As promised, this week I am putting up the 2018 understanding the ADA greatest hits blog entry. It was a great year for the blog making the ABA 100 for the fifth year in a row. Simply wouldn’t do this and couldn’t do this without the great readers here. The only thing I will say is please don’t be afraid to comment. We don’t get a lot of comments, but when we do, they really add to the understanding of the blog entry in all its complexity.

Two blog entries that are always there because I feel they are very very important even if they do not make the greatest hits are: 1) ADA compliance auditing: higher education version; and 2) Whether the ADA is a nondelegable duty.

 

The greatest hits for 2018:

In reverse order, they are:

  1. New to the list this year and with 794 hits, service dog and emotional support animals with respect to employment.
  2. With 802 hits, service dog v. therapy dogs.
  3. New to the list this year and with 856 hits, where does an independent contractor turn when he or she suffers disability discrimination.
  4. With 1021 hits, just when does the statute of limitation BEGIN to run in a failure to accommodate case.
  5. New to the list this year with 1049 hits, why all colleges need to do the two-step with respect to determining essential eligibility requirements of their program.
  6. With 1240 hits, suing a state court system is complex but can be done.
  7. With 1393 hits, what does it mean to exhaust administrative remedies.
  8. New to the list this year and with 1437 hits, just what is a private club.
  9. With 2023 hits, what do you have to show to get compensatory damages and title II cases.
  10. With 2130 hits, the ADA and the applicable statute of limitations.
  11. With 2674 hits, ADA and ADA related cases at the Supreme Court.
  12. The number one blog entry and consistently so over the years with 2887 hits, can you get compensatory and punitive damages in retaliation cases. This blog entry is consistently number one year in and year out, though for this year, the ADA related cases at the Supreme Court blog entry came in a close second by just 200 hits. In the past, this particular blog entry has had doubled the amount of hits of the second-place entry.

Happy holidays and happy new year to everyone!

Today’s blog entry will be the last substantive blog entry of the year. Next week, is the annual Understanding the ADA greatest hits for 2018. This week’s case deals with the question of what happens when you have both a failure to accommodate and a lack of adverse action. Is the plaintiff out of luck? The case of the day is Exby-Stolley v. Board of County Commissioners, Weld County, Colorado. It came down from the 10th Circuit on October 11, 2018. As usual, the blog entry is divided into categories and they are: facts; majority opinion; dissenting opinion; and takeaways. The reader is free to focus on any or all of the sections.

I

Facts

The facts are pretty straightforward and are covered in great detail in the opinion. Basically, you have a person that broke her right arm on the job leading to two surgeries. That led to an interactive process that did not satisfy the plaintiff and perhaps miscommunication as well. Instead of pursuing the interactive process to the end, plaintiff resigned. Nevertheless, plaintiff brought suit alleging violations of the ADA. At trial, the jury found that the plaintiff had a disability, but also found that the plaintiff had not proven by a preponderance of the evidence that she was discharged from employment. That is, the jury bought the county’s argument that the placement of plaintiff on temporary half-time office duty was not an adverse employment action because she fully agreed with the change, and there was no reduction in pay since the reduction was offset by workers compensation payment. Also, the county took no later action against her because she voluntarily resigned.

II

Majority Reasoning

  1. An adverse employment action is an element of a failure to accommodate claim.
  2. 42 U.S.C. §12112(a) says a covered entity cannot discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, condition, and probative of employment. So, any discrimination has to be in regards to certain features of employment.
  3. While the language adverse employment action does not appear in the ADA, the terminology is well established in judicial opinions when it comes to the Civil Rights Act of 1964, which has a very similar provision with respect to its antidiscrimination clause.
  4. An adverse employment action is one that materially affects the compensation, terms, condition, or privileges of employment.
  5. In a footnote, the court said that “terms and conditions,” appearing in the ADA’s statutory provisions is very significant because it was the lack of that language that led the United States Supreme Court to say a retaliation claim could be based upon any action, whether or not significant to the employee’s job, that a reasonable employee would have found to be materially adverse.
  6. The failure to accommodate statutory provision doesn’t change the terms and conditions requirement. Rather, it just sets forth that an employee does not have to show she was treated worse than a person without a disability when he or she brings a failure to accommodate claim. That is, even after proof of the failure to accommodate, the requirement that discrimination be in regard to job application procedures or other terms, condition, or privileges of employment remains.
  7. For those who don’t believe an adverse employment action is required for a failure to accommodate claim, they may be just getting confused by the McDonnell Douglas burden shifting framework, which has to be modified in order to apply to failure to accommodate claims.
  8. Since McDonnell Douglas can only apply to discriminatory failure to hire, courts have modified the test to other circumstances by saying that the employer took an adverse employment action.
  9. While proving a failure to accommodate claim does not involve showing a person with a disability is treated worse than a person without a disability, that hardly means none of the requirements set forth in McDonnell Douglas apply to failure to accommodate claims. That is, McDonnell Douglas enables the plaintiff to prove her claim in its entirety, not just that she was treated worse than people not in her protected class.
  10. The reason to require that the discriminatory act involves an adverse employment action is because not every discriminatory act by an employer entitles an employee to a remedy under the employment discrimination statutes. The discriminatory act must be in regard to, or with respect to, the terms or conditions of employment. In fact, there could be a failure to accommodate that does not result in termination and is not otherwise connected to an adverse employment action. Mere inconvenience or an alteration of job responsibilities is not an adverse employment action.
  11. Once it is recognized that requiring an adverse employment action simply means requiring the discrimination be in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment, it necessarily follows that the requirement applies to every discrimination claim under the ADA, including failure to accommodate claims. Cases cited by the dissent to the contrary are dicta.
  12. Several Circuits have explicitly required an adverse employment action in failure to accommodate cases (1st, 2d Cir., 7th Cir., 8th Cir., and 9th Cir.).
  13. In a footnote, the court said that it is unlikely an employee would pursue a failure to accommodate claim when there is no adverse employment action.

III

Dissenting Opinion by Judge Holmes

  1. It was reversible error for the judge to instruct the jury that an adverse employment action element is required for failure to accommodate claims under the ADA.
  2. The cases the majority said are dicta are not dicta at all.
  3. The 10th Circuit has previously distinguished between ADA discrimination claims based upon a disparate treatment theory and those based upon a failure to accommodate theory making clear the content and structure of its analysis that it is only the disparate treatment theory that includes an adverse employment action element. The court’s disregard of an adverse employment action in that case was intentional because an adverse employment action was irrelevant in applying the standards defining whether an employer had met its reasonable accommodation obligations.
  4. The majority’s confusion stems from its failure to clearly differentiate between disparate treatment and failure to accommodate claims with the former requiring an adverse action showing, but not the latter.
  5. In a failure to accommodate case, the purpose of the plaintiff’s prima facie case is not to raise a rebuttable presumption of discriminatory intent, but rather to determine the factual question of whether the employer complied with the statutory obligations to provide reasonable accommodation.
  6. Any failure to provide reasonable accommodation for a disability is necessarily because of a disability. That is, the accommodations are only deemed reasonable if they are needed because of the disability and no proof of particular discriminatory intent is necessary.
  7. In a footnote, the dissenting judge said that the EEOC in its regulations and interpretive guidance on the ADA also suggests that an adverse employment action is not an element of failure to accommodate claim. In particular, it says that once the plaintiff has shown the accommodation he or she needs is reasonable, the burden shifts to the defendant to provide case specific evidence proving the reasonable accommodation would cause an undue hardship. Nowhere in that language is there any adverse action requirement.
  8. Congress has already determined that a failure to offer reasonable accommodation to a qualified employee with a disability is unlawful discrimination.
  9. In a footnote, the dissent said that it doesn’t make a lot of sense that federal judges would cavalierly tolerate the serious risks going with omitting an essential element of a claim from their decisions as that would mislead the public and the lower courts regarding the state of the relevant ADA law. Instead, the dissent believed that the omission of adverse employment action from the elements necessary for proving a failure to accommodate claim, was intentional. It defies logic to suggest otherwise.
  10. It doesn’t follow that the language in 42 U.S.C. §12112(a) pertaining to other terms, conditions, and privileges of employment is necessarily a shorthand for an adverse action requirement and case law is not to the contrary.

IV

Takeaways

  1. Reading this decision is very strange. The majority and the dissent reach opposite conclusions interpreting the same exact case law and the same exact statutory provisions. In my experience, you usually don’t see such a stark differentiation that way.
  2. I certainly look for a split to develop among the Circuits considering the ambiguity of case law and the statutory provisions. It would be very unclear as to what would happen at the United States Supreme Court with respect to the question of whether a failure to accommodate claim involves an adverse action. It is true that persons with disabilities have not fared well at the Supreme Court in employment matters, but a failure to accommodate may or may not resonate differently.
  3. It is not as unlikely as the majority seems to suggest that a failure to accommodate claim does not involve an adverse action. It happens more often than you would realize, especially if the employer has far thinking management counsel, and the employer is well trained on the rights of people with disabilities.
  4. I also don’t see how the language of “in regards to…,” necessarily requires an adverse action, particularly since adverse action is not the same thing as any action.
  5. If this decision prevails, plaintiff lawyers will have to get creative in their advocacy to show that a failure to accommodate a person with a disability has very serious consequences to the person with the disability and is certainly adverse. This means a plaintiff lawyer will have to educate the judge as to how the person with the disability perceives what happens in a failure to accommodate case and how the consequences of failing to accommodate are very real indeed.
  6. It will be also interesting to see how other courts deal with the issue of many Court leaving off an adverse employment action from their listing of what is required in the prima facie case approving a failure to accommodate claim. The majority passes that off as dicta, while the dissent views those omissions as critical.
  7. For plaintiffs, education about the mindset of a person with a disability is going to be absolutely critical. If you are on the defense side, this case gives you lots of leeway to make sure that a plaintiff with a disability continues in the same way as they are in their current employment in some manner or another until the interactive process is fully completed.
  8. This case could have been handled completely differently by the court. That is, instead of focusing on adverse action, the court could have found that the plaintiff was responsible for the breakdown in the interactive process by resigning and therefore, the defendant prevails.
  9. For a case involving a failure to accommodate where adverse action is never mentioned and certainly seem to not be part of the equation, we have already talked about one, Silva v. Baptist Health South Florida Inc., which we discussed in this blog entry.

 

Before getting started on the blog of the week, I want to express my condolences to the Bush family on the passing of George H.W. Bush. He signed the Americans With Disabilities Act on June 26 of 1990. His son also has a powerful legacy in that regards as he signed the ADAAA. Simply put, for my ability to participate in the mainstream world as well as the specialty I have carved out for my legal career, I owe a great debt to both of them. In keeping with their legacy, I was incredibly moved that H.W.’s service dog was front and center in the papers. G-D speed H.W. May H.W. rest in peace.

Today’s case will revolutionize the consequences for what happens when a nonfederal governmental entity, and possibly a federal governmental entity as well, discriminates on the basis of disability. As I have mentioned before, at least once a month, I get a call about a court system somewhere around the country discriminating against a person with a disability before it. Previously, I have written about two different cases involving suing court systems successfully for disability discrimination. A discussion of those cases can be found here and here.

The case of the day is a case from the Sixth Circuit decided September 25, 2018, Bullington v. Bedford County, Tennessee, which can be found here. As usual, the blog entry is divided into categories and they are: facts; opinion for the court; concurring opinion; and takeaways/thoughts. The reader is free to focus on any or all of the categories.

I

Facts

Bullington worked as a dispatcher at the Bedford County Sheriff’s Department for eight years. Sometime during that period, she developed Hodgkin’s lymphoma that was treated with chemotherapy. However, the chemotherapy caused neuropathy and scar tissue in her lungs so that she needed additional treatment. As a result of that diagnosis and treatment, she asserted the department treated her differently than the other employees. She filed suit alleging: violation of her constitutional rights under the 14th amendment to be free from discrimination and retaliation; violation of her constitutional rights because the County did not provide adequate supervision and training; violation of the Tennessee human rights act; and violation of the ADA. The defendant moved for judgment on the pleadings, which was granted by the District Court, and Bullington appealed.

II

Opinion for the Court

  1. Plaintiff admitted that she did not file a charge with the EEOC. Accordingly, she did not exhaust administrative remedies. Further, while she may have followed prior counsel’s advice on whether to file a charge with the EEOC, which was mistaken, that is not enough to allow for equitable tolling. Accordingly, the ADA claim has to be dismissed.
  2. Determining whether Congress precluded a remedy under §1983 turns on congressional intent.
  3. A distinction exists between §1983 claims premised on constitutional violations and those based on statutory violations in determining whether a §1983 claim is precluded.
  4. Where the contours of rights between the statutory claim and the constitutional protection diverge in significant ways, it is not likely that Congress intended to displace §1983 suits involving important constitutional rights.
  5. Both the Third and the Eighth Circuits have held that the ADA does preclude §1983 claims for violations of the ADA. Even so, that is not what is going on here. Rather, plaintiff alleges constitutional violations and not violations of the ADA itself. So, her claims are being brought under the 14th amendment’s equal protection clause and not under the ADA.
  6. Several Circuits have allowed constitutional claims to be brought under §1983 even where the plaintiff’s constitutional claims run parallel to claims brought under analogous statutes. Further, other courts have allowed plaintiffs to pursue claims under §1983 for disability discrimination even when they run parallel to ADA violations.
  7. The court looked to a Supreme Court case, Fitzgerald v. Barnstable School Committee 555 U.S. 246 (2009), holding that a §1983 claim for an equal protection violation was allowed to run parallel to a title IX claim. In reaching that decision, the Supreme Court look to title IX’s enforcement mechanism, the scope of title IX rights and 14th amendment rights, and to the context and history of title IX.
  8. Based upon Fitzgerald, there are three things to consider when examining congressional intent to preclude a constitutional claim, and they are the statute’s: text and history; remedial scheme; and the contours of its rights and protections.
  9. The burden of proving preclusion of a §1983 claim lies with the defendant.
  10. Neither the statutory text nor the legislative history of the ADA contains a clear indication of congressional intent to preclude simultaneous constitutional claims.
  11. 42 U.S.C. §12201(b) expressly provides that nothing in the ADA shall be construed to invalidate or limit remedies, rights, and procedures of any federal law or law of any State or political subdivision of any State or jurisdiction providing greater equal protection for the rights of individuals with disabilities than afforded by the ADA. Such language is strong evidence that Congress did not intend to preclude remedies under §1983 for constitutional violations.
  12. The Committee on Education and Labor’s report as well as the Committee on the Judiciary’s report both make clear that the ADA was not intended to preclude other remedies, including those of constitutional law.
  13. The ADA’s relation to title VII of the civil rights act also suggests that Congress did not intend to include alternative remedies for disability discrimination as the ADA uses the procedures set forth in title VII. That relationship is important because at the time Congress passed the ADA in 1990, courts frequently held that the comprehensive scheme provided in title VII does not preempt §1983, and that discrimination claims may be brought under either statute, or both.
  14. At the time Congress enacted the ADA, the Sixth Circuit had already allowed plaintiffs to bring parallel concurrent title VII and §1983 constitutional claims.
  15. Congress’s presumed familiarity with title VII case law and the numerous references to title VII within the ADA suggest that Congress could not have intended for the ADA to preclude a §1983 claim.
  16. With respect to title II of the ADA, it’s remedies are tied into title VI of the Civil Rights Act. Title VI of the Civil Rights Act as far back as 1967 was routinely interpreted to allow for parallel and concurrent §1983 claims.
  17. Where an employee establishes employer conduct violating both title VII and rights derived from another source, whether it be the Constitution or federal statutes existing at the time of the enactment of title VII, the claim based on the other sources are independent of the title VII claim.
  18. In 2012, the Sixth Circuit held that a §1983 claim regarding a constitutional violation could survive despite title VII.
  19. Where the contours of such rights and protections between the two laws diverge in significant ways, it is not likely that Congress intended to displace §1983 suits enforcing constitutional rights even where there is some overlap in coverage.
  20. Rights created by the ADA are strikingly different from those already protected by the equal protection clause as the stated purpose of the ADA as found in 42 U.S.C. §12101(b)(1)-(3) is: providing a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities; to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities; and to ensure that the federal government plays a central role in enforcing standards set forth in the ADA on behalf of individuals with disabilities.
  21. In addition to invoking its power under §5 of the 14th amendment, Congress also invoked a broad power under the commerce clause.
  22. The protections available under the ADA and the equal protection clause are critically different from each other. For a person to prove an ADA claim, the plaintiff has to show: that she was in a class of persons protected by the ADA; that she was otherwise qualified for the position; that she suffered an adverse employment action; that the employer knew or had reason to know of her disability; and that the adverse employment action occurred under circumstances raising a reasonable inference of unlawful discrimination.
  23. The equal protection clause requires a very different showing than the ADA. With respect to the equal protection clause, citing to Heller v. Doe, 509 U.S. 312 (1993), and to Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356 (2001), a plaintiff has to show that there was no rational basis for the State action to treat her differently because of her disability.
  24. Given the different requirements for proving the claim under the ADA and the equal protection clause, it makes sense that even if the comprehensive remedial scheme of the ADA somehow precluded utilizing §1983 to assert an ADA violation, the plaintiff still gets to assert a violation of the equal protection clause based on alleged disability discrimination through 1983.
  25. Since both the rights created by the ADA and the equal protection clause very significantly as do the elements required to prove both of those claims, that evidences a lack of congressional intent that the ADA precluded separate enforcement of individuals with disabilities constitutional rights.

III

Concurring Opinion of Judge Kethledge

  1. Extrinsic materials like legislative history have a role in statutory interpretation only to the extent they shed a reliable light on the enacting legislature’s understanding of otherwise ambiguous terms.
  2. Legislative history by itself has zero significance in statutory construction. Legislative history only matters to the extent it clarifies a specific ambiguity in the statutory text.
  3. Nothing in the text or structure of the ADA supports preclusion of a parallel constitutional claim. Accordingly, that is reason enough to hold that the ADA and constitutional claims can parallel each other. Therefore, referring to legislative history to justify that conclusion is completely unnecessary.

IV

Takeaway/Thoughts

  1. This case is absolutely huge with respect to the consequences of what happens when a State court engages in disability discrimination. Now, under this decision, a person with a disability has parallel tracks they can pursue (the ADA as well as procedural and substantive due process).
  2. Very interesting that the court cites to Heller and Board of Trustees of the University of Alabama for two reasons. First, as I have written in all of the Editions of my book, Understanding the ADA, which can be found here, in Heller, the United States Supreme Court assumed that persons with disabilities were in the rational basis class since both parties didn’t contest that. It is true that Board of Trustees of the University of Alabama said that persons with disabilities with respect to employment are in the rational basis class. However, Board of Trustees of the University of Alabama relied upon Heller, where a rational basis classification was assumed without argument, and upon Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985), which would be more appropriately classified as a rational basis plus classification. So, putting persons with disabilities in the rational basis class with respect to employment does not follow squarely from precedent.
  3. Regardless of persons with disabilities being classified in the rational basis class when it comes to employment not squarely following from precedent, it is now settled that persons with disabilities are in the rational basis class with respect to employment. However, that is simply not the case with respect to title II of the ADA. Under Tennessee v. Lane, 541 U.S. 509 (2004), which we discussed here, when it comes to accessing the courts, persons with disabilities are in a much higher classification than rational basis. Accordingly, that means rebutting an equal protection violation or a substantive due process violation under title II of the ADA means the State showing it had a compelling interest in the discrimination. Considering the ADA, that is going to be an almost impossible bar for the State to jump over.
  4. Since the equal protection clause and the substantive due process clause mirror each other, one wonders whether this decision cannot be used to address disability discrimination by a federal court, where it happens, even though the federal courts are not subject to the ADA.
  5. Will the courts split on this thereby leading to a U.S. Supreme Court decision? Hard to tell. However, the concurring opinion provides a way for the courts to avoid splitting, as any split would likely come from judges that frown on legislative history. It is possible, even if it is very unlikely, that the United States Supreme Court could decide to hear a matter without a split among the Circuits.
  6. Title I of the ADA requires exhaustion of administrative remedies, but keep in mind, that title II and title III of the ADA do not. When exhaustion is required is absolutely something the attorney has to know unless they want to be contacting their malpractice carrier.
  7. The concurring opinion believes that it was so clear that the ADA does not preclude equal protection claims that you don’t even have to look at legislative history. That is important because many people on the U.S. Supreme Court don’t like to look at legislative history unless they have to. That said, it is concerning that this is a title I case as persons with disabilities have not fared well at the Supreme Court level when it comes to disability discrimination in employment. I would feel more comfortable about a person with a disability chances at the Supreme Court over the issue of constitutional law and the ADA running in parallel to each other if this was a title II case.
  8. Failure to provide training on the ADA possibly could violate a person with a disability equal protection rights under this decision.
  9. The burden of showing preclusion is on the defense.

I am figuring on one more blog entry before our annual greatest hits issue. I have an entry in mind, but you never know what will come up.

Hope everyone had a great Thanksgiving. As many of you know by now if you are following me on LinkedIn, my blog was selected for inclusion in the ABA web 100 for 2018. This makes five years in a row for me. Since podcasts and twitter are part of the calculus now, the blog is actually one of the top 33! I wouldn’t do any of this if it wasn’t for my readers and their support. Thank you so much! Also, I encourage you to check out the entire web 100 as there are many excellent resources there. Finally, there are lots of good legal blogs out there, many of which are in my blog roll, that did not make the ABA web 100 for one reason or another. I encourage everyone to check out the blogs in my blog roll as I wouldn’t list them if they were not excellent.

 

In a previous blog entry, we talked about the case of Silva v. Baptist Health South Florida Inc. and how that case is a game changer for the culturally deaf. One of the beauties or frustrations of our system of jurisprudence is that the Circuits are free to go each way they want to go and it is up to the United States Supreme Court to resolve those differences. I thought it would be interesting to explore how a District Court within the Seventh Circuit approached the Silva scenario. Not surprisingly, it is quite a bit different than the 11th Circuit even if it is paying lip service to the 11th Circuit at the same time. The case is Juech v. Children’s Hospital Health System Inc. decided on November 2, 2018. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning; and takeaways. Of course, the reader is free to focus on any or all of the sections.

I

Facts (Taken from Opinion Itself)

Plaintiff Alissa Juech has been deaf since birth and communicates primarily through American Sign Language (ASL). (ECF No. 46, ¶ 1.) On the morning of February 5, 2015, Juech took her approximately 3-month-old son, B.J., to the emergency department of Children’s Hospital of Wisconsin. (ECF No. 46, ¶ 35.) Juech’s mother arrived at the hospital at roughly the same time, and Juech asked her to request the hospital provide her with a sign language interpreter. (ECF No. 46, ¶ 36.) Juech had been to Children’s Hospital roughly 10 times before and had requested a sign language interpreter on each of those prior visits. (ECF No. 46, ¶ 28.)

It is Children’s Hospital’s policy to provide interpreters upon request, and it informs patients and families of the availability of interpreters. (ECF No. 46, ¶¶ 17-19, 21.) It is the hospital’s policy to obtain an in-person interpreter if one is available. (ECF No. 46, ¶ 13.) If an in-person interpreter is not available, the hospital will provide a sign-language interpreter through video remote interpreting (VRI). (ECF No. 46, ¶ 22.)

Children’s Hospital initially used VRI—essentially a live web cam—to communicate with Juech and to obtain B.J.’s medical history and chief complaints. (ECF No. 46, ¶ 39.) According to Juech, hospital staff did not know how to set up or use the VRI. (ECF No. 51, ¶ 120.) According to Juech, “[t]he VRI device was rarely utilized during B.J.’s treatment because Children’s Hospital staff did not know how to set it up or use it.” (ECF No. 51, ¶ 121.) She alleges that “[t]he VRI device took several minutes to start up . . . [and] froze constantly.” (ECF No. 510, ¶ 121.) In one instance, Juech used the VRI device while breastfeeding her child, a task she found “exceedingly difficult . . . because she was forced to stand in order to see the machine and sign at the same time, all while holding her child.” (ECF No. 51, ¶ 127.) The hospital then used an in-person interpreter while B.J. continued to be treated in the emergency department; this interpreter also provided services after B.J. was moved to a nursing floor. (ECF No. 46, ¶ 43.) Hospital staff informed Juech that B.J. may have a respiratory virus and that he should stay overnight for observation. (ECF No. 46, ¶¶ 44-45.)

Later that evening Juech’s husband arrived at the hospital and the Jueches were informed that B.J. would be moved to the pediatric intensive care unit. (ECF No. 46, ¶ 50.) This discussion occurred with Juech using an interpreter through VRI, and her husband does not recall the VRI posing any difficulties or Juech having any questions or concerns that were left unresolved. (ECF No. 46, ¶¶ 50-51.)

At other points during B.J.’s hospitalization Juech communicated with medical providers in writing—for example, by way of messages typed on a phone and then shown to the recipient, or by handwritten notes. (ECF No. 46, ¶¶ 68-71.)

An in-person sign language interpreter was present when B.J. was discharged from the hospital on February 7, 2015. (ECF No. 46, ¶¶ 60-61.)

Two years later, in February of 2017, Juech returned to Children’s Hospital with her four-month-old daughter, A.J. (ECF No. 46, ¶ 76.) The hospital provided her with an interpreter through VRI. (ECF No. 46, ¶ 78.) Hospital staff obtained A.J.’s medical history from Juech, although Juech does not recall if it was done using the VRI. (ECF No. 46, ¶¶ 79-83.) A physician later obtained A.J.’s medical history from Juech by way of the VRI. (ECF No. 46, ¶ 92.) Although Juech does not recall how it was communicated to her, she understood that A.J. would be admitted to the hospital for observation. (ECF No. 46, ¶ 88.) Juech requested an in-person interpreter for the following day (ECF No. 46, ¶ 88), stating that the VRI does not work for her (ECF No. 46, ¶ 94) and that she preferred in-person interpreters for questions, rounds, and especially discharge instructions (ECF No. 46, ¶ 96). An in-person interpreter was provided at A.J.’s discharge. (ECF No. 46, ¶ 107.)

Juech brought this action alleging that Children’s Hospital and Health System, Inc. and Children’s Hospital of Wisconsin, Inc. (collectively, “defendants” or “Children’s Hospital”) violated the Americans with Disabilities Act (ADA), 42 U.S.C. §12181 et seq.; § 504 of the Rehabilitation Act of 1973 (RA), 29 U.S.C. § 794; Wis. Stat. § 106.52; and the Patient Protection and Affordable Care Act (ACA), 42 U.S.C. § 18116(a). (ECF No. 1; see also ECF No. 28 (amended complaint).) Specifically, Juech alleges that the defendants “failed to provide her with the auxiliary aids and services required to enable effective communication during the hospitalizations of her two infant children in Children’s facilities.” (ECF No. 45 at 1.)

II

Court’s Reasoning

  1. The court notes that a hospital is a place of public accommodation under 42 U.S.C. §12181(7)(F).
  2. The court cites to the ADA’s auxiliary aids and services section at 42 U.S.C. §12182(b)(2)(A)(iii) and the ADA’s final implementing regulations at 28 C.F.R. §36.303(a).
  3. The court cites to 28 C.F.R. §36.303(c)(1)(ii), which discusses that the type of auxiliary aids or services necessary to ensure effective communication varies: 1) by the method of communication used by the individual; 2) by the nature, length, and complexity of the communication involved; and 3) by the context in which the communication is taking place. That regulation goes on to say that the place of public accommodation should consult with individuals with disabilities whenever possible to determine what type of auxiliary aid is needed to ensure effective communication but the ultimate decision rests with the entity subject to title III of the ADA so long as that method results in effective communication.
  4. Citing to the case we discussed here, the court said that whether a particular aid is effective in affording a patient an equal opportunity to benefit from medical treatment depends on context, including the nature, significance, and complexity of the treatment.
  5. Citing to 28 C.F.R. §36.303(c)(3), a hospital cannot require a culturally deaf individual to provide his or her own interpreter, aside from emergencies or when requested by the culturally deaf individual, and cannot rely on a person accompanying the culturally deaf individual to serve as a translator.
  6. 28 C.F.R. §36.303(f) allows a place of public accommodation to use VRI services under certain circumstances.
  7. Rules for the Rehabilitation Act are very similar to the rules for the ADA.
  8. The court was not buying the defense argument that either the ADA or the Rehabilitation Act claim had to be dismissed because the claims were duplicative since the claims may not be at duplicative as they appear at first glance. For example, distinctions between the two laws do exist and it is also possible that one statute might afford relief not available under a related law. Finally, any concern that the pursuit of a similar claim could lead to impermissible duplicate to recovery can be addressed before trial or through appropriate jury instructions.
  9. Children’s Hospital did not have to provide the plaintiff with an interpreter at all times so long as it could provide effective alternative means of communicating with her.
  10. VRI is an acceptable auxiliary aid even in a medical context and written communication may be acceptable, especially for routine matters.
  11. A temporary failure or complication with the VRI does not amount to discrimination because technology is imperfect and the Department of Justice explicitly recognized that. Since it could be expected that it might take some time for an interpreter to arrive at a location needing his or her services, a delay in obtaining and starting up the VRI does not necessarily constitute discrimination.
  12. It is not discriminatory for a hospital to attempt to communicate through written notes only to find that the issue being discussed is to complex for written notes unless the hospital failed to provide an alternative auxiliary aid once it became clear that the initial method of communication was ineffective.
  13. Effective communication is a two-way exchange. That is, just because hospital personnel can get information from the patient does not establish that the patient can get information from the hospital.
  14. Silva holds that persons with disabilities are entitled to exchange all medically relevant information not merely information about primary symptoms, treatment plans, and discharge instructions.
  15. There is only one instance in the complaint where the plaintiff alleges the absence of an adequate auxiliary aid resulting in a lack of communication and whether that instance constitutes a denial of effective communication is not a question that can be appropriately resolved at summary judgment since effective communication matters are so fact intensive.
  16. VRI that consistently results in lags, choppy, blurry, or grainy images, or regular pauses and communication amounts to discrimination if it results in ineffective communication. That is, the VRI problems must be repeated and constant to violate the ADA’s effective communication requirements. Such a question is a question of fact.
  17. The court opts to follow the deliberate indifference standard set forth in the case we discussed here, but goes on to say that deliberate indifference is not present in this case. That is, the plaintiff testified at her deposition that the hospital staff tried to work with her to find solution to any problem she had communicating with them. At her deposition, plaintiff blamed the hospital and not the staff for her communication problems. The court stated: “But her assertion that hospital administration “did not want to pay for a live interpreter” appears to be based entirely on impermissible hearsay. She recounts: “I asked for a live in-person interpreter and they brought the VRI and I said please VRIng in a live interpreter again, and they said that the hospital will not be paying for a live interpreter, so that I had to use the VRI, and I was continuously fighting for that, that an interpreter in person would be there.” (ECF No. 47-1 at 11.) Asked how she knew this, she explained, “The nursing staff told my mother, and my mom interpreted to me and let me know that.” (ECF No. 47-1 at 11.) Although Juech characterizes her mother as interpreting what the nursing staff said, she acknowledges that the statement was made to her mother, not to her. But the court was not presented with any testimony from Juech or her mother as to whether her mother was actually interpreting—that is, relating verbatim something medical staff told Juech (which would not be hearsay)—or simply relaying to Juech what she heard, perhaps with her own inferences and characterizations, which would make the statement hearsay. And the fact that Juech’s mother is not fluent in sign language (ECF No. 47-1 at 18) certainly makes it less likely that the information Juech got from her mother was as a result of verbatim translation.” (Emphasis mine).
  18. Even if the hospital administration did require the use of VRI over an in person interpreter, that does not constitute deliberate indifference. Only if the hospital administrators were aware of the alleged problem with the VRI but demanded its use anyway could a reasonable finder of fact conclude that the defendants were deliberately indifferent, and the plaintiff did not present any evidence to support such a conclusion.
  19. No evidence exists that would allow a reasonable finder of fact to conclude that the staff members regarded the problems of anything other than isolated incidents.
  20. The simple failure to provide an interpreter on request is not necessarily deliberate indifference to an individual’s rights.
  21. With respect to standing, the fact that the plaintiff did return to Children’s Hospital during the pendency of the lawsuit tends to support plaintiff’s contention that she would return in the future. That said, even though there is a possibility based upon her past behavior that she will return to Children’s if her children need emergency medical care or hospitalization, that is not a sufficient real and immediate threat to give her standing for injunctive relief. No evidence existed that the plaintiff had any specific plans to return to Children’s Hospital emergency department or to have a child admitted to the hospital. That is, plaintiff offers only the barest speculation that she will have such a need.

III

Takeaways:

  1. This case cites to both Silva and to Liese, which we discussed here and here. However, it is not reasonable to believe that the District Court’s interpretation of these two cases is anything but a severe narrowing of the 11th Circuit decisions. Accordingly, if I am the plaintiff in this case, I would strongly consider an appeal. I realize that the Seventh Circuit of late has not been the friendliest jurisdiction for persons with disabilities. However, this decision severely narrows the 11th Circuit decisions making for a completely different legal parameter from what prevails in the 11th , which is definitely worth an appeal. Further, as I have mentioned numerous times before, the United States Supreme Court has been very sensitive to the rights of people with disabilities outside of the employment context and should the Seventh Circuit affirm this District Court decision, appealing to the United States Supreme Court may be worthwhile. If the Seventh Circuit were to affirm the District Court’s decision, a Circuit court split would exist even if the Seventh Circuit in its affirmance, assuming it is affirmed, paid lip service to the 11th Circuit decisions.
  2. This District Court decision severely limits Silva and Liese in at least two ways. First, Silva holds that the standard for effective communication is whether the culturally deaf individual was hindered in their communication, a fairly low standard. Second, Liese makes clear that deliberate indifference means something quite a bit different than the way someone usually thinks of the term. That is, was an individual in a position of authority do something about it but did not, also a fairly low standard. Again, if I am the plaintiff here, I would strongly consider an appeal.
  3. The problem with VRI is that you simply don’t know the qualifications of the interpreter you are getting. Depending upon the culturally deaf individual, the conveying of complex of medical information may be beyond the capabilities of the interpreter being seen through the VRI. One thing I learned in representing a culturally deaf individual is that it is absolutely critical to have a qualified interpreter present for many situations because the hearing world doesn’t always translate well to sign language. It is the job of that interpreter to break it down. As a preventive law matter, medical information is complex, and VRI should only be used as a last resort. Finally, a hearing person will not intuitively understand this, and so, a plaintiff may want to consider using an ASL expert to convey this to the judge and jury.
  4. The decision from this District Court makes it extremely difficult for a culturally deaf individual to get an in person interpreter when VRI is available.
  5. If you are representing a hospital and the patient says that it is okay for a family member to interpret for them, just say no. It’s a really bad idea and quite possibly in violation of the ADA’s final implementing regulations. If you are a culturally deaf individual needing medical services and you show up with a family member (after all, even hearing people show up with family members as hospitals), simply do not allow that family member to be interpreting for you with respect to any services provided by the medical provider or by the hospital.
  6. One of the underlying issues with this decision is that there needs to be more awareness among the hearing community just what ASL or sign language interpreters are actually doing when they do their job.
  7. I have read a lot of decisions about standing with respect to injunctive relief, and this particular decision takes a far narrower approach than many. That is worth an appeal as well.
  8. Finally, I note that this is a US magistrate judge decision and so it isn’t clear to me where the appeal lies. Does the appeal go to the Seventh Circuit or does it go to the judge to dismiss the magistrate’s recommendation? Perhaps, one of the litigators reading this blog entry can chime in on this. Regardless, this decision should be appealed either to the District Court judge or to the Seventh Circuit, whichever is applicable.
  9. Title III’s effective communication rule unlike title II’s effective communication rule, does not mandate preference be given to the person with a disability preferred style of communication.
  10. Especially if you are a plaintiff attorney, do not fall for ADA and the Rehabilitation Act being essentially the same so that one can be dismissed because the differences are quirky but can be critical (for examples, scope of coverage- with respect to title III- and causation- with respect to both title II and title III- are different between the two laws).

Finally, as I noted last time, my blog was nominated in the expert category for a best blog by the expert institute. Thanks to all who nominated me. You now have a chance to vote here for it to be a best blog. Also, I can’t say how much I appreciate the opportunity to be in ABA 100 blog for five years in a row. I’m very passionate about blogging on the ADA and related laws, and it’s great to see that it is making such a difference. I don’t plan on blogging week of Christmas or the week of New Year’s. Also, we have to have our greatest hits of 2018. I may have one blog before then.

In February of this year, I blogged on the topic of what happens when it is unclear whose program is involved with respect to activities of a place of education. It’s a question that comes up from time to time and is very complicated. For those representing educational institutions, it is an important one. On November 5, 2018, the Seventh Circuit affirmed that decision, and I thought it makes sense to go over the Seventh Circuit decision. Since we have already covered the facts in the prior blog entry, there is no reason to go into detail here as to what the facts are. So, the categories for this blog entry are court’s reasoning and takeaways. Due to that configuration, the reader is probably going to want to read the whole thing.

I

In affirming the District Court decision on behalf of the school, the Seventh Circuit reasoned as follows:

  1. The Department of Justice filed an amicus brief in the case at the invitation of the court.
  2. Title II of the ADA does not define explicitly, “services, program, or activity.”
  3. The final implementing regulations at 28 C.F.R. §35.102, state that the term applies, “to all services, program, and activities provided or made available by public entities.”
  4. The preamble to the final rule published as an appendix to the rule describes the statute as applying to, “anything a public entity does.”
  5. The limited case law interpreting the statutory term simply emphasizes the breadth of the ADA and of the phrase itself.
  6. Under 28 C.F.R. §35.130(b)(4), a governmental entity cannot avoid its obligations under the ADA by ceding its governmental function to private entities.
  7. The mandate of title II is clear so that whenever a public entity or federal funding recipient does anything, it has to extend the benefits of and cannot discriminate in that thing on the basis of disability.
  8. The question whether a particular event is a service, program, or activity of a public entity turns on what the public entity itself is doing, providing, or making available.
  9. Both the parties and the Department of Justice acknowledged that the regulations specifically contemplate that liability may attach to some complicated relationships between public and private actors. For example, 28 C.F.R. §35.130(b) prohibits a public entity from discriminating on the basis of disability, directly or indirectly, such as through contractual, licensing, or other arrangements.
  10. The Department of Justice in its amicus brief said that if there is a true joint endeavor, then both the public and private entity are responsible for complying with the ADA and/or §504 of the Rehabilitation Act with respect to the entire event.
  11. The Department of Justice in its amicus brief said that where the public entity does not engage in a joint endeavor with the private entity, but instead participates in the event of the private entity, then the liability of the public entity is limited to its own program within the event, but does not extend to the entire event. Whether it is a true joint endeavor or a situation where a public entity is simply participating in the event of a private entity is a continuum. Lots of situations will fall between the two extremes.
  12. Considering the record, this case falls closer to the public entity simply participating than it does to a true joint endeavor because: 1) the event was part of the museum’s own programming for the people of the community with the hope that those in attendance would be more supportive of the museum’s endeavors; 2) the students who sang at the event and the teachers who accompany them were simply the invitees of the museum; 3) the responsibility of the school upon acceptance of the invitation was limited to arranging for the attendance of the students and for the presentation of the musical program for the audience; and 4) the planning, community notification, and refreshments for the audience were handled by the museum as the sponsor and host of the event.
  13. Even looking at the record in a way most charitably for the plaintiff, it simply cannot be said that the school’s participation was in any way a substitution for an event that otherwise would have been held at the school as part of its own observance of the holiday season.
  14. Any benefits to the students of the school or to the school’s students parents were purely collateral to the objectives of the museum and must be considered in that context.
  15. The inquiry into whether a particular program involving private entities not subject to the statute and public entities subject to title II of the ADA is a service, program or activity of the public entity is a fact intensive issue.

II

Takeaways

  1. Over the years, I have noticed that the Seventh Circuit has evolved when it comes to persons with disabilities. At present, the Seventh Circuit seems to be less pro-disability than it has in the past. Certainly, other Circuits, such as the 11th and the 9th for example, are much more pro-disability in their decisions.
  2. The Seventh Circuit decision is quite broad in its analysis. That is, it doesn’t give the attorney a lot of specific guidelines as to how go about figuring out whose program is it. I don’t find thinking of whose program is it on a continuum very helpful for specific factual situations. For that, what the District Court had to say is useful, and since that decision was affirmed on appeal, remains good law. Of course, before you can figure out whose program it is, you have to figure out first what programs are involved. For that, the reader will want to take a look at this blog entry.
  3. With respect to appealing the case to the United States Supreme Court, I am not aware of any split in the Circuits. However, this particular area is so complicated and so fact intensive, that down the road I could see a split developing in the Circuits. So, the Supreme Court may wait for the split to occur before taking this kind of case.
  4. The case makes pretty clear that a public entity pawning off its obligations onto a private entity that discriminates on the basis of disability is not going to fly. On that score, the reader may want to look at this blog entry and this blog entry discussing the nondelegable/delegable duty of ADA compliance.
  5. For specific guidance outside of the general statement contained in this opinion, I would refer to this blog entry for trying to figure out just whose program is it.
  6. The statement from the opinion that reads: “the record, even charitably read for Ms. Ashby[plaintiff], did not support the conclusion that the school’s participation was in any way a substitution for an event that otherwise would have been held at the school as part of its own observance of the holiday season,” will be a boon for any defendant arguing that it wasn’t their program as this statement, if it becomes the standard, basically says anything short of a joint venture is not going to impose ADA liability. Such a reading doesn’t make sense in light of the way the rest the decision reads, but nevertheless look for defense lawyers to exploit this. Such a standard is also likely not to be followed by all Circuits, and thereby lead to the Circuit split.
  7. That the court recognizes the fact intensive nature of figuring out just whose program it is, presents plaintiffs with an opportunity to argue against motions for summary judgment filed by defendants.

Finally, my blog was nominated in the expert category for a best blog by the expert institute. Thanks to all who nominated me. You now have a chance to vote here for it to be a best blog. Regarding the ABA 100 for this year, I should be finding out soon, since the notification always happens around thanksgiving.

Have a great thanksgiving everyone!!!!!

I imagine most of us are hung over from watching the election returns this week. Here in Georgia, it is still an open question as to whether there will be a runoff for governor. Here in Georgia; the Secretary of State race is going to a runoff; Democrats gained in the Georgia Senate and in the Georgia House; and counties surrounding Atlanta went blue. Nationally, the Republicans gained in the U.S. Senate and the Democrats took over the House. So, that will change the dynamic quite a bit, especially with the upcoming Mueller findings. At this writing, there were still a couple of suburban Atlanta United States House races that could go either way. It is certainly going to make for an interesting two years until 2020 presidential.

 

Today’s case is long overdue for blogging. The reason for the delay is that with David Llewellyn, I co-counseled a case involving a culturally deaf client who was not given an ASL interpreter at the Doctor’s office nor was an ASL interpreter present for the culturally deaf client and his culturally deaf wife at the hospital. David and I sued both the doctor and the hospital for failure to provide effective communication under the Rehabilitation Act. The case we are blogging on today, Silva v. Baptist Health South Florida, Inc., was the essential underpinning of our case, which we were able to settle successfully. As usual, the case is divided into categories, and they are: facts; court’s reasoning; and takeaways. The reader is free to focus on any or all of the categories.

I

Facts

The plaintiffs are culturally deaf individuals and communicate primarily in American Sign Language. Both can read and write in simple English. One of the plaintiffs communicates with very basic proficiency while the other reads at a fifth grade level. The two hospitals plaintiffs visited are owned and operated by Baptist Health South Florida, and both take federal funds. Both plaintiffs separately visited both hospital facilities numerous times. While visiting the hospitals, they requested live on-site ASL interpreter for most visits. However, the hospital relied primarily on VRI (uses an Internet connected machine with a live ASL interpreter located remotely to communicate with the doctor and patient through a portable screen). During many of the plaintiff hospital visits, the machines routinely suffered from technical difficulties that either prevented the device from being turned on or resulted in an unclear image quality thereby disrupting the message being communicated visually on the screen. When the VRI machine was unavailable or malfunctioned, hospital staff would often rely on family member companions for interpretive assistance or would exchange handwritten notes with the plaintiffs themselves. On some occasions, when the VRI broke down, there was an ASL interpreter that would be called in to assist with communication. All of these instances occurred when the plaintiffs went for care themselves and when one of the plaintiffs accompanied his father to the hospital’s facility for treatment. Plaintiffs sued under both the ADA and the Rehabilitation Act.

II

Court’s Reasoning

  1. Under both the ADA and the Rehabilitation Act, to prevail, a person with disability has to prove that he or she was excluded from participation in or denied the benefits of the hospital’s services, program, or activities, or otherwise was discriminated against on account of her disability.
  2. Under 28 C.F.R. §36.303(c)(1), an exclusion, denial, or discrimination occurs whenever a hospital fails to provide appropriate auxiliary aids and services to a deaf patient, or a patient’s deaf companion where necessary to ensure effective communication.
  3. Citing to the case we discussed here, to recover monetary damages, a person with a disability has to show that the hospital was deliberately indifferent to her federally protected rights.
  4. Plaintiffs offered sufficient evidence to support a finding that they would return to defendant’s facilities and that they would likely experience a denial of benefits or discrimination upon the return. For example, Silva testified in a declaration that the defendants have all of his medical records and history, that the hospital was close to his home, and that he had a history of prior care and treatment by that hospital. Jebian, the other plaintiff, testified in the same declaration that he would go to that same hospital as a  companion for his father in the near future due to his father’s ongoing health concerns and required follow-up. Finally, both plaintiffs have attended defendant’s facilities dozens of times in the years preceding lawsuit and both experienced numerous problems with the VRI devices not working at all or failing to transmit a clear screen image.
  5. In a footnote, the court noted a factual dispute existed with respect to whether the hospital had a policy in violation of the ADA and the Rehabilitation Act of using VRI across the board even when an in person interpreter was warranted.
  6. The appropriate test for evaluating effective communication claims is whether the deaf patient experienced an impairment in his or her ability to communicate medically relevant information with the hospital staff. The focus is on the effectiveness of the communication and not on the medical success of the outcome.
  7. Citing to 42 U.S.C. §12182(b)(1)(A)(ii), 29 U.S.C. §794(a), 45 C.F.R. §84.4(b)(1)-(b)(1)(ii), and 45 C.F.R. §84.52(d)(1), the ADA and the Rehabilitation Act focus not on quality medical care or the ultimate treatment outcome, but on the equal opportunity to participate in obtaining and utilizing services.
  8. The exchange of information between doctor and patient is part and parcel of healthcare services. So, regardless of whether a patient ultimately gets the correct diagnosis or medically acceptable treatment, the patient is denied the equal opportunity to participate in healthcare services whenever he or she cannot communicate medically relevant information effectively with medical staff.
  9. Under 45 C.F.R. §84.4(b)(2)-final regulations implementing the Rehabilitation Act-auxiliary aids, benefits, and services, to be equally effective, are not required to produce the identical result or level of achievement for persons with disabilities, but they must afford person with disability equal opportunity to obtain the same result, gain the same benefit, or reach the same level of achievement in the most integrated setting appropriate to the person’s needs.
  10. What matters is whether the patient with a disability is afforded auxiliary aids sufficient to ensure a level of communication about medically relevant information substantially equal to that afforded to patients without disabilities.
  11. The ADA and the Rehabilitation Act focus on the communication itself and not on the downstream consequences of communication difficulties, which can be remote, attenuated, ambiguous, or even fortuitous. So, claims for ineffective communication are not the same as claims for medical malpractice.
  12. Limiting the required level of communication to that necessary to convey primary symptoms, treatment plans, and any discharge instructions may still result in Deaf patients receiving an unequal opportunity to participate in healthcare services when compared to patients without disabilities. After all, when a hearing person goes to the hospital, that person is not limited only to describing symptoms and receiving the treatment planning discharge instructions. Those conversations can and sometimes should include a whole host of other topics, such as any prior medical conditions in history, medications the patient is taking, lifestyle and dietary habits, differential diagnosis, possible follow-up procedures and test, informed consent issue, and side effects and costs of potential courses of treatment. Since a person without a disability had the benefit of such an expansive informational exchange, it is error to conclude on summary judgment that the mere successful communication of the primary symptoms, treatment plans, and discharge instructions is enough to preclude liability under the ADA and the Rehabilitation Act.
  13. District Court’s requirement that plaintiffs articulate exactly what they failed to understand imposed too great a burden because it would be exceedingly difficult for a culturally deaf individual to recount a conversation that he or she could not hear. It would be the same as asking a blind patient to describe the contents of materials they cannot read.
  14. The proper inquiry under the ADA and the Rehabilitation Act is the examination of whether the hospital provided the kind of auxiliary aids necessary to ensure that a deaf patient was not impaired in exchanging medically relevant information with hospital staff.
  15. To be an effective communication, it is sufficient if the patient experiences a real hindrance because of her disability that affects her ability to exchange material medical information with their healthcare providers (emphasis mine). The level of communication to a culturally deaf individual about medically relevant information must be substantially equal to that afforded to patients without disabilities.
  16. The task of determining whether an entity subject to the Rehabilitation Act has provided appropriate auxiliary aids is inherently fact intensive.
  17. The record is replete with numerous instances where both plaintiffs did not receive effective communication. Those influences include: back-and-forth use of written notes when the plaintiff was unable to understand most of what they attempted to communicate; signing forms without explaining what the plaintiff was signing; numerous malfunctions of the VRI devices; delays in obtaining a live interpreter; inability to communicate prior to the set up of the VRI machine, VRI connection not being smooth nor strong enough, and many more.
  18. In a footnote, the court noted that the DOJ interpretive guidelines on its regulations explained that the exchange of written notes is not appropriate when the matter involves more complexity, such as communications concerning a medical history or diagnosis, and conversation about medical procedures and treatment decision, or in communication of instruction for care at home or elsewhere.
  19. In another footnote, the court noted that the hospital does not get a get out of jail free card because one of the plaintiff’s father communicated effectively with the plaintiff. The ADA regulations at 28 C.F.R. §36.303(c)(3) expressly provides that a covered entity cannot rely on an adult accompanying an individual with a disability to interpret or facilitate communication except in very narrow circumstances not applicable to this case.
  20. Since a culturally deaf individual must rely on the slight and sophisticated hand movements of an interpreter depicted on the screen, when the screen image is unclear or becomes choppy, the message is disrupted. Thus, instances of technological failures are corroborative evidence of plaintiff’s assertion that she could not communicate effectively with hospital staff. In a footnote, the court noted VRI services that do not deliver high quality video images by producing lags, choppiness, blurriness or grainy images, or regular pauses and communication for the lack of a sharply delineated image do not comply with 28 C.F.R. §36.303(f).
  21. With respect to the other plaintiff, Jebian, numerous instances in the record show that the hospital relied on family members for interpretation and that the VRI machines did not work properly.
  22. What matters is the actual quality of the communication between the patient and the hospital staff and not whether technical requirements for VRI machines set forth in regulations were satisfied.
  23. The court agreed that while plaintiff may not receive damages for claims arising out of hospital visits beyond the statute of limitation. Nevertheless, those visits are relevant and admissible to show deliberate indifference in order to get damages. In a footnote, the court noted that such evidence is also relevant to the claim for permanent injunction against the defendants allegedly discriminatory policies. Policies may be part of an ongoing alleged violation under the continuing violation doctrine. That is, plaintiffs can rely on hospital visit preceding the limitation period to support their theory that the hospitals policies and practices, which continued through the limitation period, were unlawful.
  24. While Baptist Health is the parent company to both hospitals involved in this lawsuit, they don’t get a pass because Baptist Health owns and operates the hospitals the plaintiffs went to. Those hospitals also house the network to which the VRI machines are connected. It also applies its various policies and procedures to the hospitals and affiliated outpatient facilities.

III

Takeaways

  1. This case is a 2017 case, but to my mind, it is the most significant case for culturally deaf individuals in the last two years, though I recognize there may be argument over that. Also, nothing in this statement is meant to take away from the incredible work that the National Association of the Deaf has been doing in a variety of cases, many of which we have discussed in our blog.
  2. The standard of whether medical communication was impaired or hindered is a low standard.
  3. Under this decision, a healthcare provider should be very wary of over relying on VRI devices. Also, the culturally deaf community can’t stand these devices. While the DOJ may or may not be more receptive to VRI devices, I can tell you that over relying on the VRI devices when medical information is complex as it is, is likely to get a culturally deaf individual very very upset, impede medical care, and increase the chance of litigation.
  4. As we have discussed previously, effective communication rules have significant differences depending upon whether a private or public entity is involved. If a private entity is involved as discussed here, then there is room for back-and-forth negotiation but effective communication as set forth by this court must occur. On the other hand, if a public entity is involved, then, as discussed here, the public entity must give primary consideration to the preferred way the patient prefers to communicate. Thus, it is theoretically possible that a public hospital has a much higher standard for effective communication than a private hospital does. That said, Silva leads one to wonder just how much of a difference there actually will be with respect to healthcare providers and their patients when it comes to effective communications.
  5. If you are a healthcare provider, do NOT rely on family members to interpret for the culturally deaf individual.
  6. If you are using VRI machines, make sure your personnel is trained in how to use them and that if anything at all is preventing effective communication with the patient, get an ASL interpreter in there as soon as you can.
  7. Absolutely no reason in my mind why this case does not apply to equal force to the legal profession since the concerns expressed by the court are exactly the same when it comes to dealing with legal information.
  8. With respect to what it takes to prove deliberate indifference, we discussed that here.
  9. For defendants, this case makes clear that getting summary judgment on effective communication cases may be very difficult indeed.
  10. Did I mention that the culturally deaf community absolutely hates VRI machines and would love to see them completely gone from existence? That said, depending upon the state you are in, there may be a real issue with respect to the number of ASL interpreters that can interpret at a level enabling effective communication in the medical context.
  11. Policies and procedures that discriminate against persons with disabilities may run you into one of the few situations where the court applied the continuing violation doctrine with respect to statute of limitation issues.
  12. Did I mention that the culturally deaf community absolutely hates VRI machines and would love to see them completely gone from existence in favor of live ASL interpreters? Another reason for that point of view, is the quality of interpreters when using VRI machines can vary radically.
  13. For lawyers, one of the common ways the culturally deaf community communicate with the hearing community is through the use of videophones. That is, the culturally deaf individual uses a video phone to call the hearing person or a hearing person uses his or her regular phone to call the culturally deaf individual. The call is then connected and an interpreter is then translating what the hearing person is saying and vice a versa through the use of ASL. The process is seamless. It is almost as if you are using the regular phone. That said, the interpreters that you get in such a situation may vary radically in their skill level with respect to interpreting complex legal information. That is something you have to be aware of and prepared for. You may have to request a different interpreter. Depending on the information and the stakes involved, you may just have to schedule an in-person meeting. Keep in mind, that whenever you have an in-person meeting, as a lawyer, you are obligated under title III of the ADA to furnish the ASL interpreter for that meeting and you cannot pass on that cost to the client. So, a lawyer, particularly on the plaintiff side, certainly has an incentive to use the video phones whenever possible, but you have to keep in mind its limitations.
  14. Finally, it would be wonderful if all the State Bars had a program like Texas whereby solo and small firm practitioners can get reimbursement from the State Bar whenever they need to have an ASL interpreter for a culturally deaf client. Such a program would certainly increase the ability of the deaf community to take advantage of legal services.

Before getting started on the blog of the week, would be hard to not mention what happened in Pittsburgh. At our synagogue over the weekend during family minyan, which is a small service that takes place before people go to community/Hebrew/religious school (I am never sure what to call it), we said mourners Kaddish and lit a yizkor candle for our brethren in Pittsburgh. In my class ( I teach seventh grade), we discussed the story of Samson which focuses on revenge v. justice. That led to a spirited discussion over what penalty might be in order for the shooter. My thoughts and prayers go out to Pittsburgh. Far as I know, it is uncertain what security measures out own synagogue may be taking. I do know that many synagogues all over Atlanta have memorial services/vigils planned, including my own. For some excellent thoughts on anti-Semitism and why you need to watch out for in your workplace, I commend you to Jon Hyman’s blog entry on the subject, which can be found here. I also saw in the Atlanta paper today that since 2016, 54% of hate crimes involve Jewish animus. My original idea before Jon’s blog entry hit me like a ton of bricks was to talk about some sporting events in the last week. For example, congratulations to the Boston Red Sox on winning the World Series. I was able to catch some of the games. Absolutely remarkable how they won three in a row in Los Angeles. Congratulations to Red Sox nation. I think one of the reason people enjoy sports so much, especially spectator sports, is because for the most part they offer an escape. Again, my thoughts and prayers are with Pittsburgh and with the Jewish community all over America. My parents always said that it could happen here, but I never wanted to believe it….

Turning to the blog entry for the week, back in July 2016, I blogged on a 10th Circuit case that held a plasma center was a place of public accommodation under title III. Now, two years later the Fifth Circuit was faced with the exact same issue and decided the opposite. So, we now have a Circuit Court split. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning; Texas Human Resources Code claim; could a blood donor really be an employee; and takeaways. The reader is free to concentrate on any or all of the categories.

I

Facts

If anything, the facts in the case we are blogging on today, Silguero v. CSL Plasma, Inc., are even more egregious than the one we blogged about in July, 2016. Levorsen involved a schizophrenic person wanting to donate blood. Here, one plaintiff used a service dog for anxiety, and the other one had an unsteady gait. What this plasma center does is exactly the same as what we discussed in my July, 2016, blog entry. The only other difference between the two cases is that the plaintiffs also sued under the Texas Human Resources Code, §121.001 et. seq., claiming that they suffered discrimination by a public facility.

II

Court’s Reasoning

  1. The key question is the meaning of “or other service establishment,” contained in 42 U.S.C. §12181(7)(F). That particular section denotes laundromats, dry cleaners, banks, barbershops, beauty shops, travel services, shoe repair services, funeral parlors, gas stations, office of an accountant or lawyer, pharmacies, insurance offices, professional offices of the healthcare provider, and hospitals as specific service establishments. After hospitals, a comma appears and then the clause ends with, “other service establishment.”
  2. In a footnote, the Fifth Circuit noted that the Department of Justice filed an amicus brief expressing its view that plasma collection centers are service establishments under title III.
  3. In a footnote, the court noted that while plaintiffs argue that the defendants advertised their collection centers were a service it gives for customers, how a party advertises work performed has no bearing on what Congress meant by the term, “service.”
  4. The word, “service” according to both Marion-Webster Collegiate Dictionary and Webster New World Collegiate Dictionary generally denotes some helpful act or an act giving assistance or advantage to another.
  5. “Helpful,” implies that someone receives help from the act.
  6. The verb “giving,” and the preposition “to,” indicate that the assistance or advantage is conveyed from the act to the individual.
  7. Congress’s use of the word “service,” suggests not only that the establishment perform some action but also that the action helps or benefits the recipient. So, in the case of a “service establishment,” the establishments serve the members of the public who are helped or benefited by the service. Therefore, a “service establishment” is an establishment performing some act or work for an individual benefiting from the act or work. This construction of what is a service establishment, is essentially the same as what the 10th Circuit came up with in Levorsen.
  8. The word “service,” implies that the customer benefits by the act, and no such benefit occurs in the case of a customer donating blood at a plasma center.
  9. The list of public accommodations appearing before the phrase “other service establishment,” does not include any establishment providing a service without a detectable benefit to the customer.
  10. The structure of the ADA itself indicates that an establishment typically does not pay a customer for services it provides.
  11. When it comes to a service provided by a service establishment, customarily, the service flows from the establishment to an individual. In this situation, donors receive no obvious benefit or help that makes the plasma collection center’s act a service. For example, donors do not have the plasma earmarked for themselves or to a specific third party for whom they are concerned. Rather, the plasma becomes the property of the plasma collection center to do with whatever it wants.
  12. The labor furnished when donating blood is not useful to the donor, it is useful to the establishment, and the payment of money to the donor is wholly collateral to the act of plasma collection.
  13. The canon of construction ejusdem generis says that a catchall phrase should be read in light of the preceding list. So, while the ADA itself says that the statute is to be liberally construed, that does not mean a court can come up with a construction that is untethered from its text.
  14. If Congress wanted to cover all establishments, it could have done so by omitting the word service.
  15. Legislative history is of no help to the plaintiffs. In a footnote, the court noted that it was essentially doing what the legislative history called for by trying to figure out what the overall category meant rather than whether particular places were service establishments.
  16. Each of the items listed in 42 U.S.C. §12181(7)(F) involves an establishment acting in some way that benefit individuals. That is: dry cleaners press customer shirts; lawyers file pleadings; hospitals mend patients broken bones, etc. In each of these situations, the establishment performs an action directly benefiting the individual. A plasma collection center does not provide any such benefits to its donors.
  17. While it is true that lawyers may work on a pro bono basis, that doesn’t change the fact that lawyers are working unambiguously to benefit clients, and therefore are performing a service.
  18. While it is true that banks may pay customers through interest on savings, any payment they receive is not a result of the customer’s labor, but rather is the result of the act the bank performs to serve the customer. That is simply not the case with plasma centers where the plasma belongs to the plasma collection center, and the plasma collection center does not manage or oversee the plasma on behalf of the donor.
  19. Paying for plasma donation is governed by other provisions of the ADA. In particular, that is more akin to employment or contract work, not to the provision of services to a customer.
  20. Customers are purchasers of goods and services, while an employee is a person working for an employer for wage or salary. So, whether a person is being paid is relevant because it can indicate whether an individual was a customer or is instead an employee or other hired laborer.
  21. With respect to the ADA, it is title I that applies to employment relationships, while it is title III that applies to places of public accommodations, which includes service establishments.
  22. Interpreting service establishments and title III extremely broadly so that it includes employment and employment like relationships, risks overrunning Congress’s legislative choices in coming up with title I. In fact, it would make title I largely redundant by turning virtually every employer and entrepreneur into a service establishment.
  23. Payment to or by the establishment is highly relevant for determining whether an establishment provides a service to a customer, and is therefore a service establishment.

III

Court’s Reasoning with Respect to the Texas Human Resources Code Claim

  1. The Texas Human Resources Code differs significantly from the ADA. For example, it was enacted before the ADA and was not split into various titles covering distinctly different activities.
  2. The Texas Human Resources Code use a different term to define its scope. For instance, instead of applying to public accommodations, 121.003(a) applies to public facilities. Further, the term, “public facility” per §121.002(5), is defined in an entirely different manner than “public accommodation,” under the ADA.
  3. The Supreme Court of Texas has said that because the differences are so stark, it will not look to federal court interpretations of public accommodations when interpreting the term “public facility,” under the Texas Human Resources Code. So, it simply cannot be assumed that because CSL Plasma is not a place of public accommodation under the ADA, that it isn’t a public facility under the Texas Human Resources Code.
  4. Texas courts have not interpreted the term, “public facility” often, apparently only once in a completely different context.
  5. The Texas Constitution grants the Supreme Court of Texas the power to answer questions of state law certified by a federal appellate court. In deciding whether such certification is proper the following factors are considered: 1) the closeness of the question and the existence of sufficient sources of State law; 2) the degree to which considerations of comity are relevant in light of the particular issue and the case to be decided; and 3) practical limitations of the certification process: significant delay and possible inability to frame the issue so as to produce a helpful response on the part of the State court. When all of these factors are applied, certification is appropriate because: no State law guidance exists, and the federal analogue is not analogous; the answer to just what is a service establishment under Texas law could either impose future liability on many Texas businesses or preclude Texans from relying on an important antidiscrimination statute; and there is no hardship in certifying the question since it is possible to formulate discrete issues for consideration by the Supreme Court of Texas. Finally, neither party presented any reasons not to certify the relevant questions as to the Supreme Court of Texas.
  6. With respect to what questions are certified to the Supreme Court of Texas, they are: 1) is a plasma collection center a “public facility,” under §121.002(5) of the Texas Human Resources Code?; 2) if so, does Texas law allow the plasma collection center to reject a person with a disability based upon the center’s concern for the individual’s health stemming from the disability? Further, what standard applies for determining whether the plasma collection center properly rejected the person rather than committed impermissible discrimination under §121.003(a) of the Texas Human Resources Code. Finally, the Supreme Court of Texas may certainly not confine its reply to the precise questions certified by the Fifth Circuit.

IV

Could a Donor of Blood Really Be an Employee?

  1. Much is made in this decision about the structure of the ADA and how a person donating plasma resembles an employee more than anything else. Could that person be an employee of the plasma center? There are various tests that can be used to figure out whether a person is an employee. A common one is whether the employer controls when, where, and how to do the job. When I was a general counsel to two different mental health mental retardation authorities in Texas many many moons ago, this was an issue that I dealt with constantly because we utilized a tremendous amount of independent contractors to provide services to the clients of the mental health and mental retardation authority. I always used Revenue Ruling 87-41’s 20 factor test to figure out whether the person was an employee or not. I thought it would make sense to discuss those factors here:
  2. Instructions: is the worker required to comply with other persons instructions about when, where, and how he or she is to work? If so, you have an employee. This factor seems to cut against employee status because the person donating blood can show up to the plasma center whenever they feel like it.
  3. Training: training a worker by requiring an experienced employee to work with the worker, by corresponding with the worker, by requiring the worker to attend meeting, or by using other methods, indicates that the person for whom the services are performed want the services performed in a particular method or manner. This factor cuts against employee status because nothing of this kind is going on when donating plasma.
  4. Integration: integration of the worker services into the business operations generally shows that the worker is subject to direction and control. When the success or continuation of a business depends to an appreciable degree upon the performance of certain services, workers performing those services must necessarily be subject to a certain amount of control by the owner of the business. This one is a bit odd in the plasma donation context. Clearly, without the donor, the plasma center has no business at all. On the other hand, in the traditional sense of the term, you would be hard-pressed to say that the plasma center has direction and control over the employee in the way this paragraph would customarily refer to the term.
  5. Services rendered personally: if the services must be rendered personally, normally the person for whom the services are performed are interested in the methods used to accomplish the work as well as in the results. With respect to this factor, services are certainly being rendered personally, but the hiring entity is certainly not interested in the methods used to accomplish the work. They are interested in the results.
  6. Hiring, supervising, and paying assistants: if the person for whom the services are performed hire, supervise, and pay assistants, that factor generally shows control over the workers on the job. This factor is not applicable to the person donating blood at a plasma center and certainly cuts against an employment relationship.
  7. Continuing relationship: a continuing relationship between the worker and the person for whom the services are performed indicates that an employer employee relationship exists. A continuing relationship may exist where work is performed at frequently recurring although irregular intervals. This factor works in favor of the employment relationship.
  8. Hours of work: the establishment of set hours of work by the hiring entity from the services are performed as a factor indicating control. This factor cuts against an employment relationship because there are no set hours of work.
  9. Full time required: if the worker must devote substantially full-time to the business that restricts the worker from doing other gainful work. This factor also cuts against an employment relationship as donors of blood are not working full time in that capacity nor could they be.
  10. Doing work on employer’s premises: if the work is performed on the premises of the person or person for whom the services are performed, that factor shows control over the worker, especially if the work could be done elsewhere. Control over the place of work is indicated when the person for whom the services are performed, such as the right to compel the worker to travel a designated route, to canvas a territory within a certain time, or to work at specific places as required. With respect to this factor, the work must be performed on the premises, but it can’t be done elsewhere except at another plasma center. Further, this is not a situation where the donor of blood is having to travel designated routes, canvas a territory, or work at specific places.
  11. Order or sequence set: if a worker must perform services in the order or sequence set by the person for whom the services are performed, that factor shows that the worker is not free to follow the worker’s own pattern of work but must follow the established routines and schedules of the person for whom the services are performed. Taken literally, this factor cuts in favor of the employment relationship.
  12. Oral or written reports: a requirement that the worker submit regular written reports to the person for whom the services are performed indicate a degree of control. This factor cuts against an employment relationship because no written reports or oral reports are occurring.
  13. Payment by hour, week, month: payment by the hour, week, or month generally point to an employer-employee relationship. With respect to this factor, the person is being paid every time they donate blood. So, this factor also cuts against the employment relationship.
  14. Payment of business and/or traveling expenses: if the person for whom the services are performed ordinarily the worker’s business and/or traveling expenses, the worker is ordinarily an employee. That is simply not what is going on here with respect to someone who would donating blood, and therefore, this factor cuts against the employment relationship.
  15. Furnishing of tools and materials: the fact that the person for whom the services are performed furnishes significant tools, materials, and other equipment tends to show the existence of an employer-employee relationship. This factor works in favor of an employment relationship because the donator of the blood is not furnishing any tools or materials him or herself.
  16. Significant investment: if the worker invests in facilities used by the worker in performing services and are not typically maintained by employees, that factor tends to indicate that the worker is an independent contractor. On the other hand, lack of investment in facilities indicates dependence on the person for whom the services are performed for such facility and thereby indicate the existence of an employer employee relationship. This factor cuts in favor of an employment relationship.
  17. Realization of profit or loss: a worker who can realize a profit or suffer a loss as a result of the worker’s services is generally an independent contractor, but the worker who cannot is an employee. This factor also cuts in favor of an employment relationship because the person donating blood is receiving a take it or leave fee for the donation.
  18. Working for more than one firm at a time: if a worker performs more than de minimis services for multiple unrelated persons or firms at the same time, that factor generally indicate the worker is an independent contractor. That said, it is possible that such a worker could be an employee of more than one person. This factor doesn’t cut either way.
  19. Making service available to general public: the fact that a worker makes his or her services available to the general public on a regular and consistent basis indicates an independent contractor relationship. This factor cuts in favor of the employment relationship as services are not being made available to the general public.
  20. Right to discharge: the right to discharge a worker is a factor indicating that the worker is an employee in the person possessing the right is an employer. An employer exercises control through the threat of dismissal, which causes the worker to obey the employer’s instructions. An independent contractor cannot be fired so long as the independent contractor produces a result that meet the contract specifications. Here, a plasma center might refuse to provide its services to a person wanting to donate blood. So, you might argue that the person is being fired, but each time a person wants to donate blood, it starts another relationship. So, my view is that this factor cuts against an employment relationship.
  21. Right to terminate: if the worker had the right to end his or her relationship with the person for whom the services are performed at any time he or she wishes without incurring liability, that factor indicates an employer employee relationship. This factor cuts in favor of an employment relationship as certainly the person donating blood can end the relationship at any time they want for any reason without incurring liability. All they have to do not show up.
  22. When I was doing this all the time, what I would do is add up the factors and see how many were on each side of the ledger. Keep in mind, it is a holistic question and there are situations were even though you have more factors on one side of the ledger than the other, you may still decide for the side of the ledger having fewer amount of factors. Also, in close calls, you’re probably better off erring on the side of an employment relationship. Adding up the factors here, I get 10 factors indicating that an employment relationship does not exist and 10 factors indicating that an employment relationship may well exist. So, now what? Well, the Fifth Circuit opinion gives an opening for plasma donors to argue that they are entitled to title I of the ADA protections. Will this opinion create lots of litigation over whether plasma donors are employees given our analysis of the 20 factors? It might.

V

Takeaways:

  1. Revenue Ruling 87-41 isn’t the only test out there. The Department of Labor has its own tests. Fascinating that when I applied Revenue Ruling 87-41 tests to this situation, I wound up with roughly an even split. That means, plasma centers may want to have their legal counsel evaluate as to what their tax liability is with respect to paying donors. They may also want to have legal counsel evaluate whether the donors are employees for other purposes. Finally, they may be dealing with title I liability when they deny donors with disabilities the right to donate their blood.
  2. Silguero and Levorsen are in direct conflict with each other and cannot be reconciled. This means it is teed up for the Supreme Court. How will the Supreme Court decide? That is anybody’s guess. As I have mentioned numerous times before, persons with disabilities have been very successful at the Supreme Court outside of the employment context. There are now new Justices on the Supreme Court. Impossible to say how Justice Kavanagh might analyze it. With respect to Justice Gorsuch, also very difficult to say. I do think he as well as Justice Kavanagh may be receptive to eujesdim generis, but as we discussed in this blog entry, Justice Gorsuch is not afraid to use common sense when deciding things. Swing vote is likely to be Justice Roberts with Justice Gorsuch a wild card. Also, it bears noting that the Department of Justice filed an amicus brief in the Fifth Circuit case stating that plasma centers are places of public accommodations. If they maintain that at the Supreme Court level, that may be very persuasive.
  3. While when I applied the 20 factor test, I got an even split, intuitively it would seem that the donor of blood plasma would not be an employee. If they are indeed an employee, that opens up a tremendous can of worms, even more so than the can of worms the Fifth Circuit said it would open if it agreed with Levorsen.
  4. Not covered in the decision was whether even assuming a plasma center is a place of public accommodation, could there be health and safety regulations that would allow the plasma center to prohibit certain people with disabilities from donating? That may or may not be the case.
  5. If a plasma center is not a place of public accommodation and the person donating blood is not an employee, do they have any recourse for disability discrimination? Well, chances are the plasma center takes federal funds. If so, this blog entry might be of help.
  6. Never forget about your own State law.

As readers of this blog know, I don’t usually blog more than once a week. However, I had a moment and a real cool idea already in the can so to speak, so here goes.

At least once a month, I get a call from someone around the country talking about how the court system is inaccessible. Usually, it is coming from a Family Court, but not exclusively so. Also, whether this State is red or blue doesn’t matter. I am proud to say that the State of Georgia has been busy working on these issues, and I have been doing what I can to help in a variety of ways, including, for example, volunteering to come up with a courtroom accessibility best practices checklist. I thought the readers of this blog would really appreciate it if I modified that list for our blog.

The following is a nonexclusive list of considerations for ensuring persons with disabilities have meaningful access per the ADA and §504 of the Rehabilitation Act (the latter may apply if federal funding is involved). Also, the list is not not exhaustive, and is also not a substitute for obtaining knowledgeable legal counsel on ADA matters as all of this can get really complicated as we know.

  1. Make sure judges and administrative staff receive quality training from ADA knowledgeable individuals. I have often wondered just who is providing the training when it comes to ADA compliance across all ADA titles. Typically, when there is an ADA dispute and it settles, training is a required part of the settlement. If the training is good, I don’t understand why these things keep happening. Training should also be regular. Further, you need to have an ADA/§504 knowledgeable person/attorney to help out with the complicated questions that arise.
  2. Have an ADA/§504 coordinator and an ADA/§504 grievance procedure. If the Rehabilitation Act applies, you need to have this if you have more than 15 employees. If only the ADA applies, you need to have it if you have more than 50 employees. Regardless, having both is excellent preventive law.
  3. Don’t be afraid to get help from knowledgeable ADA counsel as ADA and §504 are extremely complicated. Also, don’t be afraid to bring in outside experts or ask for briefing. Check your State for the judicial rules in this area. For example, Georgia allows a court to bring in an outside expert to help sort things out providing all the parties are on notice as to why the expert is being brought in and what the expert will do. Your State may have similar rules.
  4. The interactive process is critical. Remember, one size does not fit all. The ADA focuses on an individualized analysis.
  5. Judges and all personnel should know the definition of a disability as amended by the ADA Amendments Act. The bottom line is that after the amendments it’s going to be really difficult to find that a person does not have a disability.
  6. Make sure judges and all personnel are familiar with the federal regulations on service dogs and effective communication. With respect to service dogs, keep in mind, that it is entirely possible that your State laws on service dogs fall below the standard set by the DOJ in their final implementing title II and title III ADA regulations. With respect to effective communication, I really like this guidance, which we discussed in this blog entry. I realize that the guidance is not applicable to the court system, but it is so good that it should be useful in this context.
  7. With respect to effective communication pertaining to court access, remember primary consideration must be given to the individual’s preferred mode of communicating because courts are public entities.
  8. Make sure all requests for modifications are handled timely and with respect. If requesting documentation, make sure that documentation is narrowly focused and not excessive.
  9. Don’t charge a person with a disability for any accommodations/modifications.
  10. Read Silva v. Baptist Health South, Florida, 856 F.3d 824 (11th 2017). I have not blogged on this case. That said, I did co-counsel with an attorney here in Atlanta on an effective communication case involving a doctor and a hospital that did not provide an ASL interpreter for culturally deaf, Deaf, individuals. This case is a real game changer for the culturally deaf. It says that effective communication does not occur under the Rehabilitation Act if the communication hinders the culturally deaf individual’s understanding of what is being said. Silva took place in the medical context, but its reasoning easily transfers to the legal arena.
  11. Remember reasonable accommodations/modifications are whatever gets the person with disability to the same starting line as a person without a disability. Reasonable accommodations/modifications must be done unless there is an undue burden or a fundamental alteration, both of which, as we know, are terms of art and are very difficult standards to meet.
  12. Perform a self-evaluation plan. This plan should have been completed in 1992. If not done already, get one done.
  13. Develop a transition plan to resolve issues arising from the self-evaluation plan.
  14. Make sure people are aware of how to request accommodations.
  15. Is the court’s website meaningfully accessible per the ADA (WCAG 2.0 AA is the gold standard), for persons with disabilities. Pay particular attention to screen readers, voice dictation, and captioning of audio. Also, keep in mind that a website may be accessible for voice dictation users but not for screen readers and vice a versa.
  16. Establish specific flexible procedures to address reasonable accommodation/modification request and to meet recurring accessibility needs. That is, do have procedures, but make sure they are flexible enough to deal with every situation being entirely different.
  17. Your State may have a judicial handbook for courtroom accessibility. Georgia has one, and it is excellent.
  18. For a resource, you can always look at this blog. I really love its search engine and use it all the time.

Next week, I explore once again just what is a service establishment. Without spoiling everything, let me say there is now a clear-cut Circuit Court split on the issue. In the meantime, you might want to review this blog entry.

As I have mentioned before, I am not afraid to blog on cases discussed by fellow bloggers. Recently, Richard Hunt, whose blog appears on my blog roll, discussed a whole bunch of cases. Many of those cases I have put in my to blog pipeline, and two of which are the subject of today’s blog. Both cases involve website accessibility. One involves a credit union and the other involves General Nutrition Corporation. The cases are Jones v. Lanier Federal Credit Union, 2018 U.S. Dist. LEXIS 171060 (N.D. GA, September 26, 2018), and Gomez v. General Nutrition Corp., 2018 U.S. Dist. LEXIS 49655 (S.D. Fla. 2018), also here. Gomez is a published decision. With respect to Jones, in the interest of full disclosure, local counsel on the case was James Radford and his firm Radford and Keebaugh, from Decatur Georgia. I know James and his partner, Regan Keebaugh, and refer many cases to them. I am not sure whether Jones will be published. As usual, the blog entry is divided into categories and they are: Jones facts; Jones court’s reasoning; Jones takeaways; Gomez facts; Gomez court’s reasoning; and Gomez takeaways. Of course, the reader is free to focus on any or all of the categories.

I

Jones Facts

The facts are straightforward. Plaintiff uses a screen reader, and the defendant operates a website providing information about its location, services and amenities. When plaintiff tried to access the website, he found empty or missing form labels, empty links containing no text, and redundant links thereby denying him the full use and enjoyment of the credit union’s facilities and services. Plaintiff sought an injunction as well as attorney’s fees.

II

Jones Court’s Reasoning

  1. Membership in the credit union is not a prerequisite for standing.
  2. Plaintiff suffered a concrete injury when he attempted to access the website but was unable to fully and effectively utilize it.
  3. Plaintiff adequately pled a threat of future discrimination by defendant when he alleged an intent to return to the website, whereupon he will face barriers to access because he is visually-impaired.
  4. The injury plaintiff seeks to address is not the inability to access defendant’s services. Rather, it is the inability to access defendant’s website. So, an order by the court requiring defendant to remove the barriers facing the plaintiff when attempting to use defendant’s website would address that injury.
  5. Defendant’s physical locations are public accommodations.
  6. Regardless of whether the theory is that a website can be considered a public accommodation without a connection to a physical place or whether a sufficient nexus must exist, plaintiff’s case goes forward either way.
  7. A nexus exists because: 1) the website provides goods and services such as information concerning the locations it operates and information and descriptions of its amenities and services, privileges, advantages and accommodations; 2) the website allows user to find locations for them to visit; and 3) plaintiff alleged he was deterred from visiting the physical locations that plaintiff has as a result of using the website.
  8. With respect to a nexus, the website is heavily integrated with and in many ways operates as a gateway to defendant’s physical store locations, and plaintiff cannot fully and equally enjoy those goods and services offered by the defendant because of the website’s inaccessibility.
  9. With respect to the due process argument under the void for vagueness doctrine since no regulation for website accessibility exist or are forthcoming, the court found that the ADA is not so unclear as to be unconstitutionally vague even without the benefit of DOJ regulations. Further, plaintiff is not seeking an injunction imposing WCAG 2.0, rather plaintiff seeks to require defendant’s compliance with the ADA without dictating how the defendant has to comply with the statute. Accordingly, the requested relief does not violate due process.
  10. In a footnote, the court notes that being a tester does not preclude standing under the ADA.
  11. In another footnote, the court questioned whether the nexus test is the proper test for figuring out website accessibility.

III

Jones Takeaways

  1. As Richard Hunt has discussed numerous times in his blog, some courts are buying that you can’t get to first base in a website accessibility case unless there is some probability that you could actually take advantage of that particular place of public accommodation. This court was having none of it.
  2. In a footnote, this court makes clear that while it believes a gateway exists sufficient to find standing, it prefers the approach that a website may be considered a public accommodation without a connection to a physical place.
  3. The court was also having none of the argument that the lack of DOJ regulations violates due process. The critical factor is that the defendant has flexibility with respect to ADA compliance, but that the ADA must be complied with.
  4. Just because plaintiff is a tester, doesn’t affect standing one way or the other.
  5. When I first started dealing with website accessibility issues, I was of the opinion that flexibility for defendants is great, and that regulations only take away that flexibility. However, for the reasons that Richard has mentioned in his blog on more than one occasion, I have come around to the position that DOJ regulations if gone through the proper rulemaking process whereby all views are considered would bring needed sensibility to the area. Without such regulations, it is completely up to each court to figure out what meaningful accessibility is and that is going to vary from judge to judge and plaintiff to plaintiff.

IV

Gomez Facts

Gomez is legally blind and uses screen reading software to access the Internet. The summer of 2017, plaintiff visited the website of the General Nutrition Company. That website allows customers to purchase General Nutrition Company’s goods and services as well as view any promotions and deals offered at that time. It also provides a store locator. When Gomez visited the website, he could not access many of its features, such as adding items to its online shopping cart, accessing the store locator, or reading the deals and promotions. The inaccessibility was due to the mislabeling of the online content so that his screen reader did not work properly. While the website did not include a statement regarding defendant’s commitment to ADA compliance, in its terms and conditions, it did provide a phone number for customers to call if they needed additional assistance. As recently as June 2018, defendant’s expert using automated accessibility tests AChecker and WAVE found zero errors and no known problems with the website. However, plaintiff’s expert found errors that could prevent a user from selecting a product and completing a purchase. Plaintiff filed a motion for summary judgment and a motion to exclude the testimony and opinions of defendant’s expert.

V

Gomez Court’s Reasoning

  1. When it comes to injunctive relief, plaintiff must show a sufficient likelihood that he will be injured by such conduct in the future. Plaintiff has done that because he faces barriers to access the website and thereby suffered a concrete injury. Further, if the problems are not addressed, he will suffer that same injury in the future.
  2. Plaintiff’s status as an ADA tester has nothing to do with his standing.
  3. As we have discussed previously here, in the 11th Circuit, title III covers both tangible and intangible barriers, and that whatever goods and services the public accommodation offers as part of its place of public accommodation, the public accommodation cannot discriminate against people on the basis of disability, even if those goods and services are intangible.
  4. Courts in the 11th Circuit have found that websites are subject to the ADA if a nexus between the website and the physical premises of a public accommodation can be established.
  5. Few courts have defined nexus precisely. As we have discussed previously here and here for example, where a website is heavily integrated with physical store locations and operate as a gateway to the physical store location, courts have found that the website is a service of the public accommodation and covered by the ADA. That is, the ADA prohibits a retailer’s website from impeding a person with a disability’s full use and enjoyment of the brick-and-mortar store.
  6. Just providing information may not be enough to establish a nexus. However, citing to various cases, the ability to pre-order or purchase products probably does create a sufficient nexus between the website and the physical store.
  7. Looking at the various decisions as a whole, a number of factors exist for determining whether a website has a sufficient nexus to the physical stores. Those factors are: 1) whether the website provides a service of the public accommodation like the ability to purchase or preorder products; 2) whether the alleged barrier to access prevents the full use and enjoyment of services of the public accommodation; 3) whether the website provides more than just information about the store; 4) whether the website impedes access to the physical location; and 5) whether the website facilitates the use of the physical stores.
  8. In this situation, GNC’s website is a service facilitating the use of the physical store, and therefore, it is a place of public accommodation. More specifically, the ability to purchase products remotely is a service of the physical stores. Further, by providing information about promotions and deals in addition to information about store information, the website operates as a gateway to physical stores.
  9. Defendant’s expert lacked specialized knowledge or experience on website accessibility. Further, his professional training and experience is in e-commerce, which is only tangentially related to web accessibility. Defendant’s expert does not know the success criteria of the accessibility checking software relied on by the defendant. Further, defendant’s expert does not usually run those tests personally himself.
  10. Defendant’s expert not only based his opinion upon reliable principles or methods but also on the input he had received from people over 20+ years of just interaction. That kind of interaction cannot be tested or peer-reviewed, has no known rate of error, and defendant put forth no evidence that such a technique is accepted in the relevant scientific community.
  11. While testimony on website accessibility would be helpful to deciding the case, defendant’s expert lack of experience in web accessibility and the unreliability of his opinions outweigh any potential helpfulness.
  12. Plaintiff’s expert tested the website and found that it had 77% and 64% compliance on success levels AA and A and that such errors could prevent a user from selecting a product and completing the purchase.
  13. While the court can grant summary judgment to plaintiff as to liability, it cannot grant summary judgment as to the remedy for two reasons. First, plaintiff has provided no support that WCAG 2 .0 is an appropriate remedy. Second, even if that was the appropriate remedy, the record is silent as to which success level is most appropriate.
  14. In a footnote, the court noted that the defendant has been hauled into court regarding website accessibility before. That case settled. As part of that settlement, the defendant agreed to take commercially reasonable steps to improve accessibility for individuals using screen readers. Further, that agreement stated that the defendant may use WCAG 2.0 level AA or other applicable authority as a reference for making such improvements.
  15. In another footnote, the court noted that plaintiff’s expert may very well be qualified to talk on matters within his expertise, such as the costs to implement accessibility measures but that does not help with regard to ADA compliance.
  16. In yet another footnote, the court found highly persuasive the number of cases adopting WCAG 2.0 success level AA as the appropriate standard to measure accessibility.

VI

Gomez Takeaways

  1. Plaintiff prevailed on summary judgment, which is not a frequent occurrence at all.
  2. When it comes to website accessibility, there are three things a business needs to be concerned about. In particular, the website needs to be meaningfully accessible to persons with disabilities using screen readers, voice dictation technology, and to the Deaf/hard of hearing, if audio is involved.
  3. This case is the first one I am aware of that has reviewed the case law to figure out just what factors the courts consider when determining whether a nexus exists. Lawyers may find this analysis very helpful in the future. As discussed in the opinion, these factors are individual and not in combination. That is, you get a nexus if any of the factors are met.
  4. One wonders how this particular judge, Marcia Cooke of the Southern District of Florida, would have dealt with Jones because of her reference that just providing information may not be enough to establish a nexus.
  5. Liability and a remedy are not the same thing.
  6. As Richard Hunt has mentioned previously in his blog entries, relying on widely available Internet checking tools for accessibility may not be enough. The key is whether the individual with the disability has meaningful access.
  7. The court acknowledged that expert testimony on website accessibility if the expert was properly qualified could be very helpful.
  8. If you are looking for signals, the footnotes mentioned in the Gomez takeaways section above, are definitely important reading.
  9. The Winn-Dixie decision that will come down from the 11th Circuit will definitely impact both of the cases we discussed today.

Here in Atlanta, we have finally moved into fall weather. That means temperatures in the afternoons in the upper 60s and low 70s and temperatures in the evenings and mornings in the 50s. The 20 to 30° range of temperature that Atlanta gets in the winter and in the fall took some getting used to.

Today’s case is Ward v. United States Xpress. It deals with preemployment medical inquiries and retaliation. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning; and takeaways. The reader is free to focus on any or all of the categories.

I

Facts

Plaintiff was diagnosed with thyroid cancer around 2012 and 2013. She was recruited by the defendant for employment as an over the road truck driver, and she attended the training orientation at Tunnel Hill, Georgia, during which she filled out a medical history form in which she disclosed she previously had thyroid cancer. A manager allegedly pulled plaintiff aside several times during the training to inquire about her health and ability to work in light of her prior cancer diagnosis. Each time, plaintiff insisted that she was in good health, willing and able to work, and that she was healthy and had been in remission since 2013. After the manager told her she could become sick while driving and become a liability, plaintiff researched the law and returned to the training to inform the manager that it was discriminatory for the company to deny her employment because of her history of cancer. Later that same day, the manager pulled the plaintiff from training to meet with him and the company’s human resources representative, during which they informed her of her removal from the training purportedly due to her driving record. However, plaintiff contended that defendant approved her driving record prior to the training and that her record only contained minor incidents similar to other similarly experienced drivers. Defendant filed a motion to dismiss.

II

Court’s Reasoning

In denying defendant’s motion to dismiss, the Northern District of Alabama reasoned as follows:

  1. 42 U.S.C. § 12203(a) prohibits retaliation against an individual because the individual opposed any act or practice made unlawful by the ADA.
  2. To make a prima facie case of retaliation, a plaintiff has to show that she: 1) engaged in statutorily protected conduct; 2) suffered an adverse employment action; and 3) there was a causal connection between the protected conduct and the adverse employment action.
  3. When it comes to retaliation, it isn’t necessary for a plaintiff to prove that the underlying discriminatory conduct she opposed was actually unlawful, but rather the plaintiff must show a good faith reasonable subjective belief that the employer was engaged in an unlawful employment practice so long as that belief is objectively reasonable in light of the facts and record presented.
  4. Plaintiff sufficiently pled engagement in a protected activity and a causal connection to the adverse employment action. In particular: 1) plaintiff alleged that after being pulled out of training, she performed an online search related to employment discrimination and shared the results with the manager by telling him it was discriminatory for her to be denied employment because of her previous history of cancer.
  5. Plaintiff’s allegations rise above mere speculation because existing substantive law establishes the reasonableness of her belief the defendant engaged in an unlawful employment practice.
  6. With respect to the causal connection, plaintiff has to demonstrate that the decision-makers were aware of the protected conduct and that the protected activity and the adverse actions were not wholly unrelated. One of the ways plaintiffs do that is showing a close temporal proximity between the protected activity and the adverse action.
  7. Plaintiff sufficiently alleged facts suggesting a temporal proximity between the protected activity and the adverse action. In particular, after plaintiff informed the manager about her research on discrimination and disability, that same day the manager pulled her aside for a meeting with the human resource representative who informed her that she was no longer a candidate for the truck driving position.
  8. While it is possible that plaintiff’s driving record prevented her from being further considered, at the stage of a motion to dismiss, plaintiff’s pleading must be taken as true. Here, plaintiff contended that defendant had approved her driving record before training began, and her record became an issue only after she raised her discrimination concerns.
  9. The ADA provides that an employer cannot require a medical examination and cannot make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless the examination or inquiry is job-related and consistent with business necessity. An employer does have the right to make inquiries into the ability of an employee to perform essential functions of the job. The key here is that the manager purportedly pulled the plaintiff aside several times during the training to follow up on her medical questionnaire and inquire about her health. During those conversations, the plaintiff alleged that the manager called her a liability even though she insisted she had no significant chance of relapse and was in good health, willing, and able to do the job.
  10. In the 11th Circuit, a private right of action exists under the ADA for a prohibited medical inquiry in the pre-offer phase of the job application process, irrespective of disability status.
  11. A company does not have an unfettered right to make disability inquiries and conduct medical examinations. For example, the withdrawal of a conditional offer after a job applicant revealed a prior back surgery is not acceptable under the ADA because there was no individualized assessment as to applicant’ ability to perform essential functions.
  12. Plaintiff alleged: the manager removed her from training multiple times; repeatedly ignored her representation that her cancer was in remission; and that she posed no threat. Further, the manager in the company purportedly ended her training solely based on their own assessment about her abilities without consulting her medical providers to show the job-related and business necessity of the inquiry. Accordingly, plaintiff sufficiently alleged that the defendant made inquiries likely to elicit information about a disability in violation of the ADA’s prohibition against pre-employment medical inquiries.

III

Takeaways

  1. We have discussed the pre-employment medical inquiries scheme and what it means to be job-related and consistent with business necessity here.
  2. I have read many articles in numerous places saying that there is a tremendous shortage of over the road truck drivers, and especially women drivers. It would seem to me that it would be in the best interest of a truck driving company to adhere closely to the ADA medical inquiries scheme in order to maximize the possibility of bringing on over the road truck drivers in light of the incredible shortage.
  3. It is mind-boggling to me why the case didn’t settle prior to the motion to dismiss. I would expect it to settle now. The court’s opinion pretty clearly lets readers know that the defendant is probably in deep trouble here, which wouldn’t surprise readers of this blog.
  4. When it comes to retaliation, the key is whether a plaintiff has a good faith reasonable subjective belief that his or her employer is engaged in an unlawful employment practice. Whether that is actually the case as a matter of law doesn’t matter.
  5. You don’t have to have a disability to allege a violation of the ADA prohibited medical inquiries scheme.
  6. In the 11th Circuit, a private right of action exists with respect to violations of the prohibited medical inquiries scheme.
  7. Always a mistake to terminate a person with a disability without engaging in an individualized analysis of the situation.
  8. Always a mistake to not engage in the interactive process with a person with a disability.
  9. For the disability related inquiry violation to occur under the ADA, the plaintiff has to show that the inquiry is likely to elicit information about a disability. My position has long been that when it comes to the analysis of whether an inquiry is likely to elicit information about a disability, an employer is well served to have persons with disabilities involved in that determination.
  10. Despite what it looks like, this case is not a fear of future disability case, which we discussed here, at all. Rather, it is a record of a disability case.
  11. In this blog entry, I discussed the situation where the human resources department did the right thing. I can’t say that here. The principles involved here are well-known to readers of this blog. Human resources should have stepped up to stop this process rather than go along with it. Also, if human resources did not feel comfortable stepping up, human resources should have at least suggested bringing in an ADA knowledgeable attorney. If either would have occurred, chances are very high, assuming the facts are indeed what the plaintiff has alleged, that this situation would have been stopped in its tracks, and the company would have had a competent sorely needed over the road truck driver. The company would have also saved considerable litigation costs.
  12. The Internet can be a boon for a person establishing a good faith belief of employer conduct violating the law. For example, it is certainly possible with respect to these facts that the plaintiff could have found her answers allowing her to reach the conclusion she did in Robin Shea’s, Eric Meyer’s, Jon Hyman’s, or even this blog (Robin’s-labor and employment law insider blog- , Eric’s -the employer handbook blog-, and Jon’s- Ohio employer’s law blog- are all in my blog roll. Further, there are other labor and employment law blogs where she could have found her answers in as well).
  13. I just don’t understand how these mistakes keep happening. Who is doing the training and how often? Where is ADA knowledgeable legal counsel? Well… y’all know where to find me;-)