fundamental alteration), on the business. Also, remember any denial of an accommodation gets measured against the undue hardship standard.
  7. Just because an employer waives an essential function for a period of time, that does not create a situation where the employer is prevented from arguing later that they don’t have to waive that essential function. Of course, this does raise the question of why you would want to waive an essential function of the job in the first place.
  8. Essential function of the job is something that can be decided on summary judgment, but convincing a court of that is not an easy task.
  9. It is much harder to convince the court that the reasonableness of a reasonable accommodation request should be decided on summary judgment as that is generally a question of fact. In making this statement, the court cited to the deaf lifeguard decision we discussed here.
  10. Restructuring and shifting job functions onto others are different concepts. Shifting essential job functions onto others implies a one-way street. Restructuring implies that essential functions of the job are being flipped from both positions. Shifting an essential function of the job onto someone else is not required, but restructuring may be. From all the cases I have read over the years, restructuring of the position is not something you read a lot about, and therefore, is probably an underutilized strategy when it comes to figuring out reasonable accommodations.
  11. If a request for reasonable accommodation is made, don’t wait seven months to deal with it. Get on top of it right away. Also, be sure that a true interactive process occurs.
  12. While it isn’t unusual for a disability discrimination claim to fail, but a retaliation claim continues, occasionally, such as here, you see the situation where the disability discrimination claim continues but the retaliation claim fails.
  13. The EEOC factors for essential functions drive me nuts because of the complexity. In the vast majority of situation, you can keep it simple by focusing on whether the function is fundamental to the job. Another way to look at it is just like the court described in the case we are discussing here, which is ask if the functions removal fundamentally alter the position.
  14. Keep job descriptions current. What matters is what is happening on the ground. Anything happening on the ground will prevail over what the job description says.
  15. Make sure your employees understand what is the interactive process. That is an ideal situation for training and role-playing.
  16. I love the way this case attacks handling whether a person is capable of performing the essential functions of the job with or without reasonable accommodations (i.e. qualified under the ADA and otherwise qualified on the Rehabilitation Act). It also does a wonderful job of explaining the interactive process. So, I strongly recommend this case for reading for anyone trying to get a handle on what it means to be otherwise qualified/qualified. I also strongly recommend it for anyone trying to understand the interactive process. I think you will and is library the actual.

Postscript: It turns out that after the decision discussed in this blog entry, it was discovered that the plaintiff had filed an SSDI application containing all kinds of indicators that he could not possibly do the job with or without reasonable accommodations. Based upon that, the court winds up granting summary judgment to the defense based upon the newly acquired evidence here.

My family just got back from spending last week at Universal Orlando. We had a great time. An excellent place to take a teenager. I thought I would offer some thoughts on the accessibility challenges I saw while I was there. Before proceeding with that, I absolutely strongly encourage anyone who goes to Universal Orlando to pay the extra money for the fast pass. With the fast pass, you can zip through all the attractions. Without it, you may be waiting in extended lines. The convenience is well worth it. If by chance anyone in your family deals with issues that would be aggravated by waiting in long lines, then the fast pass is absolutely essential. Even if you do not have a family member with issues that would be aggravated by waiting in long lines, if you are going with a teenager, I would strongly encourage the fast pass anyway. Bottom line: get the fast pass. While I would definitely say get the fast pass, we found the “meal plan,” to be disappointing. At Disney, such a plan allowed us to eat at many of the fine restaurants in the park. However, that is not the case with Universal. The sitdown restaurants don’t take it. It only applies to the quick eats, and not all of them take it. That said, some of the quick eats places are very good.

As mentioned above, I thought I would share some of my thoughts about disability accessibility from my trip, and they are below:

  1. Universal Orlando does have information about accessibility for people with a variety of different disabilities, which can be found here. Once at this site, you could click on another link and get to the brochure talking about accessibility information for a variety of disabilities. That brochure can be found here.
  2. The rides vary from no impact (stationary seating available), to severe impact. A couple of the rides at least offer stationary seating, such as minyan rush and shrek. I wish they had more stationary seating options for those who struggle with rides of anything more than low impact.
  3. Some of the rides may be low impact, but may have aggressive spinning, such as the men in black attraction. Other rides may be an issue for those scared of heights. The Harry Potter castle ride may fall into that category as does the ride that allows you to quite literally fly over the Jurassic Park area in what is essentially a wooden swing.
  4. The personnel standing in front of the attraction were generally very good about explaining the low impact of the ride, though that could be hit or miss. For example, the men in black personnel was really good about explaining the low impact of the ride, but completely missed the very aggressive spinning of the ride. It helps if you have a frame of reference so as to invite personnel standing in front of the attraction to compare it to other rides.
  5. We are not a roller coaster family, and so we did not ride any roller coasters. With respect to the impact of the rides, on the low side you had Kong and Fast And Furious. The high side was the Harry Potter ride in the castle, which my daughter and wife said was really intense.
  6. I didn’t see any culturally deaf individuals at the park, but that doesn’t mean they weren’t there.
  7. Some of the attractions had open captioning on their TV prior to entering the ride, but it was hit or miss. For example, my wife and daughter told me that the Jimmy Fallon ride would simply be too high of an impact for me to ride. So, I waited in the family area with them to complete the ride for their second time. The TV in that room was not open captioned.
  8. Many of the rides combine a motion experience with intense imaging. Depending upon the disability, a person with a disability may go on information overload as a result. It also leads to the question of whether it is even possible to accommodate a culturally deaf individual with respect to the information presented on any of those rides. Accordingly, I can definitely see the raising of a fundamental alteration defense.
  9. We have talked about service animals several times in our blog. As everyone knows, a place of public accommodation has the right to ask two questions with respect to whether the animal is a service animal where it is not readily apparent that the animal is a service animal. That all sounds nice in theory, but when you see it happen in practice or envision how it might happen in practice at a park like Universal Orlando, it creates all kinds of issues. First, the people manning the rides are often teenagers or college students. Having them ask two questions and then having them make decisions appropriate would not be a simple task. Of course, you could say ask the two questions anyway as a deterrent matter and no matter what the answer is, let them in. Second, many of the rides simply won’t work with a service animal because of the impact or force associated with the ride. That said, Universal Orlando in the materials mentioned above does talk about how service animals may be able to go on some of the rides with the handler. Third, getting into the park involves going through a security area and then going into the park itself. Having personnel ask the two questions in that context would certainly make line management much more difficult.
  10. I did see a person bring a dog onto the bus that took us back to the hotel from the park. The dog was incredibly well behaved and well trained. I have no idea whether it was an emotional support animal or a service dog. I certainly did not get the sense that the bus driver asked the individual the two questions. As it was not readily apparent that the dog was a service dog, the bus driver would’ve been within his or her rights to ask the two questions. The problem with that is that it would have been extraordinarily uncomfortable for the driver and for the person holding the dog as well as for the people on the bus to see that unfold. I don’t know if the hotel wherever that individual was staying asked the two questions about the service animal.
  11. While there very well could be a fundamental alteration defense raised with respect to many of the rides depending on the disability a particular person has, the park does have the obligation to do everything short of a fundamental alteration to make the park and its attractions accessible for persons with disabilities.
  12. One wonders how a culturally deaf individual would fully enjoy many of the rides because it is the combination of the sound, visual effects, and the motion that makes for the thrill of the ride. That might explain why I didn’t see many culturally deaf individuals.
  13. With respect to the force and impact of any given ride you really do have to ask. As a liability protection matter on the part of Universal, the signs tend to be the same regardless of the ride. However, there can be a big difference between each individual ride. For example, the impact of Fast and Furious or Kong v. the impact of the Harry Potter castle ride are enormously different. Even the impact of minion rush is significantly different than Kong or Fast and Furious.
  14. This isn’t the first time we have talked about amusement parks. With respect to amusement parks, you can find our discussion about the ADA issues that come up there here and here.

Before getting started on our blog entry for the week, I want to let everyone know that next week my daughter’s school has a break, and we are off to Universal Orlando for the week. We are all big Harry Potter fans. So, with Monday being a holiday and my daughter being off with some appointments, I am not sure I will get a blog up on Monday. No way, I get a blog up the rest of the week. I will definitely be back blogging the week of the 25th.

One of the things that we have talked about in our blog is the difficulty of class actions when it comes to persons with disabilities. It is, as we have discussed here, very difficult to pull off. I do see them with respect to deaf and hard of hearing access. I also see it with respect to the treatment of prisoners with disabilities, which we discussed here. Other than that, very difficult to pull off. Now comes a case from the District Court of Nebraska saying that a class action can proceed with respect to a particularly egregious fitness for duty policy of the Union Pacific Railroad Company. The case is Harris v. Union Pacific Railroad Company from the U.S. District Court in Nebraska decided on February 5, 2019. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning allowing class action to proceed; and takeaways. I have broken down the reasoning into specific compartments. Of course, the reader is free to focus on any or all of the categories.

I

Facts

Union Pacific has a companywide fitness for duty program. The policy, effective 2014, works like this. Employees in certain positions are required to disclose specific health conditions. That policy automatically precludes employees disclosing those conditions from employment. Those employees then have to have a fitness for duty evaluation, and according to plaintiffs, Union Pacific routinely ignored the medical opinions of outside doctors. The records are then sent to a doctor, a Dr. Holland, in Olympia, Washington and his support staff. The doctor and his staff do not do a physical evaluation, then he and his designees make all decisions regarding who is fit for duty.

The plaintiffs are all previous employees of Union Pacific. Many had worked for years and were allegedly qualified in performing their jobs with no problem. They were pulled from their jobs under this program, evaluated, and then excluded from their positions with Union Pacific even though, according to the plaintiffs, they had no trouble fulfilling the essential functions of the job. Plaintiff challenged Union Pacific’s policy of removing employees from the job based on an arbitrary and scientifically unsound 1% rule regarding the risk of sudden incapacitation. Dr. Holland, the physician making the decisions in Olympia Washington, admitted that Union Pacific applied a uniform threshold risk level by considering any condition with the risk for a sudden impact event of greater than 1% in the coming year to require restrictions from work. That is, non-acceptable risk meant an absolute current risk of sudden incapacitation greater than 1% annual recurrence rate in the coming year.

Plaintiffs brought a class action alleging: 1) disparate treatment; 2) disparate impact; and 3) unlawful medical inquiry in violation of 42 U.S.C. §12112(d)(4)(A). The proposed class encompassed, “individuals who were removed from service over their objection, and/or suffered another adverse employment action, during their employment with Union Pacific for reasons related to a fitness for duty evaluation at any time from 300 days before the earliest date that a named plaintiff filed an administrative charge of discrimination to the resolution of this action.

II

Court’s Reasoning Allowing the Class Action to Proceed

  1. The four basic requirements of a class action under Rule 23(a) are: 1) numerosity; 2) commonality; 3) typicality; and 4) adequacy of representation. Further, one of the following §§ of Rule 23(b) must also be met: 1) a risk of inconsistent adjudication or impairment of interest for non-class members exists; 2) the defendant’s conduct apply generally to the whole class; or 3) questions of law or fact common to members of the class predominate in the class action is a superior method for adjudication. Finally, Rule 23 requires any certification of the class to have in its order the appointment of class counsel.

Numerosity

  1. Regarding numerosity, no magic number proving numerosity exists, but courts have stated that a class of 40 works. Here, the plaintiffs have presented evidence of potentially 7000 class members. While Union Pacific disputes the exact number, it does not dispute that plaintiffs meet the numerosity requirement.

Commonality

  1. Regarding commonality, commonality is satisfied when the legal question linking the class members is substantially related to the resolution of the litigation.
  2. Commonality requirement imposes a very light burden on a plaintiff seeking to certify a class and is easily satisfied.
  3. The key to commonality is focusing on the capacity of a classwide proceeding to generate common answers apt to drive the resolution of litigation. The similarities within the proposed class are what have the potential to impede the generation of common answers.
  4. The court finds commonality exists for several reasons: 1) the fitness for duty policies and reportable health events are uniformly carried out nationwide by the same group of decision-makers, i.e. Dr. Holland and his team of doctors and nurses; 2) 75% of Union Pacific’s 40,000+ employees are considered working in these positions and therefore, are subject to reportable health events policy; 3) each employee has to undergo an evaluation; 4) medical records are obtained on each of those employees, and the employees are not physically examined by Dr. Holland or his team; 5) the doctor merely looks at the employee’s medical records, references materials for the suspected condition or diagnosis, and decides whether the employee poses a greater than 1% risk of sudden incapacitation within the next year; 6) where appropriate, work restrictions are implemented, and in most cases, those broad restrictions make it impossible for the employee to continue working; and 7) proof will be the same regarding systemic disability discrimination, operating procedures and policies, and the affirmative defenses (direct threat and business necessity).

Typicality

  1. Regarding typicality, the court found the claims and defenses are typical of the class for a variety of reasons: 1) all complaints alleged discrimination; 2) all complaints involve the exact same policy; 3) most of the employees allegedly are either discharged or constructively discharged by the 1% rule; 3) the regulations and fitness for duty policies have led to dismissal or significant restrictions on the employees; 4) of the 7000 Union Pacific employees having to report a health event under the policy, it appears that at least 3145 of them were not cleared for work or were issued work restrictions; 5) for those with a “critical diagnosis,” those employees were not cleared for work or given very high levels of work restrictions; and 6) workers were often given long-term restrictions that lasted hundreds of days if not years.

Adequacy of Representation

  1. Regarding the adequacy of representation, plaintiff’s interests do not diverge or are opposed to the rest of the class, and counsel would adequately represent the class members as they are experienced and competent to lead the case.

Rule 23(b)(3)

  1. For class certification, plaintiffs also must prove one of the requirements of Rule 23(b). In this case, the rule involved is Rule 23(b)(3), which necessitates a finding by the court that questions of law or fact common to class member predominate over any questions affecting only individual members, and that a class action is superior to other available method for fairly and efficiently adjudicating the controversy.
  2. With respect to predominance, common issues have to constitute a significant part of any individual cases. Another way to look at it is that where there is an essential factual link between all class members and the defendants for which the law provides a remedy, questions of law or fact common to the class exists.
  3. The proposed class is sufficiently cohesive as it involves an alleged pattern of employee decision-making with respect to the class even more so than with respect to the individuals. Finally, the same evidence will be used to establish class wide proof.
  4. In a footnote, the court noted that the plaintiffs identified their support for the pattern or practice liability, which included: 1) a uniform, written reportable health event policy; 2) uniform implementation of that policy by a small group of decision-makers guided by standardized policies and practices; 3) evidence that the policy is invalid because among other things it is based upon incorrect generalizations about the risk of sudden incapacitation posed by certain health condition, including a scientifically unsound 1% rule and inapplicable material governing commercial truck drivers; 4) internal documents showing that the company was aware of the discriminatory intent and outcomes of its policy; 5) numerous specific instances of discrimination suffered by class members; and 6) data showing a pattern of thousands of workers suffering adverse outcomes as a result of Union Pacific’s policy.
  5. With respect to superiority, the question is whether the adjudication of common issues helps achieve judicial economy. The court found this satisfied because common question regarding the proposed class, including a pattern and practice of discrimination and the viability of Union Pacific’s affirmative defenses exist. Much of the case relies on common proof. So, to allow individual lawsuits would duplicate that proof over and over again.
  6. In the Eighth Circuit, a class must be adequately defined and clearly ascertainable. That is the case here because the case involves a single, uniform reportable events policy. The Eighth Circuit has not joined the Third Circuit in requiring an additional requirement of administrative feasibility of the class. In any event, the administrative feasibility requirement doesn’t make sense when you have a pattern of discriminatory decision-making, i.e. a pattern or practice case.

Court’s Way Forward

  1. With respect to how the case proceeds in the future, the court set up a two-part process. First, the parties litigate liability and injunctive relief in phase 1. Then, in phase 2, parties litigate damages and other remaining issues through individual hearings, or group hearings as appropriate, or by stipulations of the parties.

III

Takeaways

  1. You have to figure that this case is going to settle. We have discussed direct threat many times, such as here, here, and here, and it’s hard for me to believe that such a policy could even remotely come close to meeting the direct threat standard. Also, we have discussed job-related and consistent with business necessity several times as well, such as here. Hard for me to believe that these exams would job-related and consistent with business necessity.
  2. One wonders about how the policy came into being. Hard to believe that knowledgeable ADA counsel would not have spotted the issues with respect to how it screens out persons with disabilities (title I, II, and III all have provisions in them prohibiting policies and procedures that screen out persons with disabilities). It would be interesting to know if the policy was reviewed by in-house or outside legal counsel before implementation as that might create malpractice issues. It is also entirely possible that legal pointed out the difficulties and the client went ahead and did it anyway. That does happen. As mentioned above, the court in a footnote, said that the company was made aware of the discriminatory impact of the policy.
  3. The policy is so draconian that in my opinion, the regarded as prong is also activated.
  4. The ADA requires an individual analysis and an interactive process, both of which are missing in this case.
  5. Interesting discussion about pattern or practice since it is the EEOC that brings such actions. You generally don’t think of a pattern or practice with regards to private litigants. That said, you certainly have screen out issues going on here, which as a de facto matter when combined with the policy amounts to something very similar.
  6. Check your jurisdiction as to whether it adopts an additional administrative feasibility rule when it comes to class actions.
  7. Ignoring relevant medical evidence is never a good idea.
  8. Considering how hard it is to find labor nowadays, one wonders about the business sense of Union Pacific’s policy.
  9. Many of the employees worked for years with no problems. So, if it ain’t broke, don’t fix it.
  10. Commonality is not a difficult requirement to satisfy.
  11. For the reasons discussed in this blog entry, I can’t imagine an appeal being successful.

I hope everyone had fun with the Super Bowl yesterday. It was the lowest scoring Super Bowl by five points in the history of all Super Bowl’s. It beat the record set by the Miami Dolphins when they beat the Washington Redskins in 1972 to go undefeated. What is particularly mind-boggling is that the rules have changed in a big way since 1972 to emphasize passing and scoring, and yet the game was the lowest scoring in history. The 72 Dolphins featured a very balanced attack (Warfield, Griese, Csonka, Kiick), and an incredible defense (Buaniconti etc), but the rules were so different. It is incredible that a game played in 2019 would somehow beat that record.

Turning to the blog entry of the day, we discuss a published decision from the Fourth Circuit had been making its rounds on the Internet. The case is EEOC v. McLeod Health Inc. decided on January 31, 2019. It bears talking about because it is pretty progressive in much of its thinking. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning; and a big takeaways section. Of course, the reader is free to focus on any or all of the categories.

I

Facts

For 28 years, plaintiff worked for McLeod Health Inc., which operates various hospitals and other healthcare facilities in South Carolina. Her job was the editor of McLeod’s internal employee newsletter. Her responsibilities included interviewing other employees and writing about company events. Accordingly, plaintiff typically traveled among McLeod’s various campuses, which are now five in number and spread across an area of 100 miles. Plaintiff has a physical disability known as posttaxial hypoplasia of the lower extremity. As a result, she does not have certain bones in her legs, feet, and right hand. Her lower legs are shorter than normal and her right arm is shorter than her left arm. Therefore, she has always struggled with mobility. Falling has always been part of her life and there’s no way around it. While she has had surgery to increase her stability, her limited use of her feet and legs still cause her to fall sometimes and stumble sometimes. Also, that condition causes her to get tired more easily and make it difficult for her to sit or stand in one position for too long.

Despite her limited mobility, plaintiff satisfactorily performed her duties as editor of McLeod’s employee newsletter for almost 30 years. While records indicated that plaintiff fell at work multiple times before the events involved in this case, McLeod’s own words said that her condition did not impact her ability to perform the essential functions of her job during her employment.

Over the course of several months preceding the event giving rise to this case, plaintiff’s manager repeatedly expressed concerns about plaintiff’s performance to McLeod’s Human Resources Department. She told HR that plaintiff had been missing deadlines, arriving late to work, and in her view, displaying a less than enthusiastic attitude about McLeod’s internal messaging. In her discussion with HR, plaintiff’s manager raised the possibility that plaintiff performance issues were due to problems with her health, such as plaintiff looked like walking was more difficult for her than usual and that plaintiff appeared flushed and winded after moving very short distances. Plaintiff’s supervisor also reported that plaintiff seemed to have trouble staying alert during meetings. At HR’s suggestion, plaintiff’s manager attempted to address plaintiff’s performance issues by meeting with plaintiff, clarifying her expectations, and reducing plaintiff’s workload. However, she did not raise any concerns about plaintiff’s health with the plaintiff herself.

In 2012, plaintiff fell 3 times in a four months span. Plaintiff’s manager reported plaintiff’s third fall to HR shortly after it happened. HR advised her to bring her concern to the company’s occupational health department and plaintiff’s manager did so right away. Based upon that report, plaintiff’s job description, and its own records of plaintiff’s medical issues, occupational health determine that the plaintiff needed to undergo a fitness for duty medical exam. Even so, occupational health was not particularly concerned with plaintiff’s performance on the job. It ordered the fitness for duty exam to ensure that the plaintiff could safely get to different locations in order to do her stories.

At occupational health, a nurse practitioner gave plaintiff a fitness for duty exam. During that exam, plaintiff told the nurse practitioner about her medical history and the circumstances of her recent falls. Plaintiff also told the nurse practitioner that she had difficulty stepping on the curbs and that she was supposed to, but generally did not, use a cane network. The nurse practitioner listen to plaintiff’s heart and lungs and also examined her joints. Her conclusion was that plaintiff needed further testing by undergoing a functional capacity exam. A functional capacity exam is an exam where position evaluate whether an employee is physically capable of performing the duties of her job. The nurse practitioner based that conclusion on: 1) plaintiff’s self-reported history of falls; 2) her decision not to use her recommended assistive device; and 3) for general lack of mobility and range of motion in her knees, ankles, and feet.

McLeod placed the plaintiff on paid administrative leave pending the results of her functional capacity exam. Functional capacity exam was performed by an occupational therapist who did not have access to plaintiff in order to clarify her job duties prior to the exam. While McLeod told the occupational therapist that her job required her to carry no more than 20 pounds at a time, the occupational therapist determined that the plaintiff would likely need to be able to carry 38 pounds at a time to do her job and tested her accordingly. His exam also indicated, inaccurately so, that he believed that the plaintiff had only recently begun to fall at work and in her home.

The occupational therapist concluded that plaintiff had a high fall risk and 75% of all work-related task and recommended that plaintiff among other things: 1) be restricted to traveling no more than 10 miles from her main office; 2) using assistive device, such as a motorized scooter; and 3) be provided a parking space in an area without a curb. Plaintiff in turn submitted a request for: 1) a parking spot in an area without a curb; 2) help with selecting an appropriate assistive device; 3) a new desk chair with adjustable height arms; and 4) limitations on walking and standing as much as possible. Plaintiff did not believe she needed any accommodation to continue doing her job, but thought that she was required to submit the accommodation form.

Though plaintiff was told several times that she could submit report from her own doctors if she disagreed with the occupational therapist conclusions, she was also told at least once that she could not have her old job back. She also did not submit reports from her own doctor to refute the occupational therapist conclusions. For that matter, she did not apply for other jobs available within McLeod even though the company assigned her a recruiter to help find her suitable positions. The plaintiff did find some open positions for which she was marginally qualified, but they paid significantly less than what she had made in her old job. After plaintiff had been on medical leave for six months, McLeod terminated her employment. Plaintiff then filed a complaint with the EEOC, and the EEOC brought suit against McLeod for violations of the ADA by: 1) requiring the plaintiff to undergo a medical exam despite a lack of objective evidence that such an exam with necessary; and 2) discharging plaintiff on the basis of her disability.

II

Court’s Reasoning

  1. The court in a footnote called befuddling the occupational therapist’s conclusion that plaintiff had a high fall risk for 75% of all work-related tasks. In particular, when the occupational therapist was asked how the 75% figure was formulated, he answered, “she had fallen at home, at restaurants, and at work. One, two, three. 75%.”
  2. Medical exams can only be done on an employee when it is job-related and consistent with business necessity per 42 U.S.C. §12112(d)(4)(A).
  3. The EEOC’s enforcement guidelines state that for an employer ordered medical exam to be job-related and consistent with business necessity, the employer must reasonably believe based upon objective evidence either: 1) the employee’s ability to perform the essential job function is impaired by a medical condition; or 2) the employee can perform all the essential functions of the job, but because of his or her medical condition, doing so would pose a direct threat to his or her safety or the safety of others.
  4. The threshold question is whether navigating to and within McLeod’s campuses was an essential function of plaintiff’s job.
  5. In a footnote, the court said that the correct way to apply the EEOC’s enforcement guidance in a case like this, is to begin by asking whether the relevant job function qualifies as essential. If the answer to that question is yes, then you have to ask whether the employee is medically capable of performing the function without posing a direct threat to herself or others, i.e. whether the employee can perform the function safely.
  6. There is evidence in the record supporting McLeod’s position. For example, plaintiff’s manager testified that plaintiff’s job required her to navigate to and from company events and conduct in person interviews. Additionally, plaintiff agreed in deposition testimony that her job required the ability to safely navigate marketing department functions, including but not limited to navigating outside parking lots, grassy areas, and walking in a wide variety of areas in order to obtain photographs and interviews.
  7. The record also contained evidence supporting the EEOC’s position. In particular: 1) although plaintiff preferred to navigate McLeod’s various campuses to conduct in-person interviews, take photographs, and attend company events, doing so was not actually essential to her job; 2) McLeod’s own written description of plaintiff’s position contained no mention of navigating to and from company events or conducting in-person interviews; 3) plaintiff testified that although she collected better content by attending company events and conducting in-person interviews, she didn’t think that either was necessarily a requirement for her job; 4) plaintiff was able to conduct interviews and collect other forms of content over the phone.
  8. To get past summary judgment, all the EEOC has to offer is more than a mere scintilla of evidence in support of its position that navigating to and within McLeod’s campuses was not an essential function of plaintiff’s job and that burden was met.
  9. A reasonable jury could conclude that when McLeod required plaintiff to take a medical exam, the company lacked a reasonable belief-based on objective evidence-that plaintiff’s medical condition left her unable to navigate within the company’s campuses without posing a direct threat to her own safety.
  10. An employer’s reasonable belief that an employee cannot perform the essential function or cannot do so without posing a direct threat has to be based on objective evidence obtained or reasonably available to the employer prior to making a disability related inquiry or requiring a medical examination. At that point in time, McLeod knew that plaintiff had been able to perform the essential function of her job for 28 years even though she suffered from limited mobility and sometimes fell at work. It also knew that she had fallen once at work and twice outside of work with the fall at work causing virtually no injury and the falls outside of work not causing any severe injury. The other item McLeod had had reported to it was that plaintiff had recently missed deadlines, was showing up late, and struggled to handle her workload. Also, plaintiff’s manager thought that plaintiff looked unusually winded after walking short distances and appear groggy during meetings. Accordingly, a reasonable jury looking at the evidence in the light most favorable to the plaintiff could conclude that in the context of plaintiff’s employment history, it was not reasonable for McLeod to believe that she had become a direct threat to herself on the job simply because she had fallen multiple times recently and her manager thought she looked groggy and out of breath. This is especially the case given that only one of plaintiff’s recent falls occurred at work resulting in virtually no injury.
  11. With respect to a wrongful discharge claim under the ADA, a plaintiff has to prove: 1) that she has a disability; 2) that she is a qualified individual for the employment in question; and 3) that her employer discharged her because of her disability.
  12. A qualified individual is an individual who with or without reasonable accommodation can perform the essential functions of the employment position the individual holds or desires. Since it is not certain that navigating to and within McLeod’s campuses was essential to plaintiff’s job, it can’t be said that there aren’t questions of fact regarding the wrongful termination.

III

Takeaways:

  1. It really seems to depend upon the court as to how they view summary judgment motions. Summary judgment motions happen all the time in federal practice with respect to disability discrimination, with their success or not seeming to depend upon the jurisdiction. Some courts seem to think summary judgment motions act as a screen out for all but the strongest cases for plaintiffs. While other courts seem to focus much more on whether critical facts that can send the case the plaintiff’s way are in dispute. Of course, there is a range between the two extremes.
  2. There seems to have been a real lack of communication between HR, plaintiff’s manager, and the plaintiff. Reading between the lines, it seems that the plaintiff’s manager was making all kinds of assumptions about the plaintiff based upon what she was seeing. Happens all the time with people with disabilities. Instead of doing that, you want to focus on whether the essential functions of the job are being done with or without reasonable accommodations well. It seems a lot of problems could have been prevented here if the plaintiff’s manager, HR, and the plaintiff had communicated with each other.
  3. Interesting, the plaintiff not contesting McLeod’s actions was not held against her. Of course, that is the law, but even so, interesting.
  4. If you are going to do a medical exam on a current employee, make sure you first are doing so because it is job-related and consistent with business necessity. We discussed both of those concepts here.
  5. I have argued for years that direct threat and qualified are entirely two different concepts. It is heartening to finally be proven right. That is, the question of whether a person can do the essential functions of the job with or without reasonable accommodations (i.e. qualified), as this court points out, is an entirely different question than whether a person poses a direct threat to him or herself or to others.
  6. Essential functions of the job are based upon what is happening on the ground and not what is in job descriptions.
  7. Keep job descriptions current and accurate.
  8. This case is unusual with the statement saying that all the EEOC has to offer to survive summary judgment is offer more than a scintilla of evidence. That is not a high standard. Many jurisdictions in effect require far more than that.
  9. The decision to require a medical exam must be based upon objective evidence that the person cannot perform the essential functions of her job with or without reasonable accommodations or cannot do it safely. The reference point is the time the medical exam is requested.
  10. For a discussion of direct threat, see this blog entry. You can use the search engine in my blog to find others as we have discussed direct threat many times.
  11. Just because a person is suffering injuries outside of work does not necessarily make them a direct threat at work. In this case, it seems that the plaintiff because of her history knew how to protect herself when she fell.
  12. Never forget about the interactive process.
  13. Remember that qualified means can the person do the job’s essential function with or without reasonable accommodations. Also, if direct threat is involved, the question is can reasonable accommodations be made so that direct threat does not come up.
  14. If it ain’t broke, don’t fix it. I can’t tell you how many times I have seen in reviewing these kinds of cases where things are working perfectly fine, and the employer decides to fix it when it isn’t necessary to fix it.
  15. Make sure qualified people performed the fitness for duty exam and that they have all relevant information. That information also needs to be current. Finally, the exam itself needs to be narrowly focused. On the plaintiff side, plaintiff’s lawyer should strongly consider attending the fitness for duty exam. Just by sitting there and taking notes without saying a word can ensure that the exam stays narrowly focused and that the plaintiff is careful about what is said.
  16. It is not up to the medical professional to change the job’s essential functions.
  17. Remember, if you take federal funds and have more than 15 employees, you need an ADA/504 grievance procedure. If you do not take federal funds, are a public entity (see comments to this entry), and have 50 or more employees, you need an ADA grievance procedure. Regardless, grievance procedures are always a good idea.
  18. The question isn’t whether the employee was discharged because of a disability, but whether the employee was discharged on the basis of disability. That distinction matters as we discussed in this blog entry.

Before proceeding with today’s blog entry, I do want to express my wishes that everyone be safe with the terribly cold weather around the country today. My native city of Chicago is brutally cold today. Be safe and stay warm!

Previously, I have talked about internship and externship sites being subject to the ADA here, and I have also talked about (in this blog entry and in this blog entry), just where does an independent contractor turn when faced with disability discrimination. Today’s blog entry talks about how the internship and externship site is at risk for liability when they don’t accommodate a person with a disability that is interning or externing at their site. The case is Christ v. University of Findlay et. al. from the Southern District of Ohio decided August 31, 2018. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning denying Ultimate’s motion to dismiss title III claim but dismissing Ohio Civil Rights Act claim; and takeaways. The blog entry is pretty short. So, you are probably going to want to read the whole thing.

I

Facts

Plaintiff enrolled at the University to obtain a Master of Arts degree in occupational therapy. In October 2013, plaintiff informed the University’s disability office of her disability which included generalized social anxiety disorder, ADHD, and auditory processing disorder. She disclosed her disability to the chair of occupational therapy and to the instructor of occupational therapy and academic fieldwork coordinator. The University then granted her extra time learning accommodations to complete assessments. By November 2015, plaintiff had completed the degree’s classroom requirement successfully. The University’s internal policies mandate that a student complete all field placements within two years of their classroom component. Further, any student who failed two level II placements is removed from the program. Following the completion of her first level II placement, plaintiff began to encounter difficulty with her next two field assignments. She confided in the instructor of occupational therapy and academic fieldwork coordinator that her field assignment was aggravating her anxiety by manifesting itself in the form of hand tremors. The fieldwork coordinator counseled the plaintiff NOT to discuss her anxiety with her fellow placement employees. Plaintiff Ultimately failed that placement. Six months later, the University assigned the plaintiff to another level II field placement with the defendant Ultimate Rehab. Allegedly, the fieldwork coordinator provided Ultimate Rehab a copy of plaintiff’s accommodations. Further, plaintiff also disclosed her accommodations to her assigned coworker at Ultimate and was told allegedly that Ultimate would have no problem integrating the accommodations into her experience. However, that proved not to be the case. Plaintiff alleged that Ultimate failed to ensure that the accommodations were implemented. As a result, Ultimate informed the plaintiff that she could no longer meet with patients and was being dismissed due to her alleged failure to follow safety protocols. That triggered a failure of a second level II field placement work and caused the plaintiff to be dismissed from the program. Plaintiff sued under both title III of the ADA and under the Ohio Civil Rights Act for employment discrimination. Ultimate filed a motion to dismiss.

II

Court’s Reasoning Denying Ultimate’s Motion to Dismiss’s Motion to Dismiss Title III Claim but Dismissing Ohio Civil Rights Act Claim

  1. Title III at 42 U.S.C. §12182(a) contains a general rule prohibiting discrimination on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person owning, leasing, or operating a place of public accommodation. That is a general rule that governs the entirety of 42 U.S.C. §12182.
  2. It is true that 42 U.S.C. §12182(b) has rules of construction and the first three of those rules of construction are limited to clients or customers of a place of public accommodation entering into contractual, licensing, or other arrangements. However, none of that affects the general rule.
  3. The court noted, in the case we discussed in this blog entry, that Mentkowitz held both the language of title III and its legislative history clearly demonstrate that the phrase “clients or customers,” is not a general circumspection of title III and does not serve to limit the broad rule announced in 42 U.S.C. §12182(a). That court also noted that the general rule in title III does not speak in terms of guests, patrons, clients, customers, or members of the public. Rather, it broadly uses the word, “individual.” District Courts in Ohio have agreed with this interpretation.
  4. With respect to the Ohio Civil Rights Act employment claim, the court dismisses it because the plaintiff is unable to establish that an employment relationship existed.

III

Takeaways

  1. While we have previously discussed internship and externship sites being subject to the ADA, this case is a much more direct situation with regards to someone interning externing at a particular site.
  2. If you are a business allowing interns and extern to work for you for University credits at your business, you definitely need to be thinking about accommodating any extern or intern with a disability. While it is entirely possible that title I of the ADA would not be involved, title III, as this case makes clear, very well is. I would suggest working with the University to make sure that you understand just what the disabilities are and how the University is accommodating them. Also, engage in the interactive process with the individual intern or extern. In many ways, none of this should be much different than what an employer would have to do under title I of the ADA. That said, having been a paralegal coordinator for an ABA approved program, I can tell you that it was not unusual for an internship or an externship site to have less than 15 employees. Accordingly, unless an equivalent state law is involved, that particular site may not be as up to speed on the obligations under title I of the ADA as they could be. So, those places in particular, need to be very much aware that even though they have less than 15 employees, they are still dealing with title III obligations, which would have a very similar effect on the intern or extern as if they were subject to title I of the ADA.
  3. As mentioned in this blog entry, the University may have its own liability under the ADA when an internship or externship site goes wrong for a person with a disability.
  4. Training, training, training (I do a lot of this:-)).
  5. I see this frequently where a student with a disability does well in the classroom section of graduate training, but things break down at the clinical stage. The ADA obligations continue through the clinical stage. The interactive process is critical. What makes things even more complicated is that sometimes, particularly in the medical field, getting through the University curriculum is dependent upon tests, and the University has no control over whether that independent entity makes the accommodation they are supposed to make under the ADA.
  6. Know your essential eligibility requirements. See this blog entry.
  7. It was not the best choice for the fieldwork coordinator to counsel that a disability not be disclosed to the internship site. Early disclosure is always best. I wonder if this will not be an independent basis of liability for an ADA violation against the University.